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Friday
Jul132007

Law Lessons from Libby

Pundits at both ends of the political spectrum seem to be caught up in the wrong discussion over President Bush’s commutation of “Scooter” Libby’s sentence, one that centers on abuse of power. On the right, the sentence was too harsh and politically motivated obviating the need for the commutation, on the left, there isn't any debate about the length of the sentence itself, but condemnation for its above-the-law 'commutator.' I think both are missing a wider point.

I’m not disputing the severity of the crime of which Libby was convicted, though I’d far rather have seen Bush and Cheney take the stand. But, another way to have punished Libby for impairing freedom of the press and compromising public transparency, would have been to make him a journalist’s intern - forever.

The very essence of debating whether Libby received a comparatively appropriate sentence or even whether this is yet another indication that felons with powerful friends get treated better than ones without any, presupposes that sentencing guidelines are themselves, sacrosanct. And they shouldn't be.

It’s guidelines like these that have spawned the quadrupling of today’s prison population versus that of 25 years ago, despite no such increase in the population, and propelled the stock price of Corrections, Corp. of America, the nation’s largest prison operator, to triple since 2004. Sentencing guidelines need to be modified - to protect the population during the moments when a presidential commutation won’t be happening.

A few years ago, I wrote a book about the culture of corruption spanning Washington, Wall Street and Big Business, Other People’s Money: The Corporate Mugging of America. Then, as now, I made the point that prison terms, while certainly a punishment, don’t alter the system. Putting CEO’s or politicians in jail, doesn't change a loosely regulated corporate environment or a secretive power-hungry executive branch. Instead, they allow the American public to feel empty vindication in the absence of any true rehabilitation. It’s sleight of hand punishment. Putting Libby in jail doesn't get us out of Iraq; not putting him in jail doesn't get us out of Iraq.

Last week, Utah Federal judge, Paul Cassell, testified against mandatory sentencing guidelines in Congress. To characterize the insanity of ‘one-size-fits-all’ justice, he drew from his own experience. He had to sentence a man to 55 years in prison for possessing a weapon during a few pot deals; a sentence, Cassell said, equivalent to one for severe crimes like hijacking an airplane, second-degree murder and rape.

In that context, Libby’s commutation was astounding to me. But not for the main reason that boils the blood of my progressive friends - that it’s one more indication of how President Bush considers himself above the law. We already know that.

More interesting is what the original sentence says about the justice system. Though not Bush's intention at all (clear from the pile of 2500 commutation and 1000 pardon requests sitting at the Department of Justice), Bush cast attention on minimum sentencing guidelines, the ones his administration has been working to make mandatory. The message behind Bush’s self-protective benevolence has validity despite its messenger and surrounding circumstances.

Congressional leaders, whatever their opinion on Libby, should address the fact that the White House has been pushing to make the minimum federal sentencing guidelines, mandatory. Many Democrats are against this action, and now, so it seems, are the Republicans who support Bush’s commutation of Libby.

There’s been a slew of press debate on comparatives for Libby’s sentence; from the right who consider it too strict to the left who consider it too lenient. Yet, the judge sentenced Libby within the minimum sentencing guidelines (30 to 37 months). If the guidelines had been 60 days to 5 years, Bush might have been commuting a 61 day sentence.

The problem with the guidelines is that their very existence sets up the framework for this debate. More generally, sentencing guidelines render individual judges harder pressed to exercise individual case discretion, even supposing that jury verdicts are accurate and truly unbiased for the general population. Judges must justify downward and upward departures, which requires more work and inherent reputation risk, conditions the guidelines allow them to avoid.

Perhaps, if Libby’s sentence wasn't levied relative to draconian sentencing guidelines, Libby wouldn't have received a 2.5 year prison sentence for a non-violent, first time offense to begin with (even if we condemn what he did). Then we would still be discussing the merits of its commutation, but at least anyone else facing similar prison time could be spared.

