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.

%d bloggers like this: