I am loath to be in the position of defending any action by President Bush, and the Libby pardon in particular, but there isn't anything inconsistent with Bush taking into account factors in granting a pardon when he opposes the use of those factors in sentencing.

The typical conservative opinion on sentencing (and, again, as a confirmed socialist liberal, I hate being the one to raise this) is the number of factors should be narrow and applied evenly to all. The entire purpose of the pardon power is for the President to step in on the extraordinary occasions when those unique factors should be taken into account. Judges should be strictly limited in their discretion because they are not answerable democratically for using factors not specifically called for, whereas the executive branch is and so can step in when called for. The executive can be called to account (at least, in theory, I haven't seen much of Bush being held to account, but that isn't his fault, more ours). Thus, the pardon is entirely consistent with conservative judicial philosophy.

Given how harshly most Americans want their prisoners to be treated and the ridiculously long prison sentences imposed, I don't think the situation is likely to change. Bush is the sort of man who can happily execute an underage prisoner or one with the IQ of a shoe, but he doesn't want his kind to suffer. He was never punished for any of his transgressions, from drug use, to drunk driving, to not fulfilling his military obligations. He clearly believes he is of that class, while others should be drawn and quartered for stealing a loaf of bread.

But then, we all knew this when we elected him and shouldn't be the least surprised he is what he is.

"The typical conservative opinion on sentencing (and, again, as a confirmed socialist liberal, I hate being the one to raise this) is the number of factors should be narrow and applied evenly to all. The entire purpose of the pardon power is for the President to step in on the extraordinary occasions when those unique factors should be taken into account. Judges should be strictly limited in their discretion because they are not answerable democratically for using factors not specifically called for, whereas the executive branch is and so can step in when called for. The executive can be called to account (at least, in theory, I haven't seen much of Bush being held to account, but that isn't his fault, more ours). Thus, the pardon is entirely consistent with conservative judicial philosophy."

Nice objective view on the "Conservative" theory for a pardon. Plus, it is plain as day in the Constitution (although what many of the "Founders" may not think Libby is worthy of one). Essentially in this case, it was pardon-lite (fine/probation, no jail time).

One can look at it the other way.

Take the Rita ruling recently decided by the SC and cited in the article. The facts of the case in some fashion mirror those of the Libby trial, and the Sentencing Blog link can be followed to get some background. The ruling held that appellate judges can UPHOLD as 'reasonable' a sentence -- as here -- w/i the guidelines. The Bush Administration, again that blog and others dicuss the pt, supported this move.

A strict on crime Bush appointment handed down a ruling here after the case was tried by a Republican prosecutor. This is perfectly consistent to the ideal 'hard on crime' mentality many support, not just those who voted for Bush. It is inconsistent for Bush to selectively say it is "excessive" when quite normally the same general facts (Rita also involved someone in public service -- a vet -- perjury as a result of an investigation, etc. ... "excessive" in his eyes? apparently not) are handled differently.

One should also underline the inconsistent use of the pardon power. One sees this concern by conservative leaning sorts like those at Volokh Conspiracy:

Nonetheless, I find Bush's action very troubling because of the obvious special treatment Libby received. President Bush has set a remarkable record in the last 6+ years for essentially never exercising his powers to commute sentences or pardon those in jail. His handful of pardons have been almost all symbolic gestures involving cases decades old, sometimes for people who are long dead. Come to think of it, I don't know if Bush has ever actually used his powers to get one single person out of jail even one day early. If there are such cases, they are certainly few and far between. So Libby's treatment was very special indeed.

It is interesting to suggest that the issue here is WHO decides what is "excessive," not the "excessive" nature of the situation in particular. I'm not sure if it really works on the facts though.

-j

Wait a minute, please. The President did NOT pardon Libby--he only commuted his sentence. That is, he did not rescind the guilty verdict--he only disputed the sentence imposed. Therefore, your entire argument fails.

And BTW, one speculation about the commutation instead of pardon is that a pardon would have removed Libby's incentive to keep quiet about the truth of the matters on which he perjured himself.

Commutation is as aspect of the general power at stake and one aspect of judging is handing down sentences. I don't see how the argument falls on that grounds.

As to why Bush did it, true enough, but the post was responding to certain argument ... even if Bush can selectively commute/pardon in a few cases, we can still argue that in this case the discretion was used corruptly.

-j

I think the issue isn't so much that Bush's DOJ has continued to oppose judges having the discretion to consider the factors Bush used. I agree that such a position isn't necessarily hypocritical. The issue instead is that Bush commuted Libby's sentence without commuting the sentences of people like Rita. What that suggests is that Bush doesn't actually give a damn about those factors, or about the executive's special ability to look at them. He just cared about getting his buddy off the hook. I'd be willing to bet that's not what the founders intended when they gave the president the right to commute and pardon - in fact, that sort of behavior would be more at home in a dictatorship or banana republic than here in the US of A.

Our justice system isn't supposed to depend on class - who you know shouldn't be what keeps you out of jail, or sends you there. By commuting Libby's sentence but not commuting the sentences of other people in Libby's position, Bush has just done his part to tear down that principle. Bush did act consistently with one of his governing philosophies, though: that actual justice is irrelevant to the administration of justice. Not surprising coming from the folks who gave us Guantanamo.