Otis...Otis...Wasn't he the town drunk?

I'm sure you've seen this already, but I wanted to draw your attention to a wonderful piece of opinion journalism from today's Washington Post. It's by Federalist Society member William Otis (h/t to Dan Froomkin on the Federalist Society thing...I guess the Post didn't think I'd find that particular piece of information to be relevant as I was reading Mr. Otis' work), and in it, he argues that, while Scooter Libby shouldn't be pardoned, per se, he shouldn't be made to serve any prison time, because he's not someone whom "most people would, or should, think of as a criminal." I was a little confused after my first read, but I took another look, and I think I get what Mr. Otis is saying. As a public service, I thought I would parse it for you.

Scooter Libby should not be pardoned. But his punishment -- 30 months in prison, two years' probation and a $250,000 fine -- is excessive. President Bush should commute the sentence by eliminating the jail term while preserving the fine.

I've always wondered why the President didn't get more involved in the judicial process by tweaking sentences to ensure that justice is properly served. Perhaps the country would be better off if he moved around the country during the year, and set up temporary offices in various cities, he could hear petitioners and then modify the sentences imposed by federal judges as directed by the federal sentencing guidelines...you know, like kings used to do.

There is a legal principle at stake in this case greater than either Libby or the politics of the moment. It is a fundamental rule of law that the grand jury is entitled to every man's evidence. The grand jury cannot survive as the essential truth-finding tool it is if witnesses can lie with impunity. True, Libby committed a "process crime" -- that is, so far as has been established in court or even alleged by the prosecutor, he committed no crime until after the government initiated its investigation of the underlying act (namely, the revelation of Valerie Plame's CIA employment). But for obvious reasons it is not for grand jury witnesses to determine when an investigation is legitimate. As the Supreme Court has noted, there are many ways to challenge questions one believes the government should not be asking, but "lying is not one of them."

This seems clear enough.

U.S. District Judge Reggie Walton noted that there was ample evidence that Libby intentionally lied. Jurors took care (they did not convict on all counts), and the evidence before them makes it hard to believe that Libby's misstatements were merely a product of poor memory or confusion. The case was proved, and the conviction should not simply be wiped away.

Again, clear enough: in the parlance of our time, Scooter "did the crime."

Yet the sentence is another matter. Neither vindication of the rule of law nor any other aspect of the public interest requires that Libby go to prison.

Hmmm...now I'm getting a little confused. Has Mr. Otis never heard of the use of prison sentences as a deterrent?

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.

Wow, I didn't realize that one could avoid a prison sentence if one believed one's motives to be pure. I also did not realize that lying to a grand jury and federal investigators in an (ultimately successful attempt) to head off an investigation into criminal behavior which one may have been involved in was not motivated at least in part by self-interest. Things are starting to get clearer for me now.

Nor is his life one that bespeaks a criminal turn of mind.

Gosh, I also didn't know that one could avoid a prison sentence if one's life doesn't "bespeak a criminal turn of mind." Hurray! No prison for church-going, God-fearing first time offenders!

To the contrary, as letters to the court on his behalf overwhelmingly established, he has been a contributor to his community and his country.

Oh boy, this is fantastic! This means that if one is convicted of a serious crime, one can avoid prison time completely by getting one's friends and co-workers to write to the court to say what a fabulous contributor to his community and country! "Your honor, Mr. Gacy has been deeply involved in the community his entire life. Why, for years he has regularly dressed up as a clown and entertained the neighborhood children at our block parties!"

And whether or not we agree, we cannot dismiss out of hand the notion that Libby thought he was serving his country by his overall conduct in this episode, specifically by letting it be known, truthfully, that it was not the White House that tapped Joseph Wilson to look into whether Saddam Hussein had sought uranium in Niger.

I think Mr. Otis just blew my mind here...wait, I get it! Because there is a chance that Libby thought he was "serving his country" (and, by purest coincidence, his boss) by engaging in the underlying behavior he was convicted of lying about, it's okay that he lied about it! "I'm sorry I lied when I said I didn't line up those villagers and gun them down, your honor, but you cannot dismiss out of hand the notion that I thought I was serving my country when I pulled the trigger...so you see, you can't possibly send me to prison." Oh, and from now on, I would like to see more newspapers refer to leaking as "letting it be known." It just rolls off the tongue, doesn't it?

A sense of proportionality argues in favor of eliminating Libby's prison term. This was an unusually harsh sentence for a first offender convicted of a nonviolent and non-drug-related crime.

Wow, Mr. Otis is right! A man who lied to federal investigators about the alleged leaking to the press of the identity of a covert agent in apparent retribution for the agent's husband's public questioning of a key piece of evidence used to bolster the administrations causus belli for a preemptive war is far less deserving of prison time than, say, Thomas Grossi, Sr. (2 1/2 years, just like Scooter!) or Mario Pacetti (only a year and a day), a pair of lawless scumbags who were recently convicted of growing (oh, excuse me, "manufacturing") marijuana in an Oakland warehouse and providing it to a medical cannabis dispensary that was licensed by the City of Oakland (I eagerly await Mr. Otis' interpretation of the Commerce Clause, by the way). And Mr. Pacetti actually admitted wrongdoing and expressed remorse! Why should a convict who actually admits he is guilty and says he's sorry be sentenced to less time than a convict who has never admitted any wrongdoing? After all, "we cannot dismiss out of hand the notion" that Libby didn't actually commit the crime he has been convicted of, now can we?

Sandy Berger, national security adviser to President Bill Clinton, was not sentenced to prison for sneaking documents out of the National Archives, destroying them and then lying to investigators. For his actions, Berger received no jail time, a fine one-fifth of that imposed on Libby and 100 hours of community service.

Ooooh, Mr. Otis is a genius! As long as I can point to someone else who was convicted of a superficially similar crime, a court shouldn't be allowed to impose any sentence harsher than what that other person received! I'm so glad that's cleared up!

And of course, Mr. Otis does eventually get to his real point:

To pardon Scooter Libby would not be consistent with the imperative that the mechanisms of law be able to demand, and receive, the truth. But to leave the sentence undisturbed would be an injustice to a person who, though guilty in this instance, is not what most people would, or should, think of as a criminal.

You see, your honor, even though he's guilty, Mr. Libby is a middle-aged, professional white male! Not some criminal! Now where have I heard that line of reasoning before? Oh yeah! After he was caught red-handed breaking into an Alexandria warehouse and stealing 90 handguns, a guy I went to high school with once told a Washington Post reporter: "It's not like I'm a criminal. I scored 1400 on my SAT." Of course, all that got him was a prison sentence and a mention in News of the Weird. Maybe Scooter deserves better...after all, he didn't just do well on the SATs, he also did well on the LSATs!

Commutation offers a middle ground. Unlike a pardon, commuting the prison sentence would not erase the conviction. It would leave Libby with the disabilities of a convicted felon -- no small matter for a lawyer and public figure.

It's so much easier for those no-name convicted felons who don't even have law degrees, isn't it? Why, Scooter won't even be able to vote in congressional elections! He'll be just like any other felon...or DC resident...you know, people like that.

But commutation would alleviate the harshest, and unnecessary, aspects of the sentence. A partial commutation would send the message that we insist on being truthful, but in the name of a justice that still cares about individual circumstances, we will not insist on being vindictive.

It's so true, Mr. Otis. Let's save the vindictiveness for the people who deserve it, like retarded people in Texas.