A couple of days ago, President Bush commuted Scooter Libby's 2 1/2 year jail sentence. The commutation came within hours of the DC Circuit's denial of Libby's emergency appeal of the District Court Judge's decision that Libby should remain in prison while he awaited the results of his broader appeal. In short, the president's commutation of Libby's sentence was timed to ensure that Libby would not have to spend a minute in jail.

In commuting Libby's sentence, the president remarked that he had "concluded that the prison sentence given to Mr. Libby [was] excessive. Therefore, [he] commut[ed] the portion of Mr. Libby’s sentence that required him to spend thirty months in prison." What's troubling about this is that the reasoning contradicts the entire philosophy upon which we sentence criminals in federal courts.

In the federal system we sentence criminals in accordance with the Federal Sentencing Guidelines. The Federal Sentencing Guidelines were created to remedy the seeming injustice of wildly divergent sentences in criminal cases. It used to be that judges had nearly complete discretion in crafting sentences. They could take whatver factors they liked into account and sentence criminals however the wished, subject only to whatever statutory minima or maxima may exist.

Imagine two criminals from similar backgrounds who committed the same crime in the same judicial district, but who have their trials assigned to two different judges. Criminal A gets Maximum Bob while Criminal B gets Probation Pete. Maximum Bob was appointed by a tough-on-crime president, and he believes in giving every criminal the maximum sentence allowed by law, so Criminal A gets 10 years. Probation Pete was appointed by a liberal reformist president. He believes everyone deserves a second chance, so he gives 6 months probation to every first-time non-violent offender, which is exactly what Criminal B gets. The only distinction between A and B is the luck of the draw as to which judge their case was assigned to.

On a systemic basis, this makes people squeamish. If we had some ideal judge, some judicial Hercules, and we could clone her and appoint her to every district court bench in the nation, thereby ensuring that luck-of-the-judicial-draw was not a factor in sentencing outcomes, the problem wouldn't exist. But we can't, so it does.

The solution was the sentencing guidelines. The sentencing guidelines are crafted by the United States Sentencing Commission, a permanent commission of the Federal Judiciary. The USSC has 7 members, each one appointed by the president and confirmed by the Senate to six-year terms. No more than 3 may be federal judges and no more than 4 may belong to the same party. Sentencing under the guidelines is largely a mathematical process. The judge first calculates the offense level. She starts from a baseline level for whatever the crime is. She then adds or subtracts points from the offense level based on other relevant factors. The just must then compute the criminal history level by looking at any prior convictions. Once she has an offense level and a criminal history level, she consults a grid which tells her the range of sentences that she can give.

As an example, suppose you have a single mother convicted of posession of narcotics with intent to distribute. She's 25 years old and the sole support for her children. She has a high school diploma and has worked since graduation cleaning bathtubs at a shop that sells bathroom fixtures. Her employer reports that she is generally good at her job, has been known to miss days periodically when childcare emergencies arose, but has overall been a fine employee. She attends church weekly and is a junior member of the church's governing committee. It's her first offense and she played only a minor role: knowing that a bag contained drugs, she agreed to hold it until the dealer returned to pick it up. The bag contained 5 kilograms of marijuana. She hid the bag in a supply closet in the church's meeting room, which she could access by dint of her membership on the committee. After her arrest she insisted on going to trial, arguing that holding the drugs for a friend shouldn't be considered trafficking, and she maintains the injustice of her conviction through the sentencing.

Based on this we consult the guidelines: Section 2D1.1(c)(13) tells us that the base offense level for possession of 5 kilograms of marijuana is 14. She played only a minor role in the crime, which under section 3B1.2(b) entitles her to a reduction of 2 levels to offense level 12. Because she has not accepted responsibility for her crime, she does not receive a 2 level reduction under section 3E1.1(a). Because her crime involved an abuse of a position of private trust (using her access to the meeting room to aid in the commission of the crime) two levels are added to her offense under Section 3B1.3, bringing her back up to 14. Sections 5H1.1, 5H1.2, 5H1.5, 5H1.6, 5H1.10, and 5H1.11 tell us that her age, education, employment record, family ties and responsibilities, religion and socio-economic status, and charitable or public service are not ordinarily relevant in determining her sentence. She has no prior arrests, so her criminal history level is 0.

Consulting the sentencing table at Chapter 5, Part A for an offense level of 14 and criminal history of 0, we learn that the guidelines range for her sentence is 15 to 21 months in prison. The judge has discretion to sentence her anywhere within that range.

My point is this: in commuting Libby's sentence, Bush argued that the sentence was inappropriate given that Libby was a first-time non-violent offender and in light of Libby's "years of exceptional public service.” But Libby was not a sinner in the hands of an angry judge; the judge's discretion as to the sentencing was minimal. Libby was sentenced according to a mathematical formula. That formula takes into account the type of offense. It takes into account the fact that he was a first-time offender. The formula does not take into account his years of exceptional public service, but only because the Sentencing Commission has considered those factors and explicitly declared that they are irrelevant to sentencing. Libby was not screwed by a partisan judge. He was sentenced in accordance with a mathematical formula that we use to sentence hundreds of offenders every day in America, and his case presents no special circumstances that aren't already either taken into account or rejected as irrelevant by the guidelines. Other than, of course, the circumstance of being friends with someone who has the power to commute your sentence.

If the president is serious about his stated reasons for commuting Libby's sentence, then his disagreement is not with the conduct of one judge but rather with the entire scheme under which we sentence prisoners in the federal system. This should lead him to push for a reconsideration of the entire guidelines scheme, either by tweaking the relevant factors used to determine a guidelines range or by throwing out the whole mathematical sentencing system. The president's statements are not a cry in the dark by a powerless professor or an overworked defense attorney; they are pronouncements by arguably the most powerful man in the country. If he is serious about his criticism, he has the power to change what he perceives to be an unjust system for the better. If he is serious.

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This page contains a single entry by Zach published on July 4, 2007 11:13 AM.

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