Tuesday, July 3, 2007
Will we be seeing defense counsel making "The Libby Motion," what will the motion contain, and how will judges react?
Clearly, every criminal defense lawyer who practices in the white collar arena is asking him or herself - why shouldn't my client have this same privilege? After all the client may have been convicted of a perjury or obstruction charge, may have children, may be suffering the collateral consequences of the loss of a law license, may have served their country - perhaps in war, and may be a first offender. Should they not receive the same sentence of "no time."
One should expect that there will be Libby Motions made, and/or motions that contain this language in a request for a departure from the guidelines. The motion will likely include a comparison to the client's circumstances with that of Libby. It will probably also contain language from the U.S. Sentencing Guidelines that speaks to a basic policy consideration of the guidelines being to obtain "reasonable uniformity in sentencing by narrowing the wide disparity in sentences imposed for similar criminal conduct." And after all, the guidelines permit departure for factors that were not considered by the U.S. Sentencing Commission. Did the Commission consider that a President would take an entire sentence and commute it prior to the individual even seeing one day in jail? And understanding that the U.S. Sentencing Commission did not consider this, should a departure therefore be allowed?
And the judges, what will they do with these motions? The activist ones - might follow the activist executive and say - yes this is grounds for departure. But more likely we will see judges continue to follow the flow of the guidelines and sentence individuals as if the Libby case did not exist.
And we law professors will be left to try and explain this to students.