Trump Commutes Roger Stone’s Sentence. Let the Reformers’ Hypocrisy Begin!

The President today commuted Roger Stone’s 40-month prison sentence, which he was to start serving shortly.  As I noted in my earlier post on the Stone sentencing, Mr. Stone seemed to me to be a lifelong blowhard and bully.  He was convicted on ample evidence of witness tampering.  The line prosecutors (members of the Mueller team) recommended a sentence of seven to nine years.  Their superiors at DOJ thought that excessive, and changed the recommendation to roughly three to four years.  The sentencing judge, an Obama appointee, apparently agreed with the superseding, more lenient recommendation.

There was much debate about whether the lighter recommendation was merely political genuflection to the President’s wishes, or was instead, and as I believe, justified on the merits of the Department’s assessment of the Sentencing Guidelines.  But that debate will seem tame compared to the one about to begin about today’s commutation.

The harshest condemnations of the President’s actions will, I’ll bet my house, sound roughly like this:  “Once again, we see the President bypass established procedures within the Justice Department to hand out special treatment to his cronies and allies.  This is a flagrant circumvention of the judicial system, one that calls further into question whether the rule of law can survive Donald Trump.”

That will be today’s line.  Gone with the wind will be yesterday’s, and last month’s and last year’s, which went like this:  “The United States disgraces itself before the world by insisting on caging elderly, first-time, non-violent offenders.  This is true in any event, but is especially true now, since packing prisoners of this sort into crowded facilities cruelly enhances their risk of contracting COVID-19, and could easily wind up being a death sentence.”

Roger Stone is, of course, an elderly (67), first-time, non-violent offender.  The court had already postponed his prison reporting date because of COVID concerns.  And I would note that, just this morning, top-drawer sentencing reform advocate Prof. Doug Berman had this to say in his Sentencing Law and Policy entry titled, “Is releasing people from prison really that hard? I suppose it is if you cannot shake a carceral mindset“(emphasis added):

For anyone eager to see a US criminal justice system operating with a deep commitment to liberty and justice, this [retrograde] thinking should be — must be — completely flipped. The proper “daunting” moral question is who deserves to still be incarcerated, especially amidst a global pandemic with inherently and worsening inhumane prison conditions. If an incarcerated person is “truly penitent” OR likely has “matured past his violent tendencies” OR has the “family of the victim” in support, then that person ought no longer be incarcerated. And, even without anything close to a “perfect record,” an alternative to incarceration should still be the presumption for any and everyone whose crime or criminal record is not truly heinous.

Not that Roger Stone had any violent tendencies to begin with, or could be regarded as “truly heinous” in a criminal justice system that regularly deals with murder, rape, robbery, aggravated assault, child battering and the rest.

If this morning’s standard for leniency is to apply to this afternoon’s commutation, then SL&P and other pro-sentencing reform sites will have enthusiastic praise for the President’s action.  Somehow, though, I just don’t think that’s going to happen.  The early reporting is anything but enthusiastic, see here, here and here.  Indeed, one might say it’s acerbic.

My point here is not to needle Doug Berman.  Indeed it is not to either applaud or condemn today’s commutation.  It is simply to note that sentencing “reformers” are giving us an important clue about their underlying thinking when they apply one set of standards  —  those supposedly taking root in compassion  —  to smack pushers and street hoodlums,  and a different set, rooted in the very same cynical, cold-hearted and punitive outlook they’ve spent years upbraiding, to an unappetizing defendant who has the misfortune of being the ally of a President they detest.

UPDATE:  Prof. Berman did post about the Stone commutation, here.  He does not applaud it, but doesn’t condemn it either.  Helpfully, he does link to the official White House statement setting forth the President’s thinking.

I might add that other commentaries saying that the commutation is a “circumvention” of the criminal justice process are incorrect, for two reasons.  First, executive clemency is part of, not a way around, the criminal justice process  —  something sentencing reformers and others promoting leniency are usually eager to point out.  Second, because the action obviates the sentence but not the conviction, Stone remains free to pursue his appeal, and the higher courts accordingly will be able to chime in.