LAWFUEL – The New York Times’ Adam Liptak reports that in commuting I. Lewis Libby Jr.’s 30-month prison sentence on Monday, President Bush drew on the same array of arguments about the federal sentencing system often made by defense lawyers — and routinely and strenuously opposed by his own Justice Department.
Critics of the federal sentencing 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, President Bush made use of every element of that critique in a detailed statement setting out his reasons for commuting Mr. Libby’s sentence.
That left experts in sentencing law scratching their heads.
“The Bush administration, in some sense following the leads of three previous administrations, has repeatedly supported a federal sentencing system that is distinctly disrespectful of the very arguments that Bush has put forward in cutting Libby a break,” said Douglas A. Berman, a law professor at Ohio State who runs the blog “Sentencing Law and Policy.”
Perhaps inadvertently, Mr. Bush’s decision to grant a commutation rather than an outright pardon has started a national conversation about sentencing generally.
“By saying that the sentence was excessive, I wonder if he understood the ramifications of saying that,” said Ellen S. Podgor, who teaches criminal law at Stetson University in DeLand, Fla. “This is opening up a can of worms about federal sentencing.”
By yesterday morning, in fact, Mr. Bush’s arguments for keeping Mr. Libby out of prison had become an unexpected gift to defense lawyers around the country, who scrambled to make use of them in their own cases.
“The president of the United States has come in on his own and said, ‘30 months is not reasonable in this case,’ ” said Susan James, an Alabama lawyer representing Don E. Siegelman, the state’s former governor, who is appealing a sentence he received last week of 88 months for obstruction of justice and other charges.
“It’s far more important than if he’d just pardoned Libby,” Ms. James 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.”
