Tribune Continues the Long Stumble
In a July 19th guest editorial for the Chicago Tribune, "Libby Commutation Undermines Sentencing Process," Patrick Collins, of Perkins Coie LLP and a former assistant U.S. attorney, continues to muddle sentencing policy with the pardon power in an effort to make something out of the Scooter Libby commutation. I submitted a response (below) to the Tribune, but it was "declined." So, there you have it.
Pardons Not to be Confused With Sentencing Policy.
In his column of July 19 ("Libby Commutation Undermines Sentencing Process"), Patrick Collins attempts to further fan the flames of a recently created fire which has generated far more heat than light. Collins takes the position that the criminal sentencing process is an "objective" affair which no president should take issue with unless the explanations for individual acts of clemency take the form of sweeping policy change for the federal judicial system.
If the President commutes Scooter Libby's sentence for this or that reason, the argument goes, then all criminal defendants "similarly situated" deserve the same favor. For the moment, it is truly entertaining (albeit taxing) to imagines lots of Mr. Libbys in the criminal justice system. But there is simply no excuse for confusing sentencing processes and decision making with the landscape of the pardon power of the president.
Sentencing processes are founded in the decision making of legislators and the discretion of judges and prosecutors. Sentencing policy can extend across administrations and shifted in a more severe or lenient manner by the legislative or judicial branches. Sentencing decisions are (or should be) guided by considerations of equal justice and find their legitimacy in notions of reason and fairness. That is exactly why sentences are debated, "guided," justified, explained and subject to review.
The pardon power, on the other hand, is founded in the text of the Constitution itself and the discretion of the individual who happens to be president. What one president does (or does not do) with the power is entirely irrelevant to presidents that follow. Unless the pardon power takes the form of an amnesty, its intent and impact are entirely focused on the individual recipient. Individual pardons have never been thought to have a retroactive, class-action component. While equal justice, reason and fairness might be excellent garb for a mercy, the very construction of the pardon power recognizes that those notions are also the focus of endless speculation, debate and acrimony. Thus, no president is required to give any explanation whatsoever for a pardon and most have not even bothered to do so. Finally, unlike everything related the sentencing process, the pardon power is not subject to review.
In sum, despite Mr. Collins' anxieties, the explanations which accompany individual acts of clemency are, in no sense of the language, "policy," and should not be described or judged as such. When President Bush commuted Libby's sentence, he violated no policy and set no policy. Nor did he contradict or condemn policy. He simply disagreed with one outcome of the decision making process in a single case (that is under appeal). And it appears the Department of Probation disagreed with that decision making as well - which suggests, of course, that there is much more subjectivity in the mix than Mr. Collins cares to admit. That is exactly why there is every reason in the world to expect federal judges to reject so-called "Libby defenses" outright (as happened in the steroid scandal case). Misinformed political grandstanding is hardly the harbinger of quality advocacy, much less justice.
When Woodrow Wilson pardoned a twice-convicted triple axe murderer, he had no obligation whatsoever to pardon triple axe murderers everywhere - even the ones which, in the minds of some lawyers, were "similarly circumstanced." When John F. Kennedy and Ronald Reagan commuted the sentences of notorious spies who made a mockery of our intelligence system and endangered national defense far more than Mr.Libby ever could, they violated no serious minded notion of "equal justice" by simultaneously refusing to free those who had committed similar - or even lesser - offenses.
Mr. Collins notes Judge Jeffrey White sarcastically rejected Troy Ellerman's "Libby defense," by quipping, "If Mr. Ellerman is dissatisfied with his sentence, he should seek a commutation from the president." While it may appear somewhat shocking to the average reader to see such a comment in print, that kind of remark has been made by federal judges (including Supreme Court justices) for hundreds of years. It would appear that, only in recent months, we have failed to grasp the good sense of it.
In his column of July 19 ("Libby Commutation Undermines Sentencing Process"), Patrick Collins attempts to further fan the flames of a recently created fire which has generated far more heat than light. Collins takes the position that the criminal sentencing process is an "objective" affair which no president should take issue with unless the explanations for individual acts of clemency take the form of sweeping policy change for the federal judicial system.
If the President commutes Scooter Libby's sentence for this or that reason, the argument goes, then all criminal defendants "similarly situated" deserve the same favor. For the moment, it is truly entertaining (albeit taxing) to imagines lots of Mr. Libbys in the criminal justice system. But there is simply no excuse for confusing sentencing processes and decision making with the landscape of the pardon power of the president.
Sentencing processes are founded in the decision making of legislators and the discretion of judges and prosecutors. Sentencing policy can extend across administrations and shifted in a more severe or lenient manner by the legislative or judicial branches. Sentencing decisions are (or should be) guided by considerations of equal justice and find their legitimacy in notions of reason and fairness. That is exactly why sentences are debated, "guided," justified, explained and subject to review.
The pardon power, on the other hand, is founded in the text of the Constitution itself and the discretion of the individual who happens to be president. What one president does (or does not do) with the power is entirely irrelevant to presidents that follow. Unless the pardon power takes the form of an amnesty, its intent and impact are entirely focused on the individual recipient. Individual pardons have never been thought to have a retroactive, class-action component. While equal justice, reason and fairness might be excellent garb for a mercy, the very construction of the pardon power recognizes that those notions are also the focus of endless speculation, debate and acrimony. Thus, no president is required to give any explanation whatsoever for a pardon and most have not even bothered to do so. Finally, unlike everything related the sentencing process, the pardon power is not subject to review.
In sum, despite Mr. Collins' anxieties, the explanations which accompany individual acts of clemency are, in no sense of the language, "policy," and should not be described or judged as such. When President Bush commuted Libby's sentence, he violated no policy and set no policy. Nor did he contradict or condemn policy. He simply disagreed with one outcome of the decision making process in a single case (that is under appeal). And it appears the Department of Probation disagreed with that decision making as well - which suggests, of course, that there is much more subjectivity in the mix than Mr. Collins cares to admit. That is exactly why there is every reason in the world to expect federal judges to reject so-called "Libby defenses" outright (as happened in the steroid scandal case). Misinformed political grandstanding is hardly the harbinger of quality advocacy, much less justice.
When Woodrow Wilson pardoned a twice-convicted triple axe murderer, he had no obligation whatsoever to pardon triple axe murderers everywhere - even the ones which, in the minds of some lawyers, were "similarly circumstanced." When John F. Kennedy and Ronald Reagan commuted the sentences of notorious spies who made a mockery of our intelligence system and endangered national defense far more than Mr.Libby ever could, they violated no serious minded notion of "equal justice" by simultaneously refusing to free those who had committed similar - or even lesser - offenses.
Mr. Collins notes Judge Jeffrey White sarcastically rejected Troy Ellerman's "Libby defense," by quipping, "If Mr. Ellerman is dissatisfied with his sentence, he should seek a commutation from the president." While it may appear somewhat shocking to the average reader to see such a comment in print, that kind of remark has been made by federal judges (including Supreme Court justices) for hundreds of years. It would appear that, only in recent months, we have failed to grasp the good sense of it.
posted by P.S. Ruckman, Jr. | 7:50 AM
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