Comments on: Libby pays fine; dispute over President’s power lingers

By: Peter G

Peter G — Thu, 05 Jul 2007 15:48:30 +0000

Daniel’s quotation is from my comment posted at TalkLeft. The authority for that proposition, which answers Judge Walton’s question, is Schick v. Reed, 419 U.S. 256 (1974). Schick established that the constitutional pardon power includes a power of commutation which in turns encompasses the authority — which cannot be overturned in court by reference to any statutory argument — not only to shorten a sentence but also to change a sentence from one form to another (there, from a death sentence to life imprisonment) and even to put a condition on that new form of sentence (there, lack of parole eligibility) which was not authorized by any law applicable to a judge making a sentencing decision in that sort of case (there, a military prosecution for murder).

By: Daniel Thomas

Daniel Thomas — Thu, 05 Jul 2007 04:32:58 +0000

“1) The President’s commutation power is plenary — unlimited. Even if the statute does not allow the judge to impose supervised release without a term of imprisonment, the President, in the exercise of his commutation power, can cancel the term of imprisonment and impose “supervised release” without prior imprisonment.”

I agree with Peter G.

By: Peter G

Peter G — Wed, 04 Jul 2007 19:10:14 +0000

I have posted a detailed comment on the legalities of this issue here on TalkLeft, supplementing other useful comments from Howard Kieffer, moderator of the federal prison-related listserv BOP-Watch.

By: Howard O. Kieffer

Howard O. Kieffer — Wed, 04 Jul 2007 15:33:12 +0000

Re: Judge questions supervision of Libby

This, IMHO, is a very simple issue. Supervised Release, by statute, follows a term of imprisonment. Probation is only applicable when the sentence does not include imprisonment. Libby, contrary to various media reports, never got (and doesn’t now have) Probation.

Libby was originally summonsed into Court (not arrested), but was still booked by the Marshals – probably immediately after entering his plea of not guilty. This is when (contrary to media reports) he was assigned his “prison number.”

Libby, just like virtually every other defendant, receives one day of jail credit for that booking. Accordingly, since Bush commuted the sentence (of imprisonment) and stated that it would expire immediately, the statute is served – his Supervised Release follows the expiration of his sentence – one day (after commutation).

Consequently, this should be a no-brainer for Judge Walton – and all the sentencing pundits who have raised this issue. Technically, Libby must report to Probation within 72 hours of his “release” from incarceration – because of the commutation, that would mean by COB Thursday. His Supervised Release started today – July 3, 2007.

Howard O. Kieffer
Federal Defense Associates
714-836-6031 x 250
Facsimile 714-543-5890
http://www.boplaw.com
hkieffer@dcounsel.com