Libby commutation undermines federal sentence-reform effort

In 1984, Congress passed federal sentencing reform that included institution of a system of guidelines to determine the appropriate sentences for federal crimes. The Senate Report on the Sentencing Reform Act notes that prior to the act, federal judges handed down a "wide range of sentences to offenders with similar histories, convicted of similar crimes, committed under similar circumstances." The goal of the sentencing guidelines was to rectify these sentencing disparities and treat "defendants with similar records who have been found guilty of similar criminal conduct" in like fashion.

Last week, the president of the United States commuted I. Lewis "Scooter" Libby's 30-month prison sentence. His commutation statement noted that Libby's prison sentence, which fell within the sentencing guidelines, was "excessive." The president took this bold step less than two weeks after the Supreme Court ruled in Rita v. United States, at the urging of the Bush administration, that a similar sentence for a similarly situated defendant must be presumed "reasonable."

With one dramatic stroke of his executive pen, the president unwound more than two decades of effort to rationalize sentencing in federal courts.

Victor Rita was convicted of making false statements to a federal grand jury investigating whether the buyers of a gun parts kit could use the kit to make illegal machine guns. Rita, like Libby, had an exemplary background marked by service to his country. He served more than 25 years in the armed forces, during which he received 35 commendations, medals or awards. He had no relevant criminal history.

Applying the federal sentencing guidelines, the judge sentenced Rita to 33 months in prison. Rita appealed his sentence on the ground that it was not reasonable in light of his sterling background. Arguing on behalf of the Bush administration, the solicitor general of the United States urged the Supreme Court to uphold Rita's prison sentence on the ground that it fell within the sentencing guidelines and therefore appellate courts must presume the sentence to be reasonable.

The Supreme Court agreed and upheld Rita's 33-month prison sentence. Chief Justice John Roberts and Justice Samuel Alito, the president's reliably conservative appointees to the court, agreed with the administration's position and voted to uphold Rita's sentence.

"Scooter" Libby was convicted after a jury trial of lying to the grand jury and federal law-enforcement officers conducting an investigation of the unauthorized disclosure of classified information concerning the employment of Valerie Plame by the CIA. High-ranking government officials compromised Plame's identity in retaliation for her husband's criticism of one of the president's justifications for the Iraq war.

Many former and current CIA officials publicly condemned the "outing" of Plame, noting that it exposed CIA operations and assets to significant risks. At the outset of the investigation, the president himself referred to it as "a very serious matter" and promised, "our administration takes it seriously."

Under the sentencing guidelines, Libby faced a range of 30 to 37 months in prison for his offenses. The judge chose 30 months, the lightest sentence in the range. Libby's 30-month prison sentence was within the guidelines, as was Rita's 33-month sentence. Yet, Libby's guidelines sentence was deemed by the president to be "excessive" while Rita's sentence was deemed by the lawyer representing the president's views to be "reasonable." So much for avoiding sentencing disparity.

The power to grant a sentence commutation gives the president of the United States a veto power over the courts. There is no appealing the president's decision.

The commutation of Libby's prison sentence, however, may reverberate beyond the political dominion that motivated the president's decision. Judges wishing to level the playing field may exercise their considerable power to alleviate the distorting effects of this commutation by simply agreeing with the administration that absent some compelling circumstances, lying to federal investigators is not an offense that is fairly or appropriately punished by imprisonment.

Federal prosecutors — who, like the president, are members of the executive branch of government — may chafe at that suggestion, but they will be hard-pressed to complain. It does, after all, reflect the judgment of the chief executive and accomplish the Sentencing Reform Act's laudable goal of treating "defendants with similar records who have been found guilty of similar criminal conduct" in like fashion.

Robert S. Mahler is a white-collar-criminal defense lawyer in the Seattle office of Bullivant Houser Bailey. He is a former federal public defender.