Friday, July 6, 2007

Libby Sentencing Again

To any of those on the Right who continue to assert that somehow Libby received an abnormal sentence in his case, I would encourage you to consider going to the nearest federal district court in your area on a day where they do federal sentencings.

You are likely to see several people with no previous record who have gotten caught up in federal prosecutions and received jail time for offenses that most people would never be prosecuted for.

You will notice that the Probation Officer will submit a report in which various potentially mitigating aspects are discussed. Nevertheless, the final recommendation is based upon the sentencing algorithm and is always higher for individuals who go to trial, like Libby, rather than plead guilty.

You will hear federal prosecutor after prosecutor arguing that lack of previous record has already been considered in the guidelines. Indeed, it is part of the basic algorithm. You will hear them argue with respect to public employees, that such people should in fact receive greater punishment for betraying the public trust. You will hear them argue that losing a law license is immaterial with respect to sentencing, as is dangerousness. You will hear them tell the judge that all varieties of acquitted or uncharged conduct should be imputed to the defendant to increase his sentence.

You will see the tears of the family members and friends upon seeing loved ones who are a threat to no one go away for long periods of time.

Perhaps at that point, you will realize that for many the issue is not whether or not the President had the power to do what he did, it is the raw, rank hypocrisy of Bush's commenting that the system behaved unfairly with respect to Libby, when in fact, the system behave exactly as Bush and the Republicans have always argued that it should and exactly as it does virtually every single day during federal sentencings in the nation that imprisons the most people per capita in the world.

Thursday, July 5, 2007

Federal Sentencing and Fairness

It is startling just how ignorant people on the right are about the federal criminal sentencing processes. Ben Stein has a column in the American Spectator to apparently say whatever he wants, regardless of whether it has any basis in reality. I have seen similar articles in other web locations such as and TCSdaily, where the writers show a basic ignorance (if not abject ignorance) as to how our federal system functions. Perhaps Ben Stein or somebody from TCS or the Wall Street Journal should call Tony Rudy or some of the other unfairly charged Abramoff defendants and ask them how the system functions with respect to first offenders, rather than spouting off some nonsense that they believe they learned from the Law and Order television program.

I have not seen a single person with a column among Republicans lift one finger to help Tony Rudy, while they bend over backward to defend the Libby pardon, which is violative of every single Republican sentencing precept of the last 8 years.

Libby Pardon Fall-out

This reminds me a bit of when Apprendi, a significant Supreme Court sentencing case came out. The New York Times was going on and on about some mundane issue, while I remember thinking to myself, people outside the field of criminal law have no idea how big the Apprendi decision is.

I often tell non-lawyers that I have a 25-year lag theory regarding the public's knowledge of criminal procedure. The American man in the street still believes it is easy to "get off" by pleading insanity; he believes that all felons are out in 6 months; he believes that it is easy to get cases thrown out due to evidentiary loopholes and he believes that there is no system more fair than the American system of justice.

The Libby pardon proves the point. From their statements, neither Tony Snow nor the President have any understanding of how sentencing works under the federal guidelines, which have only been in existence now for 23 years. In spite of the recent Supreme Court Rita case, in which Bush's Justice Department argued against the very rationales (and won) Bush gave for commuting Libby's sentence, I believe that Bush's gaffe in this manner by not simply pardoning on grounds of mercy is going to sway a lot of judges, even though they may not admit it in court.

I think all throughout the media, we are seeing confusion as to the jury's role in federal sentencing, which is very different from most states. In some states, like Virginia, for example, juries may give sentence recommendations that may bind judges to some extent, but that is emphatically not the case in federal court.

Juries in federal court have nothing to do with sentencing. They don't recommend one and they have no idea what the sentences are likely to be. In fact, jurors often indicate that they would not have convicted had they known that the federal sentence was ten times what they had thought it would be.

The jurors vote up or down on individual counts, which assuming a conviction, are then put into a highly complex formula that attempts to set a monthly range for that defendant's sentence, based upon criminal history, acceptance of responsibility, level of culpability and at times, cooperation. In spite of its purported goal of making sentences fair for everyone, it only accomplishes this by making sentences draconian and restricting judges from lowering them, something Bush has promoted with more vigor than even Clinton or his father.

The issue thus, is the blatant hypocrisy, which given that Bush and his spokesman, Tony Snow seem oblivious to how the Guidelines work, could actually be nothing more than abject ignorance, if that makes those of you on the Right feel better about your President.

Ultimately, Bush articulated the very same reasons that criminal defense attorneys always elucidate on behalf of their defendants. While this may not carry a precedential force of law, it certainly may portend a turning point, as ideas cannot easily be bottled up once unleased.

Until about 2 years ago, the formula was basically automatic and unappealable. Judges have slightly more leeway now but the Bush administration and the Republicans have sought to restrict even that bit of leeway, thus resulting in the unassailable charge of hypocrisy against King George. Starting with Libby, things may now begin to change.

Tuesday, July 3, 2007

More on Scooter Libby

While Bush's decision is obviously abhorrent to almost any rational person, it is extremely beneficial to Tony.

Like most Republicans, and unfortunately most lawyers, Bush has no idea how the federal sentencing system operates and he employed virtually all of the standard defense arguments that his own Justice Department has argued against to prop up the sentencing guidelines against Scalia and Thomas's arguments for abolishment. All of the things Bush cited in his order are the same arguments that his very own Justice Department has sought to abolish as a matter of law. The utter and complete hypocrisy of Bush and the GOP is going to benefit thousands of defendants in the long run.

So, I say, thank you, George. You are an utter, genius, even better at managing legal affairs than you are at managing the war in Iraq.

Housing Bubble?

You really have to wonder when you see stories like this:

"Bolivian immigrants Marcelo Ortega, a dump truck driver, and his wife, Jenny, who cleans houses, bought a brick-front Colonial in Herndon for $549,000 in February 2006. The payments are $4,200 a month, which grew unbearable as residential construction work slowed and Ortega's income dropped."

How could such a loan have been approved?

Marcelo notes that "My wife loves this house."

Who wouldn't?

Libby Pardon

In spite of all the complaining on the Left, Bush is now on record as stating that the sentencing guidelines can be excessive. This is significant because his administration has strongly opposed any efforts to weaken the guidelines authority and (Clinton also) has argued that in fact, the guidelines are virtually always correct and should seldom be departed from.

The truth is, that there is very little about Scooter Libby's case that differs from other run of the mill white collar cases under the federal system. Unlike what Bush claimed, such defendants virtually never have a criminal record and virtually never received jail time before the imposition of the sentencing guidelines. Bush has now publicly stated that the guidelines can result in excessive sentences and I expect to see many defendants and their lawyers using Bush's language in future briefs. I also think that Courts of Appeal are likely to take Bush at his word and will begin to grant many more departures for defendants in general, given their often excessive nature.

In summary, what Bush did is great for defendants and their lawyers. Once again, thinking that he is smarter than everyone else, Bush made his decision essentially without consultation and has come up with a decision that is a nightmare for the standard Republican argument on crime and something that will be a nightmare for prosecutors to deal with. Bush has come out and made all the arguments against the federal criminal justice system that many liberals and libertarians have been trying to make for years.

For those who are upset, look past Libby and be glad that many future defendants are likely to benefit from this.

So, those of us who believe the system is unfair should recognize that Bush has done a potential favor for all current and future defendants.