Suggestions for Judge Walton on Libby's Supervised Release

There's a lot of buzz about Judge Walton's order (pdf) asking for briefs on whether Scooter Libby can be placed on supervised release since supervised release follows the service of a prison sentence and Libby didn't serve a prison sentence. [See,Scotus Blog, Sentencing Law and Policy, Big Tent Democrat and don't miss Christy at Firedoglake]

Howard Kieffer, who runs the excellent BOP Watch List-Serv, to which scores of criminal defense lawyers subscribe, has the response printed below.

Shorter version: The day Libby was booked is counted as a day in custody. He served (got credit) for his one day in prison and therefore can be put on two years of supervised release.


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.

Makes sense to me, thanks, Howard. Why not fax it to Judge Walton?

Here's another question: The penalty for a violation of supervised release can include a return to prison. What penalties can Scooter face if he violates supervised release?

Update: Appellate criminal law whiz Peter Goldberger of Ardmore, PA weighs in:

(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.

Similarly, the President could put someone (Libby or anyone else under a federal sentence) on parole for a post-1987 offense, or require that he reside in a halfway house for two years, or in home confinement for more than 10% of his sentence, or shorten a sentence to less than a mandatory minimum, or anything else. The president in granting a commutation, in other words, is not bound by the statutes that bind sentencing judges in imposing sentence, or the Bureau of Prisons in executing sentences.

And in this case, Bush's "proclamation" of clemency (as opposed to the press release, which used the term "probation") expressly left "intact and in effect" the "two-year term of supervised release, with all its conditions."

(2) While it follows from this that the judge needn't be concerned about the legality of the supervised release term in light of the commutation, he would have no legal power to do anything about it now even if he felt it were illegal, for two reasons.

First, after seven days go by, the federal sentencing judge cannot revise the sentence. Fed.R.Crim.P. 35(a). Also, he cannot revise the sentence in any event while an appeal of that sentence is pending, as it is in Libby's case, with only a few exceptions.

(3) One of those exceptions is this: If there is no bail or stay pending appeal (as in Libby's case), and a period of supervision is running, the judge can police and monitor the supervision while the appeal is pending.

Now comes the good part: The judge cannot "revoke" the supervised release just because he feels like it. A finding of wrongdoing in violation of the conditions would be needed. 18 USC 3583(e)(3).

However, without any finding of violation or other wrongdoing, simply on account of changed circumstances, after re-considering the 3553(a) factors [other than (a)(2)(A) (the seriousness of the offense, respect for law, and just punishment), but including (a)(2)(B) and (C) (deterrence and protection of the public), and notably including (a)(4) (the applicable guideline range)], the judge can modify the conditions of supervised release. 18 USC 3583(e)(2).

This includes the power to "enlarge the conditions." Among the permissible conditions that the judge could add (after a hearing pursuant to Fed.R.Crim.P. 32.1(c)) are, according to 3583(d):

Any of the discretionary conditions of probation listed in 3563(b), other than (b)(11) (halfway house residence) and "any other condition [the judge] considers to be appropriate."

Among those permissible conditions are:

  • 3563(b)(6): refrain from associating with specified individuals (Might this include Karl Rove or Dick Cheney?)
  • (b)(10): remain in custody of the Bureau of Prisons for nights, weekends or other intervals totaling no more than one year, during the first year of supervision.
  • (b)(19): home confinement during non-working hours, with or without monitoring.

Not that I'm suggesting anything.

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  • Display: Sort:
    Judge Walton sending a message (5.00 / 1) (#1)
    by sphealey on Wed Jul 04, 2007 at 01:24:28 PM EST
    > Makes sense to me, thanks, Howard.
    > Why not fax it to Judge Walton?

    I know federal judges are supposed to be infinitely patient and utterly disinterested, but it is hard for me to see this as anything other than Judge Walton sending a message that he is not happy.  I feel sorry for the next Bush Administration supporter or official who ends up in front of Walton on a criminal case.


    well -- i think judge walton had cause. . . (5.00 / 1) (#23)
    by the rainnn on Fri Jul 06, 2007 at 06:03:49 PM EST
    to be a little testy.

    the president's live remarks -- on cnn
    the morning of july 3, 2007 -- were
    pretty darn specific.

    they were also a disgrace.

    the president said "the judge's sentence. . .
    was too severe. . .

    as we all know, the sentence was well-
    within the guidelines -- i.e., required by law -- and
    it was a shorter sentence than the one handed
    down in rita v. u.s. -- a supreme court case.

    so, i absolutely understand why judge walton, an
    able, impartial, careful and dutiful federal
    judge, might bristle at being criticized by
    the president. . . FOR HAVING THE

    go figure.

    okay -- i'll shut up now -- my forehead is
    throbbing, and my neck-bolts need tightening. . .

    p e a c e


    He Was Appointed to FISA court (none / 0) (#2)
    by squeaky on Wed Jul 04, 2007 at 01:47:14 PM EST
    I feel sorry for the next Bush Administration supporter or official who ends up in front of Walton on a criminal case.

