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June 7, 2007
The Hypocrisy in William Otis's Argument for a Commutation of Scooter Libby's Sentence
"This was an unusually harsh sentence for a first offender convicted of a nonviolent and non-drug-related crime. . . . Neither vindication of the rule of law nor any other aspect of the public interest requires that Libby go to prison. He is by no stretch a danger to the community, as 'danger' is commonly understood. He did not commit his crime out of greed or personal malice. Nor is his life one that bespeaks a criminal turn of mind."Over at Volokh, Jonathan Adler praises Otis's argument. But I think it's garbage -- and surprising garbage, given that it's from the pen of an expert on the federal sentencing guidelines who has argued powerfully against the very sort of freewheeling leniency he now espouses.
The judge sentenced Libby to 30 months -- the lowest sentence from within the range of 30 to 37 months determined by the federal sentencing guidelines. (The judge rejected a guideline calculation that would have produced a range of 15 to 21 months -- more lenient, but a far cry from the out-and-out commutation that Otis contends for.)
In producing those potential ranges, the sentencing guidelines already take into consideration each of the factors Otis cites in support of Libby's escaping jail time.
First offender? Yes, the guidelines take that into account.
Nonviolent offense? Check.
Not drug-related? Yes, it's in there.
Degree of danger? Yup.
Absence of greed or malice? Also.
This is how the guidelines work, as Mr. Otis knows: they take these sorts of factors into account in producing the suggested sentencing ranges. It is only in those cases where some highly unusual factor that the sentencing guidelines do not already take into account is present that offenders ought to do less time than the guidelines suggest.
To be sure, today Mr. Otis is arguing for a discretionary executive commutation of a sentence in order to avoid all prison time, rather than a judicial "downward departure" from the guideline range.
But what a hollow argument from someone who, like me, used to be a federal appellate prosecutor, and who, just 7 years ago, decried sentencing leniency in testimony before a subcommittee of the Senate Judiciary Committee:
"The Guidelines are being increasingly swallowed by downward departures. These departures, both in absolute numbers and as a percentage of all sentences, have increased every year from 1992 through 1999. At the beginning of the 1990s, sentences were imposed within the guidelines range in about four-fifths of the cases; by last year, it was less than two-thirds. The current guidelines compliance rate is, in other words, a little above 60%. That means that, as we speak, we are perilously close to sliding back to the subjective, idiosyncratic and gratuitously lenient sentencing of the old system -- but less honest than the old system, because the public has been led to believe that now we have rules, when increasingly, as a practical matter, we don't....Surely it cannot be Mr. Otis's position that no first-offending, non-violent, non-greedy obstructer of justice ought to do jail time. That is certainly not the position of the sentencing guidelines, whose "fairness" and "consistency" Mr. Otis has publicly lauded.What are the reasons for the national slide, and why has the Eastern District of Virginia escaped it? The slide began when the Commission whose term recently ended replaced clear guidance about the limited role of departures with more ambivalent language, creating increased wiggle room for judges who wanted to take it. In many jurisdictions they did. Fuzzy language in the Guidelines expanded it into gigantic new loopholes, and downward departures sprang up for novel reasons that ranged from the questionable to the absurd ....
Every downward departure means another criminal back on the street before he would have been had the Guidelines been followed -- back on the street to rob your bank, hijack your car, or sell drugs to your child. Yet, over the last seven years, the Department's efforts to constrain these departures have all but vanished.
Mr. Chairman, even the best of laws is no more effective than its enforcement. The Sentencing Reform Act is in my view -- a view formed through more than 20 years as a federal prosecutor -- among the best of laws, because of the fairness, consistency and visibility it has brought to sentencing, and perhaps even more because of what it has done to depress the crime rate and secure for our citizens their right to live in peace and safety."
So why exactly should Scooter Libby walk?
Posted by Eric at June 7, 2007 11:55 AM
Comments
ERic, I enjoy visiting your blog. Would you consider slightly changing the format such that the author (you, guest blogger, other) is listed at the top - under the title - rather than at the bottom? Sometimes I think you are reading your stuff and then realize it's someone else's.
Also, who is Shertaugh? Is there some bio info about him somewhere on your site? Just want some background.
Posted by: Anonymous at June 7, 2007 2:42 PM
Apart from the events relating to this conviction, Mr. Libby has been, by all accounts, not only law-abiding, but an exceptional public servant. It's reasonable to presume that he took at least a six-, and perhaps seven-figure financial hit every year he worked in the Executive Branch as compared to what he made in his private law practice. He worked long hours and inspired respect and affection from peers.
