President Bush Modifies Policy In Clemency For Libby

By ADAM LIPTAK The New York Times

Published: Jul 8, 2007

Until he commuted the 30-month prison sentence of Lewis "Scooter" Libby Jr. on Monday, President Bush had said almost nothing about his philosophy in granting clemency while at the White House.

As governor of Texas, though, Bush discussed and applied a consistent and narrow standard when deciding whether to issue pardons and commutations. That standard appears to be at odds with his decision in the Libby case.

Bush explained his clemency philosophy in Texas in his 1999 memoir, "A Charge to Keep."

"In every case," he wrote, "I would ask: Is there any doubt about this individual's guilt or innocence? And, have the courts had ample opportunity to review all the legal issues in this case?"

In Libby's case, Bush expressed no doubts about his guilt. He said he respected the jury's verdict, and he did not pardon Libby, leaving him a convicted felon. Bush also acted before the courts completed their review of his appeal.

"As governor, Bush essentially viewed the clemency power as limited to cases of demonstrable actual innocence," said Jordan M. Steiker, a law professor at the University of Texas who has represented death-row inmates.

"The exercise of the commutation power in Libby," Steiker continued, "represents a dramatic shift from his attitude toward clemency in Texas, and it is entirely inconsistent with his long-standing, very limited approach."

In the six years Bush was governor of Texas, a state that executes more people than any other, he commuted one death sentence and allowed 152 executions to proceed. He also pardoned 20 people charged with lesser crimes, said Maria Ramirez, the state's clemency administrator. That was fewer than any Texas governor since the 1940s.

As president, Bush has commuted three sentences in addition to Libby's and denied more than 4,000 requests, said Margaret Colgate Love, the pardon lawyer at the Justice Department for most of the 1990s. He has also issued 113 pardons and denied more than 1,000 requests. "His grant rate is very low compared to other presidents," she said.

Finding A Sentence Excessive

In commuting Libby's sentence, Bush said he had found it excessive. If Bush employed a similar calculus in Texas capital cases, he did not say so. Even in cases involving juvenile offenders and mentally retarded people, Bush allowed executions to proceed, saying that he was satisfied of the inmates' guilt and that they had received a fair hearing.

The U.S. Supreme Court has since barred the execution of juvenile offenders and mentally retarded people as a violation of the Constitution's ban on cruel and unusual punishment.

Jeanie Mamo, a White House spokesman, said Saturday that Bush "has been very careful and deliberate in the use of his pardon powers."

"The president commuted - not a pardon - the sentence of Mr. Libby based on thoughtful and deliberate reasoning and acted within the lawful authority granted to him under the Constitution, which he has used very sparingly," Mamo said. "As the president has said, he respects the jury's verdict and he felt the punishments that the judge determined were adequate which included a $250,000 fine, two years' probation and a felony conviction. … However, in this case, the president considered the 30-month jail sentence for Mr. Libby to be excessive."

Decisions Based On Summaries

As governor, Bush did not issue formal statements giving reasons for granting or denying clemency, Ramirez said. But in his memoir, Bush wrote that he considered clemency requests carefully.

"For every death penalty case," he wrote, "they brief me thoroughly, review the arguments made by the prosecution and the defense, raise any doubts or problems or questions."

Bush made many of his decisions in Texas based on case summaries prepared by his legal counsel, Alberto R. Gonzales, now U.S. attorney general. The 57 summaries were examined in a 2003 article by Alan Berlow in The Atlantic Monthly. Berlow found that they were relatively brief, often dwelt on the details of the crime and sometimes omitted information that lawyers for the inmates said was crucial. Bush apparently rarely reviewed the inmates' actual clemency petitions.

In a 1998 interview with The Austin American-Statesman, Bush said Texas' capital justice system, including its clemency process, was working well.

"All I can tell you," he said, "is that for the four years I've been governor I am confident we have not executed an innocent person, and I'm confident that the system has worked to make sure there is full access to the courts."

Bush's attitude toward clemency may have been influenced by a pardon early in his governorship. In 1995, he pardoned a man with an eight-year-old conviction for marijuana possession so he could work as a constable. A few months later, the man was arrested for stealing cocaine from a police station.

Austin D. Sarat, a professor of jurisprudence and political science at Amherst College and author of "Mercy on Trial," a study of executive clemency, said it was hard to reconcile Bush's actions as governor with the reasons he cited in the Libby matter.

"The grounds he offered for commuting Libby's sentence were equity - that the sentence was out of line with other sentences - or compassion," Sarat said. "Those two grounds seem so out of character with anything Bush had ever said or done in the area of clemency that it's as if he has become a different person."