It Was The Drugs, Man

William Otis on the 30 months sentence for Scooter Libby:

Neither vindication of the rule of law nor any other aspect of the public interest requires that Libby go to prison. He is by no stretch a danger to the community, as "danger" is commonly understood. He did not commit his crime out of greed or personal malice. Nor is his life one that bespeaks a criminal turn of mind.... This was an unusually harsh sentence for a first offender convicted of a nonviolent and non-drug-related crime.

Eric Muller calls this argument "garbage", noting that in other manifestations Otis is a strong proponent of strict adherence to sentencing guidelines--in which case 30 months was at the bottom of the suggesting sentencing range. It's funny how the "fairness" of the system becomes suspect when the powerful are the one's ensnared.

But for my part, I wish to point out the seeming outlier in the passage "first offender convicted or a nonviolent and non-drug-related crime." There really is no standard of justice in which a "first offender convicted of a drug-related-crime" should substantially increase the sentence over comparable, non-drug-related crimes. To be sure, there are some non-violent but drug-related-crimes which arguably should carry prison sentences (dealing, perhaps), but then, there are some non-violent non-drug-related crimes which should do the same (fraud, money laundering). However, the sentence enhancements we see for mere possession crimes are ridiculous bordering on absurd.

In general though, it galls me to think that a public servant's breach of the public trust on an issue not of sex, but of national security, should be considered less serious than, say, a first time crack possession offense (which, FYI, carries a mandatory sentence double that of Libby's). I don't believe in mandatory sentencing guidelines, because I believe context is a serious component of all criminal cases, and I think it's important to take it into account. Certainly, I've seen cases where judges use their discretion to assign absurdly low or high punishments. But far scarier than abuses of discretion that lead to injustice is the possibility that judges won't be able to avoid an injustice that is before their and every observer's own eyes. That's the promise of mandatory sentencing guidelines, and in the case of Crack Cocaine (among other crimes) it is the everyday reality.