Saturday, June 2, 2007
I "Scooter" Libby is set to be sentenced Tuesday for the crimes of obstruction of justice, false statements, and perjury. The predictions are certainly the focus of much commentary (e.g., here, here, and here). But with many looking at the numbers, it is important to recognize that this sentencing presents an opportunity for a judge to look beyond numbers and sentence the individual. The defense sentencing memorandum spends the first 23 pages of the 33 page document focusing on the individual. Only after this part of the memo do we see discussion of the guidelines and the applicable law. Now there is a separate motion in opposition to the government's memo, but it is clear that the defense will be calling for the judge to sentence the individual, not individual "x" who has been convicted of committing certain crimes. The government will, as usual, likely be asking for the court to follow the strict numerical calculations of the guidelines.
In 116 Yale L.J. Pocket Part 279 (2007), I wrote, "The bottom line is that we need to return to individualizing the sentencing process because we do not sentence numbers - we sentence people. If we really believe that the time should fit the crime, then we need to start realizing that not all crimes and not all criminals are alike."
Whether this approach gives Libby a longer or shorter sentence is subject to debate. But the interesting question will be whether the judge wants to be a part of this debate, or merely plug in numbers and sentence the next defendant in the courtroom.
P.S. - Check out Professor Doug Berman's analysis on the Sentencing Law and Policy Blog here.