Still more sentencing arguments for defendants from the Bush Administration

As stressed in posts here and here and here, President Bush’s statement of reasons for commuting Lewis Libby’s “excessive” prison sentence provides great material for federal defendants seeking reduced sentences from federal judges.  (Intriguingly, this New York Sun article today explains that an “alleged Hamas operative is likely to be among the first criminal defendants to try to capitalize on President Bush’s commutation.”)

It is hard to be certain exactly how judges and others will react to what Ellen Podgor is calling “The Libby Motion”.  (Peter Henning adds here reasons why the President’s work, legally speaking, “has created a bit of a mess on a number of different fronts.”)  What is certain, however, is that every official effort to defend the commutation creates more potential arguments for defendants and defense lawyers.  Consider, for example, these passages from White House spokesman Tony Snow’s commentary in USA Today: 

President Bush commuted part of Lewis Libby’s sentence because he considered a 30-month stretch in prison too severe. Libby was convicted of obstruction of justice and perjury; was fined $250,000; must serve two years probation; and will likely lose his license to practice law.  That qualifies as a stern penalty for a first-time offender with a long history of public service….

The president believes pardons and commutations should reflect a genuine determination to strengthen the rule of law and increase public faith in government…. In reviewing the case, the president chose to rectify an excessive punishment, and at the same time, the president made clear that he would not second-guess the jury that found Libby guilty.  He believes it is important to respect the jury’s work.  The concept of judgment by a jury of peers forms the backbone of our judicial system.  So the president left intact the felony convictions and two of the major punishments — the fine and probation….

The president was not motivated by politics in making this decision.  If he had made the decision based on opinion polls, he wouldn’t have lifted a finger.  Instead, he did what he does normally, and what makes those of us who work for him proud.  He proceeded on the basis of principle, and arrived at a sound and just decision — knowing he would take hits in the court of public opinion, but also knowing he was doing the right thing.

So, anyone working on sentencing issues should understand that President Bush views a fine and probation to be “major punishments” that can qualify “as a stern penalty” in some cases.  In addition, “principle” apparently means that a “just decision” and “the right thing” may sometimes require freeing a convicted felon from any prison term even if this will lead to “hits in the court of public opinion.”

Also, for anyone opposing acquitted conduct sentence enhancements, be sure to note that President Bush “believes it is important to respect the jury’s work [because] judgment by a jury of peers forms the backbone of our judicial system.”  Indeed, in light of President Bush’s emphasis on the jury’s work in the Libby case, I hope he will soon instruct his Attorney General and his Justice Department to start supporting defendants’ efforts to secure fully Blakely rights in the operation of the federal sentencing system.