On Scooter and His 30 Months

I've held off talking about Scooter Libby's sentencing earlier this week, partly because there's been so much blather in the blogosphere about it already, and partly because I hadn't come across a good description of the Guideline machinations that resulted in Scooter's advisory range being 30-37 months. Thankfully, Edward Lazarus over at FindLaw does just that today.

As he explains, the Guideline for perjury requires a cross reference to the Guideline for the crime that was subject of the underlying investigation. For that reason, Scooter's Guideline range bumped up based on the crime being investigated - disclosure of a covert CIA agent's identity. Keep in mind that the relevant issue is not whether that crime was committed (or that Scooter committed it), but that it was the subject of the investigation that was obstructed.

As Lazarus points out, cross references are the bread and butter of the Guidelines. The felon in possession Guideline, for example, cross references to all kinds of different things depending on what the defendant allegedly did with the gun. I've had a client sentenced as if he was convicted of attempted murder, even though not jury returned that verdict. Thus, it's not unusual or devious for the Government in Scooter's case to increase his sentence in such a manner.

Another point Lazarus makes is that, in the end, Scooter's sentence could have justifiably been lower, but it's not unreasonably long. He performs the kind of "unreasonableness" analysis that the Circuit Courts should be performing in a post-Booker world. He might have imposed a lower sentence, but he can't say that the 30 months Judge Walton gave Scooter is per se too long.

And speaking of Judge Walton, revel in this bit of irony about this Duhbya appointee:

That Walton would put the Bush administration in an uncomfortable position of having to consider a politically charged pardon for Libby is highly ironic: The 58-year-old jurist was one of the first appointments that Bush made to the federal bench in October 2001, a prime example of a new law-and-order mentality that the administration wanted to infuse in the courts.

'Bush wanted people to know that 'I appoint tough guys to the bench,' ' said Roscoe Howard, the U.S. attorney in Washington during Bush's first term. 'They appointed him just for what he did to Scooter; they were just not expecting it to happen to Scooter.' ...

The 2 1/2 year sentence was within the range of guidelines that the Bush administration has created and espoused for federal judges to follow to ensure that defendants are punished the same regardless of the judge hearing their case. The administration and Republican members of Congress have admonished other judges who give defendants a break under the guidelines — as lawyers for Libby sought Tuesday when they asked Walton to give him probation only.

That bolded quote captures a lot of my feeling about Scooter's sentence. If I were to make a list of unjust sentences imposed in federal courts, Scooter's would be a long way down the list, precisely because of the kind of "law and order" lock 'em up forever mentality to which he now falls prey.

My other thoughts are neatly encapsulated in this Orin Kerr post over at Volokh.