A brief clemency follow-up and a question for Nebraska’s US Attorney

Yesterday, DOJ announced a new Pardon Attorney and six criteria to determine eligibility for the expanded commutation policy. Those new criteria apply to inmates like these:

1. They are currently serving a federal sentence in prison and, by operation of law, likely would have received a substantially lower sentence if convicted of the same offense(s) today;

2. They are non-violent, low-level offenders without significant ties to large scale criminal   organizations, gangs or cartels;

3. They have served at least 10 years of their prison sentence;

4. They do not have a significant criminal history;

5. They have demonstrated good conduct in prison; and

6. They have no history of violence prior to or during their current term of imprisonment.

Had these criteria been earlier adopted and implemented, Hamedah Ali Hasan would have become the prototypical candidate, freed of the nightmare I wrote about yesterday. For her, all this recent sound and fury signifies absolutely nothing.

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.

One last item.

Buried at the bottom of the DOJ’s statement is this little nugget:

Deputy Attorney General Cole sent a letter to all of the 93 U.S. attorneys asking for their assistance in identifying meritorious candidates and notifying them that the Pardon Attorney’s Office will be soliciting their views on petitions that appear to meet the criteria after an initial screening by the lawyers in the Office of the Pardon Attorney. (Emphasis added by Kopf.)

Note to self: What steps will the US Attorney’s office in Nebraska take to promptly comply in good faith with the new affirmative obligation to “identify[] meritorious candidates . . . .”  Mrs. Gilg, are you listening?

RGK

Merciless

Yesterday, I linked to SL&P and asked that you read Doug Berman’s post regarding President’s Obama’s newly announced policy, heralded by General Holder, to expand clemency for nonviolent drug dealers. Today, I write about my one utterly depressing experience with DOJ and the commutation process. I also criticize President Obama and Attorney General Holder for their tardy response to a national disgrace.

Preface

I loathe “crack.” I suppose that hatred comes from seeing up close the destruction of black communities caused by that cheap and effective drug. Having an aging and poor crack whore hang herself in a cell adjacent to the courtroom where I just pronounced a long sentence upon this poor woman perhaps provides a context for my strong views. Bestowing mercy on those predators who dealt drugs to that gal, even ones who are “nonviolent” (a term I find misleading), rubs me wrong and strongly so. But I also understand why Presidential clemency helps our criminal justice system dispense a needed degree of mercy by leavening sentences that now appear too long even for those who are unquestionably criminals whose behavior has done great harm.

Stephanie Lomax, now known as Hamedah Ali Hasan

In 1993, after a jury trial, Hamedah Ali Hasan was found guilty of the following Counts in the Superseding Indictment: I (conspiracy to distribute and possess with intent to distribute cocaine), IV-VIII (distribution of and/or possession with intent to distribute cocaine), IX (interstate travel in aid of racketeering), and X (use of a communication facility in furtherance of a conspiracy). She committed the offenses between 1988 and 1991.

She had no criminal history and she had no misconduct while on pretrial release in 1992 and 1993. She had two children and was pregnant with a third at the time I sentenced her. Hasan, who is black, was fleeing an abusive relationship when she moved from Oregon to Omaha to operate a drug business with two relatives. She was in her early twenties.

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.

I, therefore, granted Hasan’s motion to reduce her sentence and sentenced her to the following concurrent terms of imprisonment: Counts I, IV, V, VI, VII, and VIII — 144 months; Count IX — 60 months; and Count X — 48 months. The Eighth Circuit initially affirmed the sentence; however, the panel’s opinion was vacated and the case was heard en banc. United States v. Hasan, 205 F.3d 1072, 1075-76 (8th Cir. Feb. 29, 2000), vacated, 213 F.3d 1049 (8th Cir. 2000). The original panel  majority concluded the opinion stressing Hasan’s extraordinary rehabilitation in prison, and stated, “Although the Government does not argue Hasan’s rehabilitative efforts are not extraordinary, we agree with the district court that they are. We thus affirm the district court’s resentencing order.”