    Not going to happen for some time, at least while he stays at FISA.


    There's nothing I'd rather spend my 4th of July on (5.00 / 1) (#5)
    by Kitt on Wed Jul 04, 2007 at 02:30:40 PM EST
    than hunting down, following up with firedoglake, Talk Left, Scotus blog, and all the other references to IMPEACH these bastards!

    I forget - can I say bastards, here?  :)

    Dragging out my Thomas Paine, James Madison, Thomas Jefferson, Calvin & Hobbes, John and Samuel Adams, Alexander Hamilton - and the women who gave all of 'em the ideas, anyway - to read over looking for more "high crimes and misdemeanors."

    Judge Should Put Libby Under Personal Supervision (5.00 / 1) (#17)
    by Justina on Wed Jul 04, 2007 at 09:02:35 PM EST
    When I was a law student working in a legal aid clinic I represented an old woman who had been sentenced by one of Detroit's best Judges, George Crockett, to jail for shop lifting.  I filed my motion for immediate hearing for a new trial.  The judge keep my client and myself sitting in court for four days without actually ruling on the motion.  Each day he would tell us to come back the next day.  

    At 4:00 p.m. on the fourth day, he finally heard my arguments and put her on probation.  

    In the meantime, my client and myself had received a great legal education and my client had virtually served her jail sentence by sitting in court.

    Libby could sure use a similar education.  If he had to sit in Judge Walton's court every day for two years, without benefit of cell phone or other diversions, he would get the education in Constitutional law that he apparently ignored in law school.  Libby might even get bored enough to be inspired to talk to the prosecutor about what Cheney and Bush really did to obstruct justice.

    That is a great story (none / 0) (#19)
    by Jeralyn on Wed Jul 04, 2007 at 09:39:51 PM EST
    and wouldn't it be great if Libby had to spend some time learning first hand how the regular folks are treated.  Maybe Judge Walton will get creative with Libby's 400 hours of community service which are also un-commuted by Bush's executive order of clemency and require him to serve them at Legal Aid or a public defender's office.

    Correction (none / 0) (#21)
    by Jeralyn on Thu Jul 05, 2007 at 12:14:09 AM EST
    The 400 hours of community service are set out on Libby's sentencing order as a condition of supervised release. So they may go too if supervised release is thrown out.

    What do you mean, Squeaky? (4.50 / 2) (#3)
    by Peter G on Wed Jul 04, 2007 at 02:05:54 PM EST
    A FISA appointment is very part-time. A FISA judge continues to sit on her or his regular court also. Why do you think that would that prevent him from seeing any other Bushies on his regular caseload?

    Thanks For The Clarification (5.00 / 2) (#4)
    by squeaky on Wed Jul 04, 2007 at 02:08:58 PM EST
    I thought, given the amount of spying done these days, that FISA was a 24/7 job. Didn't know that he would still be working the same bench as well.

    24/7 (5.00 / 1) (#8)
    by Peter G on Wed Jul 04, 2007 at 02:47:16 PM EST
    A FISA appointment is indeed 24/7 in terms of availability to approve warrants.  The former chief judge (Lamberth) gave a public speech recently that I read about (not looking for link right now) in which he described approving warrants on 9/11 to intercept certain e-mail traffic from his cell-phone while driving somewhere (to work, maybe), within minutes of the plane hitting the Pentagon.  

    I read his speech, too, and it was a (none / 0) (#12)
    by scribe on Wed Jul 04, 2007 at 04:33:59 PM EST
    little different than you said:

    ...he described approving warrants on 9/11 to intercept certain e-mail traffic from his cell-phone while driving somewhere (to work, maybe), within minutes of the plane hitting the Pentagon.

    I recall his speech as being:

    ... approving warrants on 9/11 to intercept certain e-mail traffic from his cell-phone while stuck in traffic while driving to work, said traffic being next to the Penatgon at or shortly after the plane hit the Pentagon, and then being extricated from the traffic jam by the FBI.

    He was describing how effectively the FISA court and the FBI wokred together, to dispel the notion that FISA applications and the process are too "clunky" or "slow" to be bothered with.  

    He also described the judges of the FISA court having discovered an FBI agent had been lying on applications, which led them to bar him/her from further appearances - freezing out one of the FBI's top CI agents because he/she lied to them.


    Right you are, Scribe (none / 0) (#15)
    by Peter G on Wed Jul 04, 2007 at 04:58:22 PM EST
    Your 10-day memory bank is better than mine.  Here's the AP story.  It was a talk to the American Library Association, and it was as you say.

