A Funny Thing Happened on the Way to The (Almost) Pardon

A lot of ink (or e-ink) has been spilled today about Bush’s commutation of Scooter Libby’s sentence. Scott touched on Bush’s consistency when it comes to pardons — loyalty is the get out of jail free card.

But what I’m interested in is his inconsistency. From the President’s statement regarding the commutation:

I respect the jury’s verdict. But I have concluded that the prison sentence given to Mr. Libby is excessive. Therefore, I am commuting the portion of Mr. Libby’s sentence that required him to spend thirty months in prison.

My decision to commute his prison sentence leaves in place a harsh punishment for Mr. Libby. The reputation he gained through his years of public service and professional work in the legal community is forever damaged. His wife and young children have also suffered immensely. He will remain on probation. The significant fines imposed by the judge will remain in effect. The consequences of his felony conviction on his former life as a lawyer, public servant, and private citizen will be long-lasting.

Here’s an excerpt from a recent CBS news article about the Bush administration’s stance on sentencing gudelines:

The Bush administration is trying to roll back a Supreme Court decision by pushing legislation that would require prison time for nearly all criminals. […]

In a speech June 1 to announce the bill, Attorney General Alberto Gonzales urged Congress to re-impose mandatory minimum prison sentences against federal convicts — and not let judges consider such penalties “merely a suggestion.”

Hm. So in commuting Libby’s sentence, Bush touted exactly the same arguments that have been used to oppose the sentencing schemes he and his administration support. The NY Times’s Adam Liptak, who consistently writes thoughtfully about criminal justice stuff, puts it better than I could:

Critics of the system have a long list of complaints. Sentences, they say, are too harsh. Judges are allowed to take account of facts not proven to the jury. The defendant’s positive contributions are ignored, as is the collateral damage that imprisonment causes the families involved.

On Monday, Mr. Bush made use of every element of that critique in a detailed statement setting out his reasons for commuting Mr. Libby’s sentence — handing an unexpected gift to defense lawyers around the country, who scrambled to make use of the president’s arguments in their own cases.

Given the administration’s tough stand on sentencing, the president’s arguments left experts in sentencing law scratching their heads.

In doing so, Bush might have been too clever by half. Wouldn’t be the first time. Here’s why: Bush’s proclamation that Libby’s sentence was too severe based the claim on Libby’s personal and professional history, on family, on all the things that Bush thinks judges should NOT take into account. funny that. As a result, Bush has given defense lawyers a powerful tool. In the words of the lawyer defending Alabama’s former governor, who received 88 months for obstructing justice, “It’s far more important than if he’d just pardoned Libby,” Ms. James [the lawyer] said, as forgiving a given offense as an act of executive grace would have had only political repercussions. “What you’re going to see is people like me quoting President Bush in every pleading that comes across every federal judge’s desk.”

Funnier still: Libby’s sentence of 30 months is not actually all that severe compared to analogous convictions. So Bush has doubly shot himself in the foot: he undercut his administration’s own stance on sentencing. And he blew it on a sentence that wasn’t even so bad.*

The wonders of the Bush administration really do never cease.

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* Again, comparatively speaking. I wouldn’t support incarceration for nonviolent offenses more generally. But given that we do live in a society that counsels the prison industrial complex.