July 3, 2007
"Far from a Slap on the Wrist" - Libby's Sentence
"Far from a slap on the wrist," is what Tony Snow, white house spokesperson, said when talking about the fact that President Bush decided to commute Libby's sentence so that he will not have to serve any jail time. After all, Libby will have probation or is it supervised release, a fine, and the collateral consequences that white collar offenders often face. The court is faced with an unusual circumstance of how to deal with the supervised release in light of the fact that the accused did not serve a prison sentence. The courts order requesting the government and defense to submit briefs on this issue and commentary can be found here on Doug Berman's Sentencing Law & Policy Blog.
But will Libby be required to suffer all the indignities suffered by other offenders? Will he have to pee in a cup? If it becomes probation then 18 U.S.C. 3563 (5) may apply, which states:
"for a felony, a misdemeanor, or an infraction, that the defendant refrain from any unlawful use of a controlled substance and submit to one drug test within 15 days of release on probation and at least 2 periodic drug tests thereafter (as determined by the court) for use of a controlled substance, but the condition stated in this paragraph may be ameliorated or suspended by the court for any individual defendant if the defendant's presentence report or other reliable sentencing information indicates a low risk of future substance abuse by the defendant;"
Will the court waive this one? Or will this be the point that President Bush steps in to pardon Libby? (see NYTimes article discussing Bush's response to a question on a possible pardon of Libby)
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Ellen: I have a detailed commentary on the legalities of the post-commutation supervised release situation over at TalkLeft. Libby's supervision is not probation (despite the inaccurate White House press release -- what do they know about law in the White House, anyway?). It's supervised release, which the commutation expressly "left intact" (read the actual Proclamation). (Also, the drug test condition is required for SR as much as for probation. 18 USC 3583(d).) As I discuss at TalkLeft, the judge on Monday has authority to set a hearing to modify the conditions of supervision in light of the significantly changed circumstances. Modification of conditions can include adding a requirement of home confinement, or even periodic imprisonment for as much as a year. 18 USC 3583(e)(3).
Posted by: Peter G | Jul 4, 2007 6:13:48 PM