    As for the potential penalty for violation ... (none / 0) (#6)
    by Peter G on Wed Jul 04, 2007 at 02:42:50 PM EST
    On your other question, TL -- if Libby were to be found to have violated a condition of his supervised release (say, by failing to "work conscientiously at suitable employment," or by failing to refrain from excessive use of alcohol, or by committing contempt of Congress, or by leaving the District of Columbia [or whatever his geographical restriction may be] without permission of his probation officer, or whatever) the judge could indeed send him to prison "to serve ... all or part of the term of supervised release authorized by statute for the offense that resulted" in the sentence in the first place.  In this case, that would be a maximum of three years, I believe (unless anything he was convicted of carries a potential imprisonment max of 25 yrs or more, which I don't think it did).  There are advisory Guidelines which suggest lesser terms in Chapter 7 of the US Sentencing Guidelines Manual, which of course are  not binding but must be "considered."  This is all in 18 USC 3583(b) and 3559(a), btw.  I don't see anything in the Proclamation of Clemency that restricts any of this, and if anything the preservation of the term of supervised release "with all its conditions" suggests that enforcement of those conditions remains unaffected.

    Could the conditions ... (none / 0) (#7)
    by chemoelectric on Wed Jul 04, 2007 at 02:46:55 PM EST
    Could the conditions of supervised release involve tar or feathers?

    Speeding things up? (none / 0) (#9)
    by manys on Wed Jul 04, 2007 at 02:52:37 PM EST
    I don't believe that Walton is trying anything or is attempting to secure a political end, but it seems that Bush's only response to this would be to pardon Libby, causing Libby to lose his 5th Amendment and possibly providing continuance to Fitzgerald.

    Release conditions (none / 0) (#10)
    by jw on Wed Jul 04, 2007 at 04:08:25 PM EST
    Does the job of deciding conditions fall to a release-supervision division or to J. Walton? If J. Walton, will he ask the attys to brief him regarding conditions if he decides that conditions are in order?

    Is there anything that would restrict Bush from giving Libby another sentence commutation, should J. Walton (or whoever) impose or enlarge the conditions so as to make Libby's situation again "too harsh"?

    Authority over conditions ... (5.00 / 1) (#13)
    by Peter G on Wed Jul 04, 2007 at 04:47:26 PM EST
    ... is delegated to the U.S. Probation Office, which is an agency of the U.S. District Court. Ultimately, all conditions of supervised release have to be authorized by the judge.  The power to impose or modify conditions also lies with the judge, although it can be delegated to the probation officer to a limited extent (such as approving domestic travel beyond the normal geographical restriction, or approving a residence or job).

    And no, there is no restriction on the President's power to commute the sentence as often as or in any way that he likes.  He could, theoretically, reject the conditions of release imposed by the judge.  I've never heard of that happening, but there's always a first time for everything.  


    To quote George Bush (none / 0) (#11)
    by yetimonk on Wed Jul 04, 2007 at 04:09:58 PM EST
    on his commuting Scooters sentence
    He will remain on probation.

    Fitzgerald can raise this on Monday (none / 0) (#14)
    by masaccio on Wed Jul 04, 2007 at 04:49:06 PM EST
    Fitzgerald is required to address supervised release on Monday.  He could ask the court to recognize the changed circumstances and incarcerate the Scootie-poo for a solid interval, like, 345 days, with one day a month out to visit his family, which is the most important thing in his life according to all his friends.

    This seems wrong to me (none / 0) (#16)
    by Big Tent Democrat on Wed Jul 04, 2007 at 08:30:05 PM EST
    "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. "

    This is imposition of a sentence, not commutation.

    It may seem wrong ... (none / 0) (#18)
    by Peter G on Wed Jul 04, 2007 at 09:25:43 PM EST
    ... But that assertion is based on my reading of Schick v. Reed, 419 U.S. 259 (1974), which held that the President could commute a military death penalty to a sentence of life without eligibility for parole, even though the applicable military sentencing law did not recognize a nonparolable sentence of life imprisonment at that time.  And that the intervening decision in Furman, which in 1972 held unconstitutional the capital punishment statute under which Schick had been sentenced, did not change the situation.  A court could not change the condition and result of the 1960 commutation, even though Schick would have wound up with a parolable life sentence after Furman, had his sentence not been commuted (and had he not been executed in the meantime). The Supreme Court expressly held that no legislation could limit the authority and discretion of the President to commute a sentence.  Does your feeling to the contrary rest on any sort of legal authority, BTD?

    PeterG (none / 0) (#20)
    by masaccio on Wed Jul 04, 2007 at 10:32:58 PM EST
    I just love this bit of work.  From your electrons to Judge Walton's sharp pen.

    the judge should give Libby the chair (none / 0) (#22)
    by smiley on Thu Jul 05, 2007 at 10:21:31 AM EST
    No, I don't have any support for that.  I'm just saying.