Law Enforcement

Clemency for Libby

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I’m happy to hear that President Bush has commuted Lewis Libby’s prison sentence.

However, I don’t understand why Bush didn’t grant Libby a full pardon.

Bush cited the harshness of Libby’s sentence — and it was indeed harsh — as his rationale. But in this case the flaws in the sentencing pale in comparison to the much greater flaws in the decision to prosecute Libby in the first place. That is why Bush should have pardoned him.

Bush will now be blamed by his political opponents for giving Libby special treatment. Meanwhile, by paying lip service to the notion (or perhaps he is sincere in this belief, which would make him appear naive to the point of foolishness) that Libby committed a serious crime, he effectively bolsters the Democrats’ argument. By splitting the difference, Bush appears to be acting from expediency, denies Libby the full support that he is due, and will pay the same or greater political price as if he had pardoned Libby outright.

Also, unless his conviction is overturned on appeal, Libby will still have to pay a fine and serve two years’ probation, and will have a felony record that may prevent him from practicing law again. And all this for doing what — remembering a long-ago conversation differently than someone else did?

This outcome is vastly better for Libby and his family than prison would have been, but it still seems incomplete.

UPDATE: Not everyone agrees with me. See the discussion in the comments.

Quote of the Day

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Later, of course, the same prosecutors who so vigorously defended Nifong’s conduct became vocal proponents of a severe sanction. Marquis has worried over the undermining of prosecutorial authority, due to the “Nifong effect,” and Murphy has also recently edged away from the former DA. What once played as reasonable conduct is now portrayed as the misdeeds of an outlier. A simple calculus explains the shift: If Mike Nifong’s conduct is commonplace, then the whole system is corrupt. If other DAs do what he did, then we have to face up to how widespread and corrosive prosecutorial misconduct really is—a discussion Marquis and Murphy and other prosecutors would strongly prefer to avoid.
 
Though the Duke case has been spun from the outset as a parable about race, it has always been far more about class, access, and power. From the beginning, the three boys had extraordinary legal talent, unusual political access, and significant press savvy. With a steady stream of exculpatory evidence and investigative triumphs that would have eluded all but the wealthiest of defendants, the defense team mounted an extremely well-funded and successful public campaign, exerting tremendous pressure on Nifong and other state officials. In the end, the Duke defendants orchestrated Mr. Nifong’s downfall and also won an outcome almost unheard of in our criminal justice system—a pretrial exoneration.
 
The disbarment of Mike Nifong, and the civil suit or even criminal charges that are almost sure to follow, might seem a pleasing end to a sad saga. And yet Nifong is a scapegoat. Despite their terrifying power to ruin lives, prosecutors are afforded almost unparalleled discretion to do their jobs and extraordinary deference from the courts. As a result, serious sanctions for prosecutorial misdeeds are virtually unheard of. This makes it highly unlikely that Nifong’s comeuppance will deter aggressive prosecutors. Instead, his punishment will be seen for what it is: a freakish anomaly.

–David Feige

Lacking Perspective

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Things are pretty grim. Armed gunmen are getting bolder. Agents of the duly elected government are at risk, with many of them being assassinated in front of their families. Police officers are specifically targeted, often being kidnapped so they can be tortured to death. The message is simple: Join the side of law and order and you will be killed. The favorite method of execution is to behead the victim, a tactic favored by terrorists.

Sounds like the most overwrought prose from a journalist describing the situation in Iraq, or maybe the Palestinian Territories. But I’m talking about the drug war being waged in Mexico at this very moment. The Washington Post article behind that last link states that 600 people have died this year.

I doubt very highly that either their figures or analysis of the situation is accurate. I have reason to believe that things are much worse. StrategyPage.com states that over 1,200 people have been killed this year. What is most alarming is that the drug gangs are actively recruiting regular Mexican Army deserters, men that have had training in combat, weapon use, and who are able to plan and carry out complex operations.

There are a few questions about this situation that need to be asked. The most important is: How did the drug gangs manage to become so powerful that they are able to take over whole towns, defy the Federal government, and assassinate important officials?

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Hubris

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A former prosecutor of white-collar criminals, now hustling business for his private law practice, opines humbly:

White-collar crime is rarely about greed, in the opinion of the former prosecutors. “It is generally hubris,” Mr Owens says. “It’s a corporate culture that is detached and guarded by advisers who never challenge.”

The same could be said, with perhaps more justification, for the US culture of criminal prosecution. Businessmen are subject to criminal liability for a wide range of behaviors, and often stand to lose enormous amounts of money and their careers based on mere allegations of wrongdoing. Meanwhile, prosecutors who destroy highly productive business people out of hubris and personal ambition are almost never accountable for their most egregious actions, and indeed are likely to benefit professionally from them.

Miscarriages of Justice

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(Re this and this.)

Here’s another case that deserves renewed scrutiny.

Frank Fuster is still in prison despite numerous holes in the case against him, and despite the fact that the “investigative” techniques used to elicit the testimony of young children that convicted him have been discredited. Unfortunately, Fuster is a creepy guy without many friends, so it seems unlikely that any Florida governor will consider reexamining his case, much less pardoning him or commuting his sentence.

The Fuster case reminds me of Bill Weld and the Amiraults. What’s the point of giving executive-branch officials the pardon power if they won’t use it for unpopular defendants? Isn’t that one of the main justifications for the pardon power — that it’s a remedy for miscarriages of justice committed against unpopular defendants such as accused child molesters?