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Could the Libby case be impacting the Justices’ views and work on Rita?

By Douglas Berman

As I have highlighted in posts here and here, decorated veteran Victor Rita received a within-guideline 33-month sentence for seemingly less serious instances of perjury and obstruction than the crimes that have led to Lewis Libby’s 30-month within-guideline sentence.  Meanwhile, as public debate over Libby’s sentence has raged for nearly a month, the Supreme Court has been finalizing its ruling concerning whether Victor Rita’s sentence is constitutional and reasonable under Booker and 18 U.S.C. § 3553(a).

Notably, the Libby outcome has already led a number of persons known for tough-on-crime views and rhetoric to decry the length of Libby’s 30-month within-guideline sentence: former federal prosecutors Rudy Giuliani and William Otis have both made statements suggesting that Libby’s sentence is unreasonably long.  Though not stated in these terms, these high-profile criticisms of the length of Libby’s sentence certainly spotlight the suspect nature of post-Booker doctrines that essentially apply a conclusive presumption that any and every within-guideline sentence is reasonable. 

Though Supreme Court rulings are probably rarely impacted by inside-the-Beltway Sturm und Drang, it would be quite difficult for the Justices not to see the shadow of Lewis Libby hanging over their work in Rita.  Though I doubt Libby’s name will appear in the eventual Rita ruling, I think it is quite possible (and arguably quite appropriate) that the Libby case is impacting the Justices views and work on Rita.

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