It's Only Unjust When It Happens to Scooter

A few weeks ago, following Scooter Libby's conviction, I noted that there was something odd about all the editorials and op-eds by conservatives calling for a pardon:

These pieces are remarkable not only because they casually call for such an extraordinary remedy, but because of something they don't do. Typically, when confronted with genuine injustice, a concerned and conscientious observer attempts to identify the broader systemic problem that led to the injustice. He asks himself: how did this injustice come about? Is the law itself unjust? If not, were the rules under which the individual was tried fair and just? Were the individual's rights to counsel and to present his own defense respected? If so, was there some corruption of the trial process itself, a corrupt or incompetent judge, a biased jury, incompetent counsel, etc.?

The reason a conscientious observer asks these questions is because he wants not only to remedy the injustice that has occurred, but to ensure that it does not happen again or has not happened already to similarly situated defendants. Notably absent from the opinion pieces calling for Libby's pardon, however, is any attempt to explore or identity the problems in the system that resulted in this supposed injustice. And that absence speaks volumes. . . .

Conservatives are essentially treating the Libby case as a one-off situation. They have no problem with the law itself or with our criminal justice system generally. They just disagree with the outcome in this particular case and want to change it. There's something almost self-evidently discrediting about that.

Following Libby's sentencing, I reiterated this point:

The same is of course true of the complaints about Libby's sentence. Libby was sentenced in accordance with the federal sentencing guidelines. Yet no one is calling for a repeal or amendment of those guidelines to prevent this sort of "injustice" from recurring.

I made the same point again a few days later:

Moreover, and this is what really bothers me, the people who are complaining about Libby's sentence and demanding that it be commuted are--notably--not claiming that the sentencing guidelines themselves are unjust or should be amended. There's a strong case to be made, in my opinion, that the federal sentencing guidelines are excessive across the board. But the folks at the National Review and Weekly Standard don't care about the excessive sentences that are handed down every day in courtrooms all across the country. They want to treat Libby's case as a one-off situation.

Well, today, the absurdity got ratcheted up to a whole new level. The AP reports (h/t Hilzoy) that Republicans will soon be pushing for mandatory minimum sentences for nearly all federal crimes:

The Bush administration is trying to roll back a Supreme Court decision by pushing legislation that would require prison time for nearly all criminals.

The Justice Department is offering the plan as an opening salvo in a larger debate about whether sentences for crack cocaine are unfairly harsh and racially discriminatory.

Republicans are seizing the administration's crackdown, packaged in legislation to combat violent crime, as a campaign issue for 2008.

In a speech June 1 to announce the bill, Attorney General Alberto Gonzales urged Congress to reimpose mandatory minimum prison sentences against federal convicts -- and not let judges consider such penalties "merely a suggestion." . . .

Judges, however, were livid over the proposal to limit their power. "This would require one-size-fits-all justice," said US District Judge Paul G. Cassell, chairman of the Criminal Law committee of the Judicial Conference, the judicial branch's policy-making body.

The inability (or unwillingness) of Republicans to see the inherent contradictions between what they are saying in one context and what they are saying in another never ceases to amaze me. When Scooter Libby is sentenced in accordance with existing sentencing guidelines, Republicans respond, almost universally, by decrying the injustice of this supposedly excessive sentence. But they respond legislatively by seeking to increase mandatory minimum sentences for federal crimes, further tying the hands of federal judges and limiting their ability to be lenient when circumstances warrant leniency.

In other words, not only are they unconcerned that the "injustice" that befell Scooter Libby might be repeated (or has already been repeated elsewhere), they are taking affirmative measures to ensure that thousands of additional unjust and excessive sentences will be handed down every year.

To the extent Republicans genuinely feel that Scooter Libby was treated unfairly by our criminal justice system, you would think this would cause them to--at least for a moment--question their preference for one-size-fits-all sentencing. You'd think this episode might cause them to take a step back and wonder whether there might be other cases where the statutorily prescribed sentence is just a little too harsh. You might even think Republicans would start to see the idiocy of these kind of sentencing laws.

But you'd be wrong. The truth is, it's only unjust when it happens to Scooter.