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Friday, November 04, 2005

Should Libby's Past Public Service Warrant Leniency?

On Wednesday, I began the sentencing materials in my criminal procedure (bail to jail) class.  The casebook I use, the marvelous Criminal Procedures (edited by Marc Miller and Ron Wright), introduces discussion about sentencing purposes in an indeterminate sentencing scheme by reprinting the sentencing memoranda from the government and the defendant in the Oliver North case; the book also includes the judge’s opinion.  Needless to say, the government urged a term of incarceration.  The defense resisted this strenuously, stating that North’s exemplary prior public service served to mitigate substantially any need for incarceration for his crimes of obstruction, destroying records, and receipt of a bribe.  Judge Gesell agreed with the defendants, stating that he was “going to take into full consideration” North’s courageous military service and career in the government. Sure enough, Gesell did not impose incarceration.

This all comes to mind -- though prematurely -- because of the recent indictment against Scooter Libby.  Libby, like North, has also served in the government a long time.  (One might wonder, of course, whether working in the government really is “public service.”  For many people, the government might provide higher wages, better benefits, fewer and more flexible hours, better professional experience or some combination of these factors than would be available in the private sector.   Moreover, if you’re working for a government agency that is under the control of someone hell-bent on making the public worse off, query, again, whether the service rendered is really in the public interest.  Still, let’s assume that government work is indeed public service.)

North’s case, like Libby’s, however, had nothing to do with the prior public service.  Nonetheless, the Court in North’s case suspended the sentence of incarceration, in part because Judge Gesell worried that a term of incarceration would “only harden [North’s] misconceptions” about the injustice of his being prosecuted.  Libby’s lawyers could arguably take the same tack, and, frighteningly, now that the SCT has rendered the sentencing guidelines “effectively advisory,” Judge Walton will have that authority to sentence Libby, with “full consideration” of Libby’s past service to the country too.   I’ve argued elsewhere why sentencing discounts based on past veteran status or public service are inappropriate.  The argument, as applied here, in short is this: the past service to the country was not impinging on the offender’s freedom to decline to commit the crime at issue.  Maybe someone could say there’s a causal story to be told between Libby’s prior service and his (alleged) decision to lie to the government, but I doubt it.  If I’m wrong, I’d like to hear what it is. North was sentenced just before the guidelines were operative.  Libby is lucky; had he been indicted (and sentenced) before Booker, it’s unlikely he would have the Booker decision to work in his favor. 

But all this hash regarding Booker's flexibility might be moot: according to a colleague of Judge Walton, “You're always going to get a fair trial with him," Judge Lamberth said, “but if you're convicted, he's going to ensure you do adequate time to reflect the crime.”

Posted by Dan Markel on November 4, 2005 at 09:43 AM in Criminal Law, Current Affairs, Dan Markel | Permalink

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Why don't his past years of public service (if we actually think any good was done in them, actual service to the public, I mean) call for being harsher on Libby? After all, he should have better known that this was wrong. "With great power comes great responsibility" and all that, to quote someone or other's uncle.

Posted by: Matt | Nov 4, 2005 10:06:39 AM

Matt, interesting question. It is not clear to me that years of public service themselves have a causal relationship to better knowledge of what's prohibited or a more "free" choice to commit the crime. Perhaps Libby's being a lawyer does, at least in relation to the former criterion. To the extent you were making a claim that privileged lives should be punished more severely (as opposed to lives spent in public service), I think that claim is dangerous for liberal states, which should, at least presumptively, believe that, regardless of class, mentally competent individuals are free to refrain from crime. Many people of all classes do so, after all. As Michael S. Moore argues, it's condescending to think that poor people, at least presumptively, can't freely reject flouting criminal laws. At least as far as presumptions go, I think I agree with that, though this anti-paternalist position is somewhat controversial in the academy. The answer to your question might also come down to whether you're a moral retributivist or a legal/institutional retributivist. I'm the latter. I don't think liberal states should be in the business of "cheshbon nefesh," or an accounting that each soul has to make about the good and bad things they've done in life. Instead, the state should determine whether the offender was competent (and is competent) and whether the crime was done voluntarily. (I'm sympathetic to claims that the law as it stands should be more sympathetic to causes affecting voluntariness, by the way.) But in general, if consideration of a life of good deeds came into the picture, it might lead these "good" people to think that they've earned a break from compliance with criminal laws. The state shouldn't tolerate that (from my perspective).

Posted by: Dan Markel | Nov 4, 2005 10:33:04 AM

I know nothing about the general issue (and any commentary from me on it would have to start by dumping your assumption that whatever Libby has done constitutes "public service"), but this particular phrase leapt out at me from your post:

the Court in North’s case suspended the sentence of incarceration, in part because Judge Gesell worried that a term of incarceration would “only harden [North’s] misconceptions” about the injustice of his being prosecuted.

Really?! What kind of a justification is that? "The defendant will not be sentenced to a term of imprisionment because he will believe that it is unjust." Is this a totally unprecedented notion, or is the sentencing system even more bizarre than I'd previously thought?

Posted by: Paul Gowder | Nov 4, 2005 12:59:18 PM

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