There was never any doubt that Hasan had been rehabilitated.  The evidence presented at my hearing and otherwise proved her rehabilitation beyond question. It is accurately itemized in detail in her counsel’s 2010 letter supporting the second application for commutation which may be found here on pages 8 through 11. So far as I know, no government official has ever disputed any of this evidence.

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).

On remand in 2002, and pursuant to the mandate of the Circuit, I resentenced Hasan to the following concurrent terms of imprisonment: Counts I, IV, V and VII — 324 months; Counts VI and VIII — 240 months; Count IX — 60 months; and Count X — 48 months.

Several years later, Hasan filed motion, and a supporting brief, relying on the then recent retroactive amendments to the existing crack cocaine sentencing guidelines set out in U.S.S.G. § 2D1.1 as well as U.S.S.G. § 1B1.10. The government filed no brief in opposition. I recused himself from that case.  On July 8, 2008, I wrote that:

ORDER as to defendant Hamedah A. Hasan Hamedah Hasan has filed a motion to reduce her sentence due to the amendment of the crack cocaine Guidelines which have now been made retroactive. I am no longer impartial when it comes to Hamedah Hasan. I asked the President to commute her sentence* and I appeared in a film** about her, urging that she be given relief. More recently, I was advised by the Justice Department that the commutation request was denied by the President, and I expressed my disgust about that decision to her lawyer.*** Therefore, IT IS ORDERED that I recuse myself from Hamedah Hasan’s case . . .

The case was reassigned to Judge Smith Camp.  Although initially agreeing that Ms. Hasan’s sentence ought to be reduced, Judge Smith Camp ultimately denied the motion on June 24, 2009 concluding that the law was against Hasan because of the highly intricate way the statutes defined “original sentence” for purpose of determining whether the amendments applied. Judge Smith Camp’s decision was correct in all particulars, although her heart was certainly not in it.

The second application for clemency followed on or about February 11, 2010 and a national campaign was begun to free Hasan. See, e.g., here (scroll down). So far as I know, that clemency application was never ruled upon.

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. See here for a poignant account of that release. 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.

President Obama and Attorney General Holder

It is worth remembering that clemency is entrusted to the President under the Constitution. Article I, Section 2, Clause 1 of the Constitution. (The President “shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.”) Clemency is not some incidental matter found in some long forgotten phrase in some dusty statute.

President Obama and Attorney General Holder have known for a long time that the clemency process was a sham.  For example, in 2010, Margaret Love, former U.S. Pardon Attorney (1990-1997), warned President Obama and Attorney General Holder that “To date, President Obama has taken no steps to reform and reinvigorate a pardon process that has, in Justice Anthony Kennedy’s words, been ‘drained of its moral force.’” Margaret Colgate Love, THE TWILIGHT OF THE PARDON POWER, 100 Northwestern University, School of Law, Journal of Criminal Law & Criminology, 1169 (2010). Ms. Love asked: “Why has the president’s pardon power essentially ceased to function?”**** She provided objective and detailed answers to that question. Until this week, President Obama and Attorney General Holder ignored the red flags and did nothing.

Why do they act now?  I have my own cynical speculations, but they are only speculations. What I do know is this:  President Obama and Attorney General Holder deserve no credit for doing the right thing at this late date. The federal criminal justice system has been sullied and harmed by their sloth-like approach to this pressing national problem of Constitutional dimensions. They deserve no praise. On the contrary, they deserve the same merciless treatment that Hasan received. It is time for them to shut up, stop crowing, and get on with fixing the problem once and for all.

RGK

*In 2003, I advised the Pardon Attorney that I vigorously supported the clemency application of Hasan. However, that application was denied by the Bush administration.

**I appeared in Reverend Melissa Mummert’s 2008 award winning documentary “Perversion of Justice” where I decried the failure to release Hasan. As the film documents, the title “Perversion of Justice” are my words. The link provides a short version of the documentary.

***That lawyer was Korey Reiman, whose young head is as bald as my old one. Korey began to help Ms. Hasan as a law student and continued to assist her throughout the nearly 20 years that followed. Korey makes me proud to be lawyer.

