Should Libby Have Been Required to Serve a Day in Prison?

The President's commutation of the thirty-month sentence of I. Lewis Libby has created a bit of a mess on a number of different fronts.  First, was it really a commutation?  The former Pardon Attorney at the Department of Justice, Margaret Love, explains that when the executive commutes a sentence it merely reduces the penalty, but does not eliminate it all together.  In her view, it should be termed a remission and not a commutation because Libby never served any time in prison.  While the President can issue a pardon, which would eliminate the punishment altogether, the commutation in this case is not the typical one.

To make things even more complicated, one rational offered for commuting the prison term was that Libby would still be subject to punishment,  The President's Grant of Executive Clemency (here) states that "pursuant to my powers under Article II, Section 2, of the Constitution, do hereby commute the prison terms imposed by the sentence upon the said Lewis Libby to expire immediately, leaving intact and in effect the two-year term of supervised release, with all its conditions, and all other components of the sentence."  An order (here) issued on July 3, 2007, by U.S. District Judge Reggie Walton, who presided over the trial and sentenced Libby, questions whether the term of supervised release is legally permissible.  The statue, 18 U.S.C. Sec. 3583(a), states that a term of supervised release may be imposed "after imprisonment," but of course Libby will not serve any time in prison.  The Judge has asked the parties to the litigation for their position on the issue, and in a footnote raises the question whether the views of the President should be solicited.  I doubt either party will encourage such a submission, and I suspect that even if asked, the White House would decline to participate lest it become mired further in the prosecution of Libby.

Finally, would any prison sentence have been acceptable to the President?  While the U.S. Probation Office recommended a downward departure from the 10-16 month range called for by the Federal Sentencing Guidelines under its calculation, it did not recommend a specific term or even probation.  But, according to the President's Press Secretary, Tony Snow, any time in prison would have been "excessive" and therefore would have triggered the grant of executive clemency, perhaps even a day.  In a statement to the press (here), Snow asserted that "he [the President] said it was excessive, and he thought that any jail time was excessive. And therefore, he did not see fit to have Scooter Libby taken to jail." [Italics added]  Snow went on to note, "You have obstruction of justice, and then you have mitigating factors that bumps it down. And the bump down gets you, according, again, to the parole commission, to an area where it would be appropriate, it would be within acceptable guidelines to have such things as home detention or probation. Probation is something that is going to be required in this case."  Probation -- actually supervised release, but the Press Secretary may have watched one too many Law & Order episodes -- appears to have played a key role in the President's analysis of what was an "excessive" sentence, but in fact it may be off the table now under the governing statute for a term of supervised release.

Commutation, or remission, is certainly half-a-loaf, which may have been the President's design all along because a full pardon would have been viewed as a complete usurpation of the judicial process before the court of appeals even heard the case.  But issuing it before the sentence began, even for a day, sends the message that factors outside the normal considerations of the appropriate punishment were at work in this case.  When a term like "excessive" is used to justify the decision, the obvious question is, "Compared to what?"  The Eighth Amendment contains a prohibition on excessive fines, which requires some consideration of the severity of the underlying violation.  Similarly, the Supreme Court's pre-Booker analysis of sentencing departures in Koon required that the case be "outside the heartland" before a judge could grant a departure, meaning that it must be extraordinary compared to other cases.  What makes the Libby sentence so different from those imposed in other perjury and obstruction of justice prosecutions, or other such defendants if one wishes to focus on the individual?  The President's commutation means that there will not even be a term of home confinement, resulting in a punishment far less than almost all sentences for a felony in the federal system.  Libby's public service and the fact that he is a first-time offender do not appear to be so distinctive as to require that there be no form of confinement, unless one wishes to make public servants convicted of crimes largely immune to prison terms because virtually none will ever have a prior conviction.  Perhaps it is as simple as sentencing czar Doug Berman is quoted as stating in a Washington Post article (here) about the President's decision: "My friend Scooter shouldn't have to serve 30 months in prison because I don't want him to." (ph)