Rita Filing D.O.A.

In a previous post (here), I distinguished between individual acts of clemency and sentencing policy and decision making. The observations were made in response to the very odd criticisms of the Scooter Libby commutation made by individuals with primary interest and expertise in federal sentencing policy (contra the pardon power). Among other things, I noted:

Sentencing decisions are (or can be) formally guided by policies, which may extend across several administrations. [One president's use of] the pardon power is [in] no way binding, limiting or even relevant to another's, and cannot be made so. Sentencing decisions are (or should be) guided with consideration for equal justice of the law in light of the particular circumstances of each case. [Unless] the pardon power takes the form of a general amnesty, its purpose and impact are entirely limited to the individual recipient.

On Monday, lawyers for Victor Rita filed a petition with the United States Supreme Court which would appear to deny all of the above principles of distinction, and some. Amazingly, at page 9, the motion reads:

The latest move by the Executive Branch reflects a policy change that a sentence under a properly calculated Guideline range is excessive and cannot be deemed reasonable, let along presumptively reasonable. [It] has adopted a new position regarding sentencing

The "move" in question is President Bush's commutation of the sentence of Scooter Libby. Thus, the petition actually claims that the commutation represented a "new position" regarding overall sentencing policy, for the entire federal system. On the contrary, the commutation represented one president's view of "excessive" punishment with respect to one case and a single individual. It was in no sense of the language a "policy change." Nor can it reasonably be considered such. Unless, of course, you are a desperate defense lawyer, looking for a little publicity and a like-minded judge or two. Individual acts of clemency have never been thought to constitute aggregate policy, or even imagined to contain a retroactive, class-action like component ... and with good reason.

Presumably, the Supreme Court will deny the application for writ of certiorari (as it usually does) and waste not time providing commentary on the basic distinctions between sentencing policy and individual grants of clemency. I am thinking that might be what we silly bloggers are for! My previous post also notes:

Sentencing decisions can be shifted, in aggregate, in a more lenient or severe direction, by the decision making of the legislature or the judiciary. The pardon power cannot be restricted, in any way, by either the legislative or judicial branch.

And yet the Rita petition boldly proclaims:

The recent statement by the President, released in conjunction with his commutation of Mr. Libby's sentence, directly conflicts with the federal sentencing policy espoused by the Administration

This would appear to be a very powerful statement but for the fact that 1) the President's statement does not "directly conflict" with federal sentencing policy so much as it disagrees with Judge Walton's interpretation of that policy in a single case - see my commentary here - 2) Walton's interpretation was also contradicted by the Department of Probation and 3) no president has ever been restricted or limited in any way by such policies.

After setting up the fake comparison between sentencing policy and individual acts of clemency, the Rita petitions sings the now familiar end-of -the-justice-system tune:

The result is a wide-spread perception of unfairness that undermines the nation's trust in the criminal Justice system.

I guess what occurs to me is that what might be more harmful is the perception that some petitioners are very privileged to be from higher socio-economic backgrounds, and able to afford to retain lawyers who have the skill and resources and willingness to roll the dice with frivolous "Libby Motions" in the United State Supreme Court. I wonder if the typical criminal defendant in the federal system enjoys this luxury?