****For clemency statistics for each President, see here.

Executive clemency at the federal level

I commend for your consideration the following post that appeared yesterday in Doug Berman’s SL&P entitled Is Prez Obama likely to grant clemency to “hundreds, perhaps thousands” of imprisoned drug offenders? In a subsequent post or two, I will write about (1) my one utterly depressing experience with DOJ and the commutation process and (2) why this recent push strikes me as cynical ploy to burnish the reputations of a “lame duck” AG and his President.

RGK

 

 

Memorial ceremony for Judge Ross

On March 24, 2014, a joint session of the United States Court of Appeals for the Eighth Circuit and the United States District Court for the District of Nebraska was held in memory of Judge Donald R. Ross, my mentor. The ceremony materials are now on the web. See The Historical Society of the United States Courts in the Eighth Circuit (click on Ross page). In particular, I recommend viewing the video.

Remembering that Ross won the Distinguished Flying Cross twice, the ceremony begins with “Amazing Grace” performed on a trumpet by Staff Sergeant Carl Eitzen of the United States Air Force. It ends with the Sergeant performing the “Air Force Song.”

In between, there are remarks by (a) Chief Circuit Judge Riley and Chief District Judge Smith Camp (whose father was one of Judge Ross’ law partners);  (b) three appellate colleagues (Judge Myron Bright, Judge William Webster and Judge Roger Wollman); (c) one of Judge Ross’ remarkably talented children, Becky Ross, who is a distinguished trial lawyer and managing litigation partner at a large national law firm; (d) and the judge’s son-in-law, the highly regarded Justice Ken Stephan of the Nebraska Supreme Court. I was privileged to serve as master of ceremonies.

In particular, the remarks of Judge Ross’ friend Judge William Webster, former head of the FBI and then the CIA, is worth listening to (beginning at about 18:34) if only to hear one truly remarkable man speak about another truly remarkable man. But, if you have time, listening to the other speakers will give you an even better idea of a man who quietly became a national power broker and later a judge who, despite his past political affiliation, played things right down the middle as an appellate judge.

This was one of the most important events of my life. At the conclusion of the ceremony, I had fulfilled a solemn promise to a man I revered. Some things are more important than others.

RGK

 

 

Bald

photo (21)

As expected, my hair began to fall off such that Joan complained that I was worse than our old shaggy, long dead, and much beloved dog whose ashes we keep in a cedar box in the den. She was horrible dog, but we loved her dearly. My mind wanders.

Given the wifely complaints, I shaved the rest of my hair off. I am now as bald as Korey Reiman, a great young criminal defense lawyer who is bald (I hope) for reasons unrelated to ill-health.

I start the second cycle (round) of chemo on Tuesday. The first cycle (28 days) was pleasantly tolerable. The severe pain in my left leg is gone. I stress this point only to piss off the few crazoids who wish fervently for the cancer to eat me up. My mind wanders.

The worst part of the treatment is fatigue. While I work most everyday, I go home in the early afternoon when the fatigue rolls in like morning fog. A kindly nurse at the clinic told me that the fatigue caused by chemo drugs must be experienced to be understood. She is right. When the fatigue hits speaking out loud feels like lifting heavy weights. Walking seems like a death march. You put one foot forward but doubt that you can lift the second one to continue.

Five more months to go.

RGK

 

 

Why does Kopf believe cops most of the time?

I told Scott H. Greenfield at Simple Justice that I would answer the question posed in the title. And so I shall.

The following is not intended as an excuse. Indeed, it may be viewed as an indictment. With the foregoing keenly in mind, and in no particular order, here are some of my thoughts on why I have tended to believe cops most of the time.