Apart from these crimes, in other words, he had a positive moral and civic credit balance, if you will — and not just an absence of debits. I would suggest that strong arguments can be made that his affirmative record of dedicated, multi-decade public service turns Libby's into one of "those cases where some highly unusual factor that the sentencing guidelines do not already take into account is present[, such] that [he] ought to do less time than the guidelines suggest."
ELM: Mr. Otis's op/ed champions a position of no jail time at all. How would one justify that?
Posted by: Beldar at June 7, 2007 5:32 PM
As a non-lawyer, I am curious as to why Mr. Fitzgerald did not have to share that they knew even before the trial that Richard Armitage was the source who revealed the identity of Valery Plame. Isn't that you guys call "exculpatory"?
Posted by: ed at June 7, 2007 7:29 PM
"Not drug-related" is a factor that should get one a lighter sentence? How about, instead, a lighter sentence for "merely drug-related, in view of the fact that alcohol is legal and that the drug laws are insane and racist"?
Posted by: Henry at June 7, 2007 9:29 PM
Unlike Beldar, I don't see how Libby's government service should mean a decreased sentence. His crime was directly related to that "service" and was a betrayal of his responsibility to the country. It's like saying that a Congressman convicted of taking bribes should get credit because of his service in Congress!
Posted by: Anonymous at June 7, 2007 10:31 PM
Just because Bill Otis was wrong when he testified before the Senate Oversight Committee as he often was during those days when he testified, doesn't mean that he is once again wrong. During that testimony, for instance he failed to state, that one of the primary reasons the departure rate in the Eastern District of Virginia was below the national average had much to do with the rocket docket where substantial assistance departures were granted as Rule 35 reductions that are nowhere quantified, to my knowledge.
In fact, he is correct in at least some of the things he proposes regarding Libby today.
Where in the guidelines is there consideration of the lack of greed motivating the offense, for example?
Absent a charge that Libby was involved in outing a covert CIA operative, I think Judge Walton was right not to take that into account. The injustice is not in that Libby received a mere 30 months imprisonment. There is nothing "mere" about a single day in prison much less 30 months (27 months with good-time credit). The injustice is that so many others are imprisoned unnecessarily to such draconian terms.
Imprisonment should be "sufficient, but not greater than necessary" to provide just punishment, protect the public, deter and provide the defendant with needed rehabilitation. I don't think Libby will likely reoffend. There is no evidence to my knowledge that he was doing anything else but trying to protect his boss or others and he did not mastermind the obstruction. So, under the circumstances, thirty months is more than sufficient.
Posted by: Carmen Hernandez at June 7, 2007 11:21 PM
When a person is convicted of a malum in se crime like lying, I don't think we can presume that his prior service was free of misconduct. A cop convicted of an off-duty DUI/homicide might be able to point to a good past record, but a cop convicted of on-duty misconduct casts a shadow on the integrity of all of the prior service. Otherwise honest people don't just start lying, with no pressure; that Libby lied suggests crookedness was already in his set of strategies. Of course, maybe he's innocent, just like everyone else in prison, but the jury verdict means that has to be put aside.
Posted by: Jack at June 8, 2007 8:49 PM
Where in the guidelines is there consideration of the lack of greed motivating the offense, for example?
Terrorists aren't motivated by greed either, but I can't imagine that would justify a lighter sentence for them. Even if someone isn't motivated by direct financial gain, that doesn't mean their motives warrant leniency.
So what was Libby's motivation for lying? If Libby was aware that his actions or those of his bosses were prosecutable, then his motive was to shield criminal(s) whose crime Bush Sr. described as tantamount to treason. If, on the other hand, no one's actions were criminally prosecutable (or Libby wasn't aware that they were), then we must conclude that he obstructed an investigation into a serious breach of national security merely in order to protect himself and his bosses from embarrassment, and the point Anonymous and Jack raised becomes even more compelling. If Libby was willing to break the law and ignore the best interests of the nation in order to serve the political interests of himself or his friends in this case, why should we assume he hasn't been doing the same throughout his career or that he wouldn't do the same in the future?
Posted by: Beth at June 9, 2007 1:47 PM
Libby should not have to serve any jail time at all because as a high-ranking government official who enjoys high social position in our society is a white male and is well connected. Think of what would happen if other people like him realize that they could go to jail for committing crimes?
Sarcasm aside, how can anyone say he’s not dangerous to society? How many lives are tied into the Plame affair and by extension the Iraq War? I can’t think of something more dangerous to society than an intentional abuse of the law by the most powerful in order to hide malfeasance. He knew exactly what he was doing. If that’s not the criminal mind, I don’t know what is.
Posted by: theunbeatablekid at June 12, 2007 2:22 AM