Tuesday
Jan232007

Bush State of Confusion

I've been a bit blog-absent, while working on a book proposal. But, I did watch Sir Bush do his State of the Union thing, hoping (foolishly) that perhaps some distance and time spent away from following his every word, would give me some sort of, I don't know, calmness to decipher whatever he was rambling about, before resorting to swearing at my TV.

But, I just couldn't do it. Because, he's just not of this planet.

On his planet, perhaps people can afford health-care, and would be even more involved with private health insurance, if only they had a tax deduction to, you know, spur them along. I may have missed it, while yelling at my TV, but I'm sure Bush didn't say anything about how private health insurance companies guage private insurees, and that millions of people not only can't afford insurance, they can't access it.

A tax break is not going to dial Blue Cross/Blue Shield, and apply and receive single-payers insurance. A tax break won't force Oxford to pay for doctors they don't want to recognize, even though they recognize all the premiums. A tax break isn't going to have a conversation with CIGNA about covering more preventative care. And creating health savings accounts for a country with a negative savings rate, isn't an investment necessity, it's a total impossibility.

Oh, but the real reason we can't afford or get health care easily from private insurance companies is all the lawsuits, not say, because health insurance premiums are under absolutely no scrutiny, regulation, or capping? Seems that if private insurance companies increased the number of people they cover, while reducing individual rates so more of those people could both pay for and receive coverage, everyone would be happier. Why didn't Bush suggest that? Maybe, because he doesn't worry about losing coverage himself, or being undercovered, like most of the other people living in the country?

On another topic, he said that what we need is to impose spending discipline in Washington, D.C. Uh, he said the same thing in his State of the Union Address in 2003, or precisely, that we should show some spending discipline in Washington. Repetitive? maybe. Effective? not so much. This is coming from a man who's now overseen more emergency war addendums passed under his administration that throughout all of American history combined.

And reduce gasoline usage by 20% in ten years? What does that even mean? And, why 20% in ten? Did he take out some special economic calculator that produced that very percentage after that much time? Why not 30% in fifteen or 5% in two? This is the guy that signed a huge gas company tax break bill while on vacation at his ranch, while cutting the budget for the very part of the Energy Department that researched alternative fuels by 40% that same year.


As for more troops in Iraq, that was the point at which I had to turn down the volume, and just watch the hand gestures...it had all become too tragic and too similar.

Monday
Jan082007

Trump, Tents and Capitalism

Last Friday, I was on CNBC's Kudlow & Co. show. The topic, as always, was the joys of capitalism. When I was asked something like whether the Democrats would increase taxes for the rich, I said something like, "if the Democrats can redistribute the tax burden, i.e. tax those that have more by more, we can pump the same net revenue into the fiscal budget, maybe even more revenue, and the markets would be fine."

I just don't think higher taxes on the rich will crash the markets. It occurred to me, that this means I believe in the power of capitalism more than many free-marketer types. I think capitalism will find a way to grow even if it has to pay more taxes, in the process. Meaning, it can withstand higher taxes and tighter regulations....more on that over the course of the year.

Separately, I watched The Apprentice Sunday night. I've never quite warmed to Donald Trump or the show, but this season, there's a different premise; divide the wannabe apprentices into winners, or 'have's', who get to live in a mansion and chow on Wolfgang Puck's cuisine and losers, or 'have nots', who get to live in tents and chow on fairly unmemorable food.


It turns out that Donald Trump is somewhat of a sociologist, maybe even a rebel, after all. Sure, in his world, the hungry and ambitious take all and boost ratings in the process. They are called winners. The losers, on the other hand, get nothing, which on the show, forces them to become more resolved to reclaim what they belief is rightfully theirs from the winners.

Frank and his team only lost the car-wash challenge to Heidi's team by a tiny margin. But, Frank probably didn't come on the show because he likes camping. Equally, Heidi's not likely to want to share the mansion any time soon. Carry forth that idea into mainstream society and Trump, the billionaire, would appear to be calling for a revolution.

As Emma Goldman said, "If they do not give you work, demand bread. If they deny you both, take bread. It is your sacred right."


I'm staying tuned for the season.