July 3, 2007 11:42AM


You could make a case either way on the Scooter Libby commutation. On the one hand, the jury found that Libby had perjured himself and obstructed justice–the sorts of offenses that Republicans thought were serious as recently as, oh, 1999. On the other hand, special prosecutor Patrick Fitzgerald wasn’t able to charge anyone with the underlying crime (leaking CIA agent Valerie Plame’s name), so the prosecution had a bogus Martha‐​Stewart‐​case aspect to it. 

What you cannot do–at least with a straight face–is argue that of the over 160,000 federal prisoners and thousands more awaiting sentencing, Scooter Libby was the most deserving of clemency. 

As the Sentencing Project reports [.pdf], “Nearly three‐​fourths (72.1%) of the [federal prison] population are non‐​violent offenders with no history of violence.” Some of them, like Weldon Angelos and others on the FAMM list David Boaz links to below, fell victim to the federal jihad against drugs (55 percent of federal prisoners are serving time for drug offenses). Others, like David Henson McNab (who has filed a clemency petition with the president, to no avail) fell victim to the prosecutorial zeal combined with the increasingly bewildering array of federal crimes that make a mockery of the rule of law. 

The pardon power is one that unquestionably makes the president the sole “decider.” It does so in part, as Hamilton explains in Federalist 74, because without room for mercy, “justice would wear a countenance too sanguinary and cruel.” Yet President Bush has shown little interest in wielding this power. His 113 clemency actions thus far place him below all two‐​term presidents save George Washington, who, in fairness, didn’t have a lot federal crimes to work with. 

The Libby commutation isn’t anywhere near the worst abuse of the pardon power in American history. James Hoffa, Richard Nixon, the FALN terrorists–all stink worse than the president’s action yesterday. But that doesn’t mean the Libby commutation smells good. “Compassionate conservatism” is a notably mushy and amorphous concept. Yet we now have a better idea of what it means in the criminal justice context: something like, “Prison? That’s not for our people!”