July 16, 2007
Monday

President Bush's rationale for sparing Lewis "Scooter" Libby from prison -- that his 2-1/2-year sentence was more severe than the former vice-presidential aide deserved for lying to a grand jury -- is at odds with his support of new legislation that, by the administration's description, would make such sentences mandatory.

The president's critics are contrasting his leniency for Libby with his overall advocacy of stiff sentences, his insistence that federal prosecutors seek strict compliance with sentencing guidelines and the Justice Department's support of life terms for petty thieves with long criminal records under California's "three strikes" law.

Defense lawyers, meanwhile, have seized on Bush's commutation to argue for lighter sentences for white-collar defendants -- filing what some attorneys are calling "Libby motions."

The administration is now proposing to toughen sentencing rules. The Justice Department announced legislation last month that it said would require federal judges to sentence criminals to at least the minimum term provided by federal guidelines -- the term that Bush found too harsh for Libby in commuting his sentence July 2.

"The legislation would restore the binding nature of the sentencing guidelines so that the bottom of the recommended sentencing range would be a minimum for judges, not merely a suggestion," Attorney General Alberto Gonzales said in a June 1 speech.

The bill, which has not yet been introduced in Congress, reflects a different attitude toward sentencing from the one Bush displayed in Libby's case.

Libby, Vice President Cheney's former chief of staff, was convicted of lying to a grand jury investigating the leak in 2003 of a CIA operative's identity. The agent, Valerie Wilson, is the wife of Joseph Wilson, who had just published an article challenging Bush's rationale for the Iraq war.

U.S. District Judge Reggie Walton, a Bush appointee, sentenced Libby on June 5 to 30 months in prison, the shortest term prescribed by federal guidelines, and a $250,000 fine. Bush left the fine intact but eliminated the prison sentence, saying Libby still faced a "harsh punishment."

"The reputation he gained through his years of public service and professional work in the legal community is forever damaged," the president said. "His wife and young children have also suffered immensely. He will remain on probation. The significant fines imposed by the judge will remain in effect. The consequences of his felony conviction on his former life as a lawyer, public servant and private citizen will be long-lasting."

Defense lawyers typically make those arguments to federal judges when seeking leniency for first-time offenders convicted of white-collar crimes, said Douglas Berman, a defense attorney, law professor at Ohio State University and blogger on sentencing issues at sentencing.typepad.com.

Invariably, he said, federal prosecutors argue that those factors are irrelevant and that the only defendants worthy of lenience are those who plead guilty and cooperate with authorities -- not those who, like Libby, exercise their right to go to trial.

"To have the attorney general seek to tie judges' hands to force them to follow the strictures of the guidelines ... and then to have the president come along and say the sentence imposed by Judge Walton was excessive was jarring, to say the least, and hypocritical, to say the most," Berman said.

Jeffrey Fisher, a Stanford University law professor and defense attorney, said Bush's rationale -- that the guidelines would produce an unfair sentence in this case -- is "exactly what defense lawyers argue all the time and what DOJ (the Department of Justice) opposes all the time. It's also an argument that the DOJ legislative proposal aims to take off the table in court."

Trey Bohn, a White House spokesman, said Bush had commuted Libby's sentence under a constitutional power that he has used very sparingly.

"The founders accorded this power to the president because they recognized that even the best justice system sometimes erred," Bohn said. "The president supports the sentencing guidelines because he believes they result in a fair and more impartial system of justice."

The guidelines were drafted by the U.S. Sentencing Commission, a presidentially appointed body created by a 1984 law that was designed to make sentences more uniform by reducing judges' discretion. They set a range of recommended terms for each crime, based on the seriousness of the offense and the defendant's record.

The Justice Department's proposed legislation is intended to counteract a January 2005 Supreme Court ruling that increased judges' authority to sentence above or below the guideline range.

The Sentencing Commission reported that average federal sentences have increased slightly since the ruling. But Justice Department official William Mercer told a House subcommittee in March 2006 that there were "hundreds and hundreds of examples" of reduced sentences, including "drug-trafficking cases, sex-abuse cases and even terrorism cases."

The department responded with legislation it described as requiring prison sentences at least at the minimum level recommended by the guidelines. But the bill, as drafted, does not go that far.

Justice Department spokesman Brian Roehrkasse said the bill would eliminate judges' authority to reduce sentences in all but rare circumstances. Those might include extraordinary family circumstances, he said, but not the ordinary hardships imprisonment causes to a family.

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