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Recently, the president of the United States commuted the sentence of White House assistant I. Lewis “Scooter” Libby, stating that the three-year sentence imposed by the federal judge was “excessively harsh” for “a first-time offender with years of exceptional public service.” While many were critical of that decision, my response was: Yes, Mr. President, putting a man behind bars for three years is harsh punishment. Will you now please commute the sentences of the tens of thousands of other men and women who are rotting in jail, serving equally and much more “excessively harsh” sentences? Indeed, I guarantee that every criminal defense lawyer in America could send the president a list of three people in prison today whose sentences are excessively harsh for the crime of which they were convicted, and who are at least as deserving of the exercise of the president’s constitutional prerogative to commute and pardon.
On the heels of the Libby commutation, during a congressional hearing Sens. John Cornyn (R-Texas) and Dianne Feinstein (D-Calif.) decried as “excessive” the 11- and 12-year sentences imposed on two border patrol agents by a federal judge in El Paso. These senators and others complained that the 10-year mandatory minimum sentence (for use of a firearm during a crime of violence) was imposed on top of the sentences for the other offenses. In a letter to the president asking that he exercise his clemency power, the senators claimed the case involved “prosecutorial overreaching.” They stated that there was not a need to add the § 924(c) firearms offense since the prosecutors had also brought 12 other counts against the border patrol agents. The senators seemed shocked that the star prosecution witness was perhaps as blameworthy as the defendants and had lied about the events that led to the prosecution, yet had been given complete immunity in return for his testimony. They also disapproved of the severity of the sentences in light of the plea offers earlier made to the defendants. This did not seem fair to them.
Again, I thought to myself: Yes, senators, this is what happens every day in our courts. It is what results when you continue to ratchet up penalties and when you enact statutes that impose severe and mandatory enhancements for conduct already criminal. The problem with mandatory minimum sentencing provisions is that they withdraw discretion from federal judges. The judges cannot consider the particulars of the case and transfer that discretion to prosecutors whose charging decision controls. With mandatories, judges cannot fit the punishment to the circumstances of the crime and cannot take into account information about the defendant, no matter how mitigating or relevant. And as these cases have shown, each defendant is unique.
Harsh mandatory sentences are also bad in another sense. They are coercive, forcing people to plead guilty and cooperate even where there are viable defenses or where only exaggeration or fabrication will get them a reduced sentence. The lack of judicial discretion compounds this problem. Rarely are criminal cases made the old-fashioned way any longer. These days it is truly a pay-for-play system in which the first person to ring the bell at the prosecutor’s office can walk out with barely a scratch regardless of relative culpability. The cost of asserting one’s constitutional right to challenge the evidence in front of a jury of one’s peers is a steeply more severe sentence. Even where the jury agrees with the defendant’s view of the evidence and acquits on nearly all counts, the sentence can be (and often is) as severe as if the defendant had been convicted on all counts. If the senators are shocked at the steep tariff imposed for going to trial, I wonder what they would have thought if these cases had involved the common practice of imposing sentences based on conduct that is not charged and on conduct for which a jury acquitted.
If I were not now writing my first column as the incoming president of the National Association of Criminal Defense Lawyers, I would simply be struggling with the reality of the federal criminal world in the usual way — by attempting to persuade a prosecutor and a probation officer that a particular enhancement was not warranted or that the evidence to support it was unreliable. Having failed at that, I would be making some of the same arguments to the court and trying to persuade the judge that my client is a human being who deserves leniency. Perhaps the argument would be that the judge should consider that my client has done much good in her life, that her motivation is more complex than the government makes out, or even that her judgment was clouded by intellectual or mental disabilities, or romantic or familial entanglements, and is deserving of mercy. Or perhaps my argument would be that even though he is guilty, my client has children who will tearfully ask why they no longer have a daddy or stoically suffer their loss. For the sake of the children, and because my client does not pose a danger to society, leniency is warranted. In the future, I will be sure to argue that even Congress recognizes that the government overreaches when it charges a person with multiple counts already covered by other charges. I will argue that it is unfair for the government to ignore the culpability of the real culprit in the case, who then feels free to fabricate and exaggerate my client’s
participation in the offense.
Almost always, I would be fighting against the imposition of a sentence that is surely greater than necessary to impose just punishment or to protect the public. For what has become the hallmark of our present sentencing structure is that Congress and presidents have been ratcheting up sentences without limits for many years. Despite the basic premise of the Sentencing Reform Act, which mandates that a sentence must be “sufficient, but not greater than necessary” to further the purposes of sentencing, each increase has come without any empirical basis that another 5, 10, 15, 20 years or up to life imprisonment is necessary to protect the public or to deter or constitutes just punishment. And therefore, in the end, I believe that any sentence that cannot be so justified must be deemed excessive, as the president and the senators have concluded in these two isolated cases.
The commutation of Libby’s sentence and the concern of the senators about the severe mandatory sentence imposed on the border guards give me the opportunity to question federal sentencing in a more public fashion. Why is it that there are more than 2 million men, women and children in our nation’s prisons and many more under criminal justice supervision? Why does our per capita rate of incarceration exceed that of the former Soviet Union and apartheid South Africa? Clearly, our severe penalties cannot be said to be serving as a deterrent. If they are a deterrent, why are there ever-increasing numbers of people behind bars? I also question why so many of our prisoners are Black, Latino or poor. And, why do we imprison even those with mental diseases, intellectual limitations, and addictions that could be more effectively and inexpensively addressed with treatment and for whom severe punishment cannot be said to be either deserved or a deterrent? And finally, why is it that so many of the men and women in our prisons are non-violent offenders who don’t pose a threat to us?
Prison is a dehumanizing place that, as one of my clients recently told me, “feels like being buried alive.” It ought not to be our first response to every problem facing society. It certainly ought not to be a standard plank in the platform of our political parties. Prison affects not just the convicted person but the families they leave behind, the taxpayers who foot the bill, and the communities to which they will ultimately return. While people languish in prison, their children grow up, parents die, and spouses move on. Prisoners lose jobs and homes, and often are never able to recover from the stigma and brutalization. So while I take offense with the president reaching out to commute the sentence of one human being while tens of thousands of others equally deserving rot in jail, as a criminal defense lawyer, I do not begrudge the benefit received by Libby and by his family, who will not have to suffer the pain of having a loved one behind bars. And I especially approve of the mercy shown to his children, for whom a day without their father is a day that they can never have back.
I certainly hope that the next time a federal judge chooses to exercise the constitutional prerogative in Article III to extend leniency to a defendant, the president and his Department of Justice and these same senators remember their own reactions to the sentences in the two isolated cases that caught their attention. I hope they decline the oft-heard and unfounded criticism of a soft-on-crime judiciary. Also, I hope that it allows us as criminal defense lawyers an opportunity to engage the nation, our representatives, and judges in a discourse about the excessive nature of our criminal sanctions and the need to find alternatives.
