The Path To “Merciless” (Update)

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-BookerAs 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)[1] 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.

6 thoughts on “The Path To “Merciless” (Update)

  1. Richard G. Kopf

    Your concluding remarks are important. I hope everyone thinks hard about them.
    How in the hell could any sane person impose a life sentence on Hasan or even a sentence of 324 months. I did so, as a very young judge, and I wrote a long opinion explaining why. But I do want you to know that I came close to concluding “hell no” and saying I hereby quit this stupid fucking job. But, I was, as Lorin Duckman pointed out gently to me while using different words, a “good German” judge.
    I almost became an academic. I studied classic political thought. When I became a judge, I believed and understood that Congress had the right to set punishments and I had the obligation to enforce them in almost every circumstance. No game playing. Play it straight up. Do what Congress tells you because, and this is and was very important to me, the role of an unelected life tenured federal trial judge is very hard to square with democracy unless the judge’s role definition is greatly circumscribed. These thoughts were in mind in 1993—I really labored over that sentencing opinion. Ultimately, I concluded that Hasan participated in the sale of a shitload of crack and that crack ripped the lives of poor black people apart. Who was I to say that Congress was wrong and a life sentence was too harsh for someone who knowingly poisoned some of the least among us?
    Those thoughts are still with me, but I much less certain about them. In fact, I much less certain about every aspect of judging. And, that is why I write my blog. I have doubts about myself as a judge, and they are profound doubts. The People have every right to know about the frailties of judges like me. Your concluding remarks may well highlight one of my biggest failings.
    I should say, “thanks” but I won’t. All the best.

    1. SHG Post author

      One of my issues with the judiciary is that it’s become a secondary career path for lawyers, where lawyers who are really too young, too inexperienced, get the nod and see a very long career on the bench ahead of them. And like all young people, they have aspirations for the future. This creates a terrible conflict. I go before judges now who weren’t lawyers before Mistretta. The guidelines are their reality, and they know nothing else.

      You mentioned Harold Baer. I remember all too well what happened. He saw his future die. He pondered whether his present would be an impeachment trial. And he caved. It was one of the worst moments for the judiciary I’d ever witnessed.

      And so I think of Jack Weinstein, and John Kane, and how they know they will never make the Supremes and have no plan to waste the time they have left by acquiescing to the demands of grocery clerks. At this stage of my life, I believe that I would have the balls of these judges to stand up to the tyranny of the majority because the job of judge is not to please the masses. But that’s easy to say now. I don’t know how easy it would have been do had I been made a kid judge.

    2. Ted H.

      “I believed and understood that Congress had the right to set punishments and I had the obligation to enforce them in almost every circumstance. No game playing. Play it straight up. Do what Congress tells you because, and this is and was very important to me, the role of an unelected life tenured federal trial judge is very hard to square with democracy unless the judge’s role definition is greatly circumscribed.”

      I admit that I am inexperienced new lawyer, but I nevertheless see it exactly opposite. The purpose of merit selection combined with life tenure provides the appropriate check to an overreaching legislature. When laws are unjust, unconstitutional, or disrupt the balance between the branches, the insulation of a life tenured judge rightly allows him or her to dispense justice independently of the other branches. In the past 10 years we have seen that where judges are elected, albeit at the state level, they feel compelled to be “tough on crime” and tend to favor the prosecution, especially come election time. The selection of judges based on merit, combined with insulation from the politicized nature of the other branches, to me, squares well with a required anti-majoritarian check necessary to a healthy democracy. Too many legislatures pass flavor of the month legislation to score quick political points for the next election cycle . Life tenure, on the other hand, gives judges the protection they need to take the long view.

      1. william doriss

        You have a textbook, idealized, “Ivory Tower” view of the the judiciary, I’m afraid. Unfortunately, it has not worked out the way you describe, Ted. Not lately, not in my adult lifetime. The problem now is, how do we achieve widespread acknowledgement of problems in the judiciary and how do we correct them? Are they correctable at all? Some of us fear not.
        Personally, I don’t think lifetime tenure, or long tenure, of judgeship is the answer. The very features which you think are important, I think may be impediments,… to change and “progress” in the judicial branch.

        1. SHG Post author

          Ted’s point is idealized, but that’s the rationale behind lifetime tenure, that judges can be bold and do right without fear of transient concerns. Judge Kopf’s mention of Harold Baer was similarly directed to that point. Judge Baer did the right thing and saw his judicial career destroyed overnight, and threatened with impeachment for it. Life tenure is more fragile than some think.

        2. Ted H.

          This post is about judge’s pressure to follow in step with constitutionally questionable legislative mandates re: sentencing. Judge Kopf feels that his lifetime tenure shouldn’t protect him from questionable laws. Baer went against it and was attacked virulently. To me, this means that Judges aren’t adequately insulated to rule how they see fit. At the district level, such rulings are subject to appeal, and then generally must follow the direction of the higher court. We see that it has “not worked out” here, because lifetime tenure didn’t seem to provide enough protection in the case of these two judges. Things haven’t “worked out” not due to lifetime tenure, but because of increasing movements to politicize the judiciary at all levels. From this, it seems as though more insulation is needed rather than less.

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