Libby sentence met guidelines

The Baltimore Sun

WASHINGTON -- In commuting the jail sentence of I. Lewis "Scooter" Libby Jr., President Bush said the former vice presidential aide had suffered enough and the 30-month prison term ordered by a federal judge was "excessive."

But records show the Justice Department under the Bush administration frequently has sought sentences as long, or longer, in cases similar to Libby's.

Three-fourths of the 198 defendants sentenced in federal court last year for obstruction of justice - one of four crimes for which Libby was found guilty by a jury last March - got some jail time. According to federal sentencing data, the average sentence the defendants received for that charge alone was 70 months.

Just last week the Supreme Court upheld a 33-month prison sentence for a decorated Army veteran who was convicted of lying to a federal agent about a machine gun he had purchased.

The vet had no criminal record, but Justice Department lawyers argued that his prison term should stand because it fit within the federal sentencing guidelines.

That Bush chose to make an exception for a political ally is galling to many career Justice Department prosecutors and other legal experts. Career prosecutors said yesterday that the decision would make their job harder to persuade judges to deliver appropriate sentences.

The critics include some Republicans who said the decision does not square with an administration that has been ardently pro-law-and-order. "It denigrates the significance of perjury prosecutions," John S. Martin, Jr., a former U.S. attorney and federal judge in New York, said of the commutation.

Bush, speaking to reporters yesterday after visiting with wounded military personnel at Walter Reed Army Medical Center, refused to rule out the possibility that he might grant Libby a full pardon later. Unlike commuting the sentence, that would wipe out the felony conviction and allow Libby to retain his law license.

"As to the future, I rule nothing in or nothing out," Bush said, in his first public comments on the case since announcing his decision late Monday.

Sentencing experts said Bush's action appeared to be without recent historical precedent. They could not recall another case in which someone sentenced to prison had received a presidential commutation without having served any part of that sentence. Presidents have customarily commuted sentences only when someone has served substantial time.

"We can't find any cases, certainly in the last half-century, where the president commuted a sentence before it had even started to be served," Margaret Colgate Love, a former pardon attorney at the Justice Department, said.

Bush said yesterday that in reaching the decision on Libby, "I considered his background, his service to the country, as well as the jury verdict." While vacating the prison sentence, he did not disturb other parts of the sentence, including a $250,000 fine and two years of probation known as supervised release.

"But I felt like the 30-month sentencing was severe, made a judgment, a considered judgment that I believe is the right decision to make in this case, and I stand by it," Bush said.

Whether Libby would have to serve probation was in some doubt yesterday. The sentencing judge in the case, U.S. District Judge Reggie B. Walton, said in court papers that it was unclear whether a defendant who had not done jail time could still be subjected to supervisory release. He asked the lawyers to advise him on the issue.

White House spokesman Tony Snow, speaking with reporters before Bush made his comments, said Bush spent "weeks and weeks consulting with senior members of this White House about the proper way to proceed."

"He spent a lot of time trying to figure out how to maintain the faith in the jury system, and he did that by keeping intact the conviction and some of the punishments," Snow said. "This is hardly a slap on the wrist, in terms of penalty."

The decision to spare Libby also rekindled debate over the federal sentencing guidelines.

Critics of the system say the rules don't account for mitigating circumstances and can result in overly harsh punishment.

But the Bush administration and the Justice Department have been tough enforcers and advocates of the guidelines.

Libby's 30-month sentence was within the range of the federal guidelines and was issued by a judge Bush had appointed.

Martin, the retired federal judge, said that Bush appeared to be having the same problems with the guidelines as judges.

"The president felt the guidelines were wrong, and that is not an unreasonable determination," Martin said. "But that is the whole problem with the guidelines. You cannot make individualized decisions."

Richard B. Schmitt and David G. Savage write for the Los Angeles Times.

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