Thursday, June 07, 2007

A Third Way on Libby?

Professor PS Ruckman of Rock Valley College wrote to me this morning with an interesting observation about the Libby case:

Over the last few weeks, it has been constantly suggested that President Bush will be forced to pardon, or to decide not to pardon Mr. Libby if the judge does not grant bail. I guess I am curious to know if you are aware of the fact that this could not be more false - at least not from the standpoint of clemency?
 
By granting a respite (or a series of respites), the president can 1) help Libby avoid prison 2) allow the appellate process to continue, for now, without the disruption of a pardon and 3) allow any decision on a pardon to be made after the election - a clear political concern to many. Many a president has granted respites and many have explained their decisions in terms of allowing individuals to stay out of prison during the appellate process.

I had to write back to admit that, no, I was not aware. I asked for elaboration and received this answer: 

As interpreted by the Supreme Court, the Constitution allows the president to grant pardons, conditional pardons, commutations of sentence, conditional commutations of sentence, remissions of fines and forfeitures, respites, reprieves and amnesties.

 A respite delays the imposition of a sentence. It in no way addresses issues related to due process or guilt of innocence. Nor does it change the nature (severity) of the sentence. It only delays the execution of the sentence. In my study of pardons from 1789-1932, I found hundreds of respites. Most of them delayed sentences for periods of 30 to 90 days and were granted to 1) delay executions 2) allow additional time to study a clemency application or 3) to allow an individual to remain out of prison during the appellate process. When the time period expired, presidents frequently extended the delay with a follow-up respite. Woodrow Wilson, for example, granted 16 respites to an individual, delaying entrance into prison for almost two years. After the 16th respite, he (Wilson) granted a full and unconditional pardon.

So, I am just utterly mystified that the conventional wisdom (among media and government officials) is that, somehow, Bush will be forced to pardon, or decide not to grant a pardon, to Libby if the judge does not grant bail. Bush could simply issue respites until the last day of the term, if he liked.
 
If the president thinks Libby deserves to remain out of prison during the appeal, has faith that the appeal is legitimate (or with merit), wants to avoid disrupting the judicial process (as would be the case with a pardon) and would prefer to revisit the issue after the election ... respites are the silver bullet.
 
One of the last high profile examples of this use of the clemency power, by the way, was when Clinton delayed the execution of Garza in order that a study of discrimination in federal sentencing could be completed.

Interesting! If the president wants to rescue Libby from jail - without prejudging the outcome of his appeal - respite could well be a politically palatable middle way. 

06/07 09:46 PM