Wednesday, July 04, 2007

Commuting Scooter Libby's Sentence

Who deserves to have their sentence commuted? Anyone whose sentence is excessively harsh.

Sometimes the criminal justice system orders harsh sentences in order to "convince" the accused to "flip" on higher-ups. In such cases the harsh sentences are frequently reduced.

President Bush has not created a record that he is generally concerned to use his constitutional power to commute sentences (Article II, section 2) when they are excessive. Having been the president in recent memory who has used this power the least, it really is not believable that his commutation of Scooter Libby's 2 1/2 year prison sentence for lying to the grand jury is motivated exclusively -- or even a little bit -- by a tender feeling that excessively harsh sentences should generally be commuted.

Indeed, looking at his record, that this is the reason that motivates him to commute Scooter Libby's sentence is utterly implausible. He has pending before him (in the office of his Pardon Attorney) about 3000 petitions for commutation of sentence.

Just consider one case, that of Clarence Aaron. His case has been repeatedly brought to President Bush's attention by the valiant effort of Deborah Saunders, conservative columnist for the San Francisco Chronicle. Aaron, pleaded not guility, and a jury found him guilty of being part of a cocaine purchase for a crack dealing organization in Mobile, Alabama. Pursuant to the Sentencing Guidelines for the quantity of cocaine said to have been involved (enough to fill a briefcase), even as a go-between who was never going to receive any of the profit of the drug deal, because the quantity, he was sentenced three terms of life imprisonment. Aaron, whose case was featured on PBS Television's Frontline in 1999, was a college student when he was brought into the case by his buddies from home. The leaders of the organization worked out plea deals and are all out of prison now, but Aaron is destined to die in prison unless a president commutes his sentence.

No, a revulsion for excessively harsh sentences has not been a part of the character of President Bush. Why else might he have pardoned Vice President Cheney's former chief of staff?

If one recalls the case of Watergate burglars of June 1972 who were sentenced to prison of Judge "Maximum" John Sirica in 1973, one of them, James McCord, facing years in prison, broke, and informed Judge Sirica about what McCord said was a wide ranging coverup of the burglary. McCord, it turned out, was telling the truth.

The question that must have troubled the President and his close aides was whether, once sentence to prison, Scooter Libby, with young children, was prepared to "rot in prison" and "take the fall." The President or his advisers must have wondered whether Libby might find irresistible the temptation to use his "get out of jail ticket" -- that is reveal to the prosecutor his knowledge of who directed the leaking of Valerie Plame's name and identity as a secret agent for the CIA.

As a general matter, the President should not be chastised for using his power to grant reprieves and pardons. It is important that the President use his powers appropriately. (In fact, the practice of regularly exercising his actual powers may serve to minimize the drive to claim powers he does not have.) The power to grant reprieves and pardons was seen by the framers of the Constitution as very important. It is in the same sentence that names him Commander in Chief of the Army and Navy!

The justice system would be well served by a more frequent use of the power to commute sentences. But it corrupts the justice system to use such favors only for close cronies, and deny the real reasons behind the selection of beneficiaries of this important power.

It appears that the President is prepared to take the likely considerable political flak for this commutation of sentence in exchange for protecting extremely senior figures in his Administration from the possibility that Scooter Libby might have decided that his imprisonment was unfair.

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