On July 3rd, Judge Reggie B. Walton directed the parties in USA v. Libby to submit their positions regarding a discrepancy between the pResident's Grant of Executive Clemency, which commuted Libby's prison sentence but left intact his supervised release, and the meaning of 18 U.S.C. Section 3583, which appears to disallow supervised release without completion of incarceration. In my previous diary, I provided details of Libby's and Fitz's Briefs and the White House Opinion Letter filed on July 9th for Judge Walton's consideration.
Today, Judge Walton ruled.
Text of Judge Walton's Order:
In accordance with the Memorandum Order that accompanies this Order, it is hereby
ORDERED that the defendant shall report to the United States Probation Office for the District of Columbia before the close of business on July 13, 2007 to begin his two-year term of supervised release.
SO ORDERED this 12th day of July, 2007.
Unfortunately, I have no way of linking the Memorandum Opinion here and its length prohibits typing it out; however, even though IANAL, there seem to be passages that might be of interest.
A dig at Bush from a footnote: "Although it is certainly the President's prerogative to justify the exercise of his constitutional commutation power in whatever manner he chooses (or even decline to provide a reason for his actions altogether), the Court notes that the term of incarceration imposed in this case was determined after a careful consideration of each of the requisite statutory factors...and was consistent with the bottom end of the applicable sentencing range as properly calculated under the United States Sentencing Guidelines.
...
Indeed, only recently the President's Attorney General called for the passage of legislation to "restore the binding nature of the sentencing guidelines so that the bottom of the recommended sentencing range would be a minimum for judges, not merely a suggestion," June 1, 2007 Prepared Remarks of Attorney General Alberto R. Gonzales...a stance that is fully consonant with the policies of this Administration as a whole. In light of these considerations, and given the indisputable importance of "provid[ing] certainty and fairness in sentencing...[and] avoid[ing] unwarrented sentencing disparities," (cite from Rita case), it is fair to say that the Court is somewhat perplexed as to how its sentence could accurately be characterized as "excessive."
...the Court agrees with the parties and the White House that the executive clemency power, as interpreted in Schick v. Reed, permits the President to disregard established statutory requirements in commuting the sentence of a criminal defendant, so long as the conditions placed upon the commutation "do not otherwise offend the Constitution."
Judge Walton goes into background on the Schick case, in which the Supreme Court "examined the historical underpinnings of the presidential pardon power." Although the Supreme Court affirmed the validity of a commutation in Schick, Walton points out that it also "did not attempt to describe the contours of constitutional objectionability or to determine the circumstances under which a commuted sentence might raise legitimate constitutional questions...,nor has it done so since." In fact, Walton quotes from Justice Marshall, who wrote in dissent:
..."the Chief Executive is not imbued with the constitutional power to create unauthorized punishments" when commuting a sentence pursuant to Article II. Specifically, Justice Marshall contended that "[t]he congressionally prescribed limits of punishment mark the boundaries within which the [President] must exercise his authority," and that while "the [President] may abstain from enforcing a judgment by judicial authorities" through the exercise of executive clemency, "he may not, under the aegis of that power, engage in lawmaking or adjudication." Thus, in the view of the dissent, "[t]he separation of powers doctrine does not vest the Chief Executive with an unrestrained clemency power, but views his functions as distinct from the other coordinate branches."
Walton concedes that he is bound by the Schick majority decision and says further:
Accordingly, the only appropriate inquiry is whether the decision of the President to require the defendant to serve a pre-imposed term of supervised release despite the commutation of the prerequisite sentence of imprisonment somehow "offend[s] the Constitution."...The Court concludes, with great reservation, that it does not.
Walton goes on to say that the Schick Court provided him no guidance regarding what might be considered "consitutionally problematic."
He appears to be leaving Fitz some wiggle room to take this further, however, when he also says:
...it could readily be argued that the President's decision to commute the prison sentence of a criminal defendant on the condition that he continue to serve a term of supervised release for which imprisonment is deemed a necessary statutory predicate constitutes...an encroachment, disregarding as it does the considered judgment of Congress in exercising "the broad authority that legislatures necessarily possess in determining the types and limits of punisments for crimes."
...
While the President is undeniably empowered through the Constitution to mitigate in length or severity, or annul altogether, a punishment determined by Congress and imposed by the Court, it is far more unsettled, even given the holding in Schick, whether the President may transmute a duly crafted form of punishment into one that is expressly proscribed by statute, such as a requirement that a criminal offender serve a term of supervised release without prior imprisonment.
He concludes:
...despite what this Court perceives to be a greater intrusion by the President into the legislative arena in this case than occurred in Schick, it is compelled, in the absence of more specific guidance from the Supreme Court that would merit a different result, to conclude that the sweeping and expansive language of the Schick majority sanctions what the President has done here.
***UPDATE*** Please tip Bronte17 for commenting with an important footnote I missed and also maryru for commenting with the terms of Scooter's supervised release. Hat tip to TerribleTom who commented with a link to the Memorandum Opinion.