Does a defendant's background matter for sentencing purposes? President Bush apparently thinks that it does, because he cited Scooter Libby's background and service to his country as a reason to commute his sentence. I agree. I am a guardian ad litem, a lawyer for children in the abuse and neglect system in the District of Columbia. Many of the children I represent grow up to commit crimes. Unfortunately, my clients are denied the considerations that President Bush extended to Scooter Libby.
Does a child raised by an abusive, drug-addicted prostitute, who grew up actually sharing the working bed of his mother, deserve the same sentence as the middle-class coddled priest? If the offense is the same, under our Sentencing Guidelines, the defendants get the same sentence. The U.S. Sentencing Guidelines were enacted partly to reduce sentencing disparities favoring the wealthy. Hate them or love them, the guidelines have been successful in that effort. Sentencing under the guidelines results in some of the most racially equitable sentences in the U.S., as long as one excludes "departures," or cases in which judges exercise their discretion to alter a sentence; once those are factored in, African-Americans serve sentences 12% longer than whites convicted of similar offenses.
One reason that the sentencing guidelines have been successful is because of their relentless focus on the crime involved, not the defendant. To this end, the Sentencing Guidelines prohibit consideration of a defendant's background and good deeds. In fact, a litany of legalese bars judges from considering a good deal of background: "lack of guidance as a youth and similar circumstances indicating a disadvantaged upbringing are not relevant," "mental and emotional conditions are not ordinarily relevant," "family ties and responsibilities are not ordinarily relevant," and, of course, "age (including youth) is not ordinarily relevant."
But now, suddenly, President Bush has decided that a defendant's background matters. I like this because of my clients, my incipient criminals -- oh if I could just tell you about their backgrounds. Give me the chance. How they pull their own hair out in the throes of a Post-Traumatic Stress Disorder nightmare, how they acquired the scars on their bodies, how they've lost friends to bullets on the street, how their hearts have visibly hardened over years of abandonment, first by parents then by social workers. And it's not just the pain of these children that needs to be told, it's also their struggle to do good, and the myriad ways in which that desire is blocked and smothered.
If background matters for one defendant, it matters for all. We live in a democracy, and that's what democracy means. After touring America in the early 1800s, Alexis de Toqueville wrote his famous Democracy in America, celebrating the virtues of our nascent democracy. His masterpiece noted certain holdovers of privilege still existing in American society. He cited the tendency of our law to protect the wealthy, observing, "A rich man never has to go to prison. as far as he is concerned, the law actually imposes no penalty worse than a fine. What could be more aristocratic?"
This isn't the same America that de Toqueville observed two hundred years ago. My clients are citizens with the same rights as Scooter Libby. The same laws apply to them. And they deserve the same consideration as Mr. Libby. Mr. Libby's story is more compelling to President Bush only because it was already known to him. Give me the opportunity to make my clients' stories known. Let judges consider what President Bush considered in commuting Scooter Libby's sentence.
Shannon Hall is an attorney and ad litem in Washington, DC.