The Libby Commutation

By G. Patrick Callahan, Prisoner of the Drug War

The chronic problem with federal sentencing practices, and state sentencing schemes based upon the same model, was driven home yet again by President George Bush's commutation of the sentence given to Lewis "Scooter" Libby, his trusted friend and associate. Libby received a 30-month prison sentence for "obstruction of justice" after a jury trial and conviction for lying to federal agents.

The harshness of Libby's 30-month sentence was consistent, said federal prosecutors, with obstruction of justice punishments across the country. I found this grimly amusing because I also received a 2-level obstruction of justice "enhancement" - folded into my drug sentence - that added five years to my time, exactly double what Mr. Libby received.

Unlike Mr. Libby, I was never indicted for obstruction of justice, never accorded constitutional notice of the charge, and my jury never considered it. I was never found guilty beyond a reasonable doubt of obstructing justice.

Although I elected a jury trial where that's the only standard of proof for criminal offenses, I received several sentencing enhancements -- none of which I was indicted for and all of which ran consecutive to the sentence allowed by the jury's verdict and guidelines.

The sentencing judge on his own decided to add these so-called enhancements, which effectively doubled my prison sentence by adulterating the burden of proof requirement - thus becoming an unconstitutional alloy of the reasonable doubt and preponderance of evidence standards. After this judicial piling-on, I was given a 27-year sentence. That was 18 years ago.

The further irony in Libby's case -- a poisonous one to be sure -- is that President Bush argued the same line many of us in custody have stated for years. Such as: my sentence was too severe, that judges shouldn't be allowed to take account of facts not proved to a jury, that a defendant's positive contributions to society are ignored, that his sentence would cause collateral damage to his family.

These truths were important in Libby's case because he was an intimate associate of the President. Everyone else can go to hell!

We have often used "Just Us" to describe justice being a different thing for the wealthy or highly connected. This was precisely such a case.

George Bush is one of these very tough on crime types who believes there can never be too much punishment. His own Attorney General, Alberto Gonzalez, said in June that the Justice Department would push for legislation making federal sentences tougher and less flexible.

They could scarcely be less flexible than how they are now, and soon we may reach the point where any conviction for crime could put someone in prison for an average 20 years.

The odd fact of the matter is that George Bush is right for once: federal sentencing is excessively harsh. Judges freely enhance sentences with so-called 'relevant conduct' tag-ons carrying far too much punishment and guaranteeing destruction of family ties.

Federal prosecutors are bemoaning the Libby commutation, are "disgusted" and feel that it undercuts law enforcement. We wonder at all this hair pulling.

Since when has justice become equal in this country? Take a look at direct appeals and habeas corpus actions where the Justice Department gets its way almost every time excessive sentences are challenged.

To the unconcerned, remember this: with only 4% of the world's population, the United States has 26% of the world's prisoners. Scooter Libby lucked out -- he had friends in high places.