  • I am a shitty judge of credibility. Truly, I am. See here for what happened when I believed a defendant and it blew up in my face with an editorial cartoon and the whole nine yards. Thus, when forced to judge between a cop and a defendant it is safer to believe the cop than the defendant particularly if a judge cares about his or her reputation. While pleading the subconscious in mitigation, there was a period of time when I really thought I might make it to the Circuit if I were a good little boy. See what happened to Judge Baer when he “screwed” up.
  • As an empirical matter, the vast majority of defendants are guilty. Therefore most defendants arguably have a more intense incentive to lie compared to the incentive of a cop.  This is particularly true when it is doubtful (save for the instant case where the cops were caught on video) that the real “truth” will ever come out.  Both the defendant and the cop know that there is little likelihood that their testimony will ultimately be proven true or false. Prison for the defendant is far worse than dishonor for the cop. Ergo, most defendants lie more frequently than most cops.
  • I have very seldom been faced with a situation where the defendant testifies and so does the cop. In suppression hearings, for example, defense lawyers keep their clients off the stand in most cases. Consequently, credibility testing on a one-sided record lacks the data necessary to make an informed credibility determination.
  • Cops are frequently armed with credibility enhancers like written consent forms, in-car or on-uniform cameras or audio receivers, drug dogs, damning Miranda interview statements buttressed by written advisement forms and more than one cop saying the same thing.
  • The cops I tend to see in federal court are very experienced and most often extremely well-trained. For example, a state trooper making an interdiction stop of a car with 20 kilos of cocaine in a secret compartment will almost always be an expert at making the stop and subsequent consent search bullet proof.
  • I was a magistrate judge for about five and half years. Making good credibility determinations when cops are involved requires practice. In the District of Nebraska, we use magistrate judges to handle all pretrial criminal motions. The district judges review those rulings on the record made before the magistrate judge. Whatever talents I had as a magistrate judge in 1992 to judge credibility of cops has deteriorated over the ensuing two decades. Frankly, this had made me cautious.
  • While I have never personally taken the MMPI (Minnesota Multiphasic Personality Inventory), I would guess that I would score high for respect for rules (authoritarianism). Put more simply, my personality, formed as white middle class child, strongly incorporates a positive but stereotypical view that we need rules and cops follow them. Even more simply, I believed the Dick and Jane books.
  • I used to represent county sheriffs in federal civil rights actions when they were sued in their individual capacities. While I also had my fair share of criminal cases, my county sheriff clients were far more honest than my clients who were defendants in criminal cases. Experiences like that are hard to erase when one looks at the world.
  • While I do not think of myself as “pro prosecution,” I deeply fear for our society because of the many predators I see on a daily basis. I suppose that if I am going to err, I err on the side of what I see as order.

Can I still function as a decent federal judge in a criminal case where a cop’s credibility is at issue? My answer is yes.

I am aware of my inclinations (implicit bias if you like) and I have done, and will continue to do, my level best to hold these impulses in check.  That is not a perfect answer, but it is the best I can do with what little I have.*

RGK

*For what it is worth, in 1984 and as an active Republican (serving as county chairman), I prosecuted Nebraska’s Republican Attorney General in an impeachment proceeding before the Nebraska Supreme Court.  Here’s a New York Times article on that affair. I add this to illustrate that I have not been hesitant to take a swing at high-ranking law enforcement officers even though the personal consequences of doing so were not pleasant.

Scott Greenfield and “Why Judges Won’t Condemn Cops”

At bottom, I like to think this blog is about legal realism.  That’s why I want everyone who reads this damn thing to go over to Simple Justice and read Scott’s post “Judicial Incentives: Why Judges Won’t Condemn Cops.

Because I have always believed that I could handle the truth, Greenfield’s post makes yours truly very, very itchy. Maybe Col. Jessep was right, at least about me.

What do you think about the post? Let Scott or me know. And, “no” I have not conspired with Scott on this matter. I leave conspiracies to right-leaning academics and drug dealers.

RGK

PS. Scott features Professor Will Baude’s take on lying cops. Guess where brother Baude teaches? Guess who received an undergraduate degree in Mathematics with a Specialization in Economics?  The foregoing said, and as Scott makes clear, you don’t have to buy into the “law and economics” stuff to accept Scott’s point.

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