In a post entitled “Merciless,” Judge Kopf tells the story of Stephanie Lomax, now known as Hamedah Ali Hasan, who he originally sentenced in 1993 after trial for crimes that occurred from 1988 to 1991.
The point of the story was to explain the twisted path Ali Hasan took to reach an eventual sentence of 262 months in prison, almost 22 years, for 5.9 kilograms, just under 13 pounds, of crack.
The point of the story was, despite Judge Kopf’s support, that the absurdly harsh sentence imposed was never given serious consideration for clemency by the President or Department of Justice.
She had served between 18 and 19 years in federal prison having convinced everyone with knowledge that she had been fully rehabilitated long before. The child that Hasan gave birth to in prison was nearly an adult. The clemency provisions of the Constitution and our laws on clemency had failed Hasan and the rest of us. Her treatment was merciless rather than merciful.
Because of this, the judge views the government’s new-found position on clemency to be politically cynical and disingenuous. It’s not only a fair view, but one that’s shared across the political spectrum. It’s not that some of us don’t applaud the fact that it’s happening, but we’re not fooled by this 11th hour epiphany either.
However, what was most striking about Judge Kopf’s post was the detail of his story about Ali Hasan’s sentencing. She had the misfortune to be convicted post-Mistretta and pre-Booker. As was the norm at the time of her crimes, it was for cocaine base, crack to everyone not on a government paycheck, when it was the demon drug worthy of 100 times the severity of powdered cocaine, the joy of Studio 54. And, for those whose memories have faded, justifications for downward departure, according to the Sentencing Guidelines Commission, were fewer than unicorns.
This is where the sentencing story begins:
Hasan was held responsible for 5.9 kilograms of cocaine base, placing her at base offense level 40. She received a three-level upward departure for her role as a manager in the conspiracy. On October 20, 1993, I sentenced Hasan to the following concurrent terms of imprisonment: Counts I and VII — life; Counts IV and V — 480 months; Counts VI and VIII — 240 months; Count IX — 60 months; and Count X — 48 months. I wrote a very long opinion explaining why I felt bound to impose the life sentence even though I thought it was far too harsh.
On November 1, 1994, Amendment 505 to the Sentencing Guidelines eliminated base offense levels 42 and 40 from the drug quantity table in U.S.S.G. § 2D1.1. The amendment was made retroactive. In 1998, Hasan filed a motion to reduce her sentence under 18 U.S.C. § 3582(c)(2) in light of retroactive Amendment 505. Hasan also asked the Court to consider her post-sentencing rehabilitative conduct during her imprisonment as grounds for a downward departure under U.S.S.G. § 5K2.0. In resentencing Hasan in 1999, under § 3582(c)(2), I applied Amendment 505 and reached a new total offense level of 41. I also departed 8 levels downward to offense level 33 based on her post-sentencing in-prison rehabilitative conduct under U.S.S.G. § 5K2.0.
This is the middle of the story:
The en banc Eighth Circuit Court concluded that the I abused my discretion in granting a downward departure under § 5K 2.0 in a § 3582(c)(2) resentencing. United States v. Hasan, 245 F.3d 682, 684-85 (8th Cir. 2001). The Eighth Circuit explained that a district court under the relevant circumstances must make two determinations: (1) the sentence that it would have imposed had the new sentencing range been the applicable range at the time of the original sentencing; and (2) whether to give the defendant the benefit of that reduced sentence. Id. At step (2) the district court may consider any applicable factors listed in 18 U.S.C. § 3553(a) only insofar as it considers where within the new guideline range to sentence the defendant; § 3553(a) may not serve as a mechanism for a departure below the guideline range. Id. at 685. Therefore, the Eighth Circuit concluded that I abused my discretion in departing below the new guideline range under § 3553(a) because a downward departure was not granted at the original sentencing. Id. at 686 (discussing U.S.S.G. § 1B1.10). Since post-sentencing conduct could not have been a factor at the original sentencing, the Eighth Circuit stated that the below-the-guideline sentence could not stand. Id. at 686-90. The court reversed my grant of the downward departure motion and remanded the case for imposition of a 324-month sentence. Four judges dissented, stating that the earlier panel decision explained their reasoning. Id. at 690-91. Hasan’s petition for certiorari was denied. Hasan v. United States, 534 U.S. 905 (2001).
And, after Judge Kopf recused himself, this is where it ends:
On November 7, 2011, and applying the 2011 amendments to the “crack” Guidelines, and based upon the government’s stipulation, Judge Smith Camp reduced Hasan’s sentence of 324 months (my 2002 sentence compelled by the en banc opinion of the Court of Appeals) to 262 months. With credit for good time, Hasan was released a few minutes before 9 a.m. on Feb. 7, 2012.
You might think this pretty much captured the twisted tale, but the full story is far longer, far more involved, far more twisted. And that is why it’s noteworthy here. For those of us in the trenches of federal sentencing during the glory years of the sentencing guidelines, the nearly 20 years during which the Supreme Court neglected to mention that they were only kidding when they told us they were mandatory, before they gave us the punch line in Booker, numbers like level 42 and 324 were uttered without emotion, as if there was no responsibility for the insanity.
Reading Judge Kopf’s story, it struck me that if any normal (meaning, non-criminal defense lawyer) was told that this was how sentencing worked, the calculations, the reference to a book filled to the brim with one-size-fits-all rules, navigating the Byzantine maze of charts, notes, enhancements, admonitions, more charts, cautions, more application notes and precatory warnings that no matter what a judge thinks, the United States Sentencing Commission, in its infinite wisdom that changed once a year knew better, and the judge was to sentence by calculator or get smacked.
It was utterly insane that this was the Rube Goldberg machine for disposing of human lives. One line of the story strikes at the heart:
I wrote a very long opinion explaining why I felt bound to impose the life sentence even though I thought it was far too harsh.
While I understand exactly why Judge Kopf says this, I also find it incomprehensible that this could be the position of a United States District Court Judge, that a rule book and committee compelled a judge to impose too harsh a sentence. I would like to believe that they could have put a gun to my head and I still would have refused to impose a sentence I thought to be too harsh, but then, that could explain why I was never made a federal judge.
And the most brutal, inexplicable part of this cruel and bizarre story is that it was nothing more than a mistake, as the Supreme Court finally admitted in 2005. To all those whose lives were destroyed in the interim when judges willingly accepted the role of grocery clerk with a checklist, sorry.
Update: Addressing the new DoJ policy, Judge Kopf adds this note to Ali Hasan:
Sorry Ms. Hasan. Time flies. In your absence, your children have grown up and have children of their own. Why did it take us so long? It’s complicated. Shit happens.
The new policy is formulaic, but then the government adores rules that provide for simple-minded consistency. And perhaps that’s the real reason why it took so long. It’s really not that complicated, provided you recognize that grocery clerks’ adoration of checklists isn’t really necessary, but rather a fetish. But shit, indeed, happens.