ACLU Files Commutation Petition On Behalf Of Man Serving Unjust Prison Sentence For Non-Violent Crime
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|> THE PEOPLE
the stories behind the sentences
|> THE ISSUE
the unjust crack-powder cocaine sentencing disparity
|> THE PRESIDENT
the power of forgiveness
Back in 1993, her original sentencing judge, the Honorable Richard G. Kopf, decried the crack sentencing statute under which Hamedah was convicted, yet reluctantly concluded that circuit precedent did not permit him to depart from the sentencing guidelines on the basis of their disparate impact. Judge Kopf recognized that the sad result of circuit precedent was a sentence he believed was profoundly unfair. He concluded his sentencing opinion in Hamedah's case (referring to her by her given name, Stephanie Lomax) with these words:
Insofar as T. Lomax and S. Lomax are concerned, the probable result of this opinion is that these two young people will be sentenced to life in prison. For whatever value it may have, it is my strongly felt opinion that neither T. Lomax nor S. Lomax ought to spend the rest of their days in prison. However, I have not yet found a principled basis for imposing a lesser sentence under the Guidelines. . . . Since my disagreement with these sentences is with many of the normative values underlying them, I am justified only in voicing that disagreement.
Judge Kopf later called on the President of the United States to commute Hamedah's sentence in the interest of justice.
The story behind the sentence. In 1988, Hamedah Hasan was a 21-year-old mother of two, fleeing an abusive relationship in Portland, Oregon. Hamedah tried living in various battered women's shelters in Portland and then in an apartment of her own, but her violently abusive boyfriend continued to track her down. Finally, in the spring of 1989, on the advice of family members, Hamedah went to live with her older cousin Ahad (then known as Tracy Lomax) in Omaha, Nebraska to escape the cycle of violence that had engulfed her in Portland. As Ahad recalls:
"Her boyfriend was a gang member and his main goal in life was to be the best gang member he could be. He beat Hamedah all the time and threatened to kill her. She could not hide from him in Portland — he knew where everybody lived. He drank a lot and used drugs. It was not a good environment for Hamedah to raise her kids in, and it wasn't safe for Hamedah either. So she came to me in Omaha."
Unfortunately for Hamedah, Ahad was a drug dealer. After Hamedah moved into a house he rented for her, Ahad started asking Hamedah to to assist with the drug operation. Hamedah knew that the operation was wrong, but, still reeling from her abusive relationship and fearful for her safety, she felt she had no other options to provide for the needs of her young children and reciprocate her cousin's help. Finally, after a little more than a year, Hamedah summoned her courage and returned with her daughters to Portland, where she started a welfare-to-work program and tried to start a new life — the life she had always envisioned for herself and her family, one in which she earned an honest living and modeled healthy behavior and self-reliance for her daughters.
But in 1992, after less than two years in Portland, Hamedah was arrested for her past involvement with Ahad's drug operation, despite the fact that she had committed no illegal acts since relocating to Portland. Lacking the financial means to hire a private attorney, Hamedah was appointed counsel with no criminal-law experience. Hamedah's was the first federal drug case the attorney had ever handled. The government wanted Hamedah to testify against her cousin in exchange for leniency, but Hamedah felt that she could not betray a member of her family. In 1993, Hamedah was convicted at trial of conspiracy to distribute cocaine base (crack). Under conspiracy law, someone like Hamedah is held liable for the entire amount of drugs associated with the drug operation — regardless of her role.
Although Hamedah, facing a desperate situation, admittedly chose to engage in criminal conduct, the overly punitive crack cocaine sentencing laws required that Hamedah pay far more of a debt to society than anyone believed was fair — including the judges compelled to levy and uphold the sentence. Though Hamedah had no criminal record, the United States Sentencing Guidelines, which were mandatory at the time of her sentencing, prescribed a term of life imprisonment.
You be the judge: Is 17 years for a non-violent drug offense enough time in prison for Hamedah Hasan?
Although Judge Kopf, who sentenced Hamedah, was prevented from helping her, history has vindicated his analysis of the crack-powder disparity. These were his words:
The 1:100 ratio between crack and powder reflected in the mandatory minimum sentences enacted by Congress have been a factor in driving the sentencing commission in developing the guidelines. This has resulted in sentences for crack cocaine being inordinately more severe than sentences for similar amounts of powder cocaine, and this disparity has been aggravated by the guidelines adopted in November of 1989 and subsequently. A by-product of this inordinate disparity is that members of the African American race are being treated unfairly in receiving substantially longer sentences than caucasian males who traditionally deal in powder cocaine, and this disparity simply is not justified by the evidence. . . .
The effect of this has been that a segment of minority members of our society are simply not being treated appropriately for the criminal conduct of which they have been found guilty.
The Supreme Court has since acknowledged that the crack-power disparity as reflected in the Sentencing Guidelines under which Hamedah was sentenced was not based on "empirical data and national experience" but merely tracked the now-discredited 100:1 formula that Congress had enacted in the mid-1980s. Had Hamedah been sentenced today, Judge Kopf could have departed from the sentencing guidelines on the basis of the policy judgments he expressed but could not implement at the time.
Over the decades, the U.S. Sentencing Commission has tried several times to revise the crack cocaine Guidelines downward to ameliorate some of the unfairness produced by the crack-powder disparity. While Congress blocked the Commission's first attempt to revise the Guidelines and refused to act on the Commission's subsequent recommendations, when the Commission amended the Guidelines in 2007, Congress finally acquiesced, and in an unusual step reflecting the seriousness of the injustice the Commission made the change retroactive.
Though Hamedah did benefit from some of these reforms — her sentence decreased from life to 27 years, after Judge Kopf tried unsuccessfully to reduce her sentence further in light of her "extraordinary efforts of rehabilitation" — many of the corrective changes to sentencing law have come too late to help her or do not apply to her case. For instance, the recent Supreme Court decision Kimbrough v. United States would permit Judge Kopf to sentence a defendant like Hamedah to the lower sentence he believed she deserved if she came before him for the first time today, but the principles guiding the decision in Kimbrough do not apply retroactively. And when Hamedah tried to avail herself of the Sentencing Commission's recent revisions to the crack guidelines, she was subjected to a roller coaster of judicial decision-making that brought her tantalizingly close to freedom only to again be denied relief: This past June, Hamedah's new sentencing judge, the Honorable Laurie Smith Camp, initially adopted Judge Kopf's prior findings regarding Hamedah's extraordinary post-conviction rehabilitation, called the 27-year sentence "unreasonable and excessive," and issued a dramatic downward departure to 12 years (time served). Five days later, however, Judge Smith Camp ruled that the change in law did not apply to Hamedah, reluctantly reversed herself and denied Hamedah's motion to decrease her sentence "with profound regret and sincere apology to the Defendant, Hasan." Congress also recently passed the Fair Sentencing Act of 2010, which narrowed the sentencing disparity from 100:1 to 18:1. Even with these recent improvements in the law, however, Hamedah remains ineligible for any sentence reductions.
In the end, Hamedah's sentence — which two different sentencing judges have denounced as unfair, and which would not have been issued to a defendant in Hamedah's shoes today — cannot be corrected through the courts. Only the President, through the power of commutation, can stop Hamedah's harsh sentence from running its long course. Doing so would represent an important step in ending the indefensible crack-powder disparity, restoring fairness to federal sentencing law and reviving the commutation process to its noble and necessary function.
IN HER OWN WORDS...
> Read Hamedah's letter to President Obama
> Read about Hamedah's vision for life outside of prison
> Learn about the organization, "Family Village," that Hamedah plans to lead when she is free
> Hamedah tells her story for The Women's Media Center and the publication Alternet
> Judge Kopf calls for presidential commutation in 2001 in a memorandum and order
> Judge Kopf again calls for presidential commutation in a 2002 sentencing transcript
> Judge Smith Camp decries the harsh and unfair sentence in a 2009 sentencing transcript
> Judge Smith Camp is forced to vacate a previous ruling in 2009, which would have freed Hamedah
SUPPORT FOR HAMEDAH...
> Hon. Richard G. Kopf — Hamedah's sentencing judge calls for the President to commute her sentence
> Kasaundra Lomax — Hamedah's oldest daughter calls on the President to bring her mother home (February 2010)
> Kamyra Hasan — Hamedah's youngest daughter calls on the President to bring her mother home (February 2010)
> Ayesha Murray — Hamedah's middle daughter calls on the President to bring her mother home (February 2010)
> Kasaundra Lomax — Hamedah's oldest daughter asks the court for mercy more than a decade ago (December 1998)
> Members of Hamedah's community call on the President to bring her home (February 2010)
> Ayesha Murray — Hamedah's middle daughter asks the court for mercy more than a decade ago
> ACLU — Hamedah's attorneys petition the President for commutation of her sentence
> Melissa Mummert — Religious minister and documentary filmmaker calls for the commutation of Hamedah's sentence (2003)
> Salah Habib, Prison Chaplain at Victorville federal correctional facility
> Mike Pannek, Director of Geiger federal correctional facility in Spokane, Washington
> Frank Shaffer, System Administrator UNICOR Federal Prison Industries at Dublin federal correctional facility
> Tina Stocking, Unit Coordinator of Dublin federal correctional facility
> Reverend Ronald Richter, Religious Services Supervisor, Dublin federal correctional facility
> Ray Garcia, Case Manager at Geiger federal correctional facility
> Ruby Habeebullah, Visiting Volunteer Coordinator at Dublin federal correctional facility
> Mickey Manning, friend
> Linda Switzer, friend
> Tera Harris, friend
> Tamara Jones, friend
> Saabirah Rasul, Volunteer at Dublin federal correctional facility
> Donna Willmot, friend
> Lynne Meredith, friend
> Sherry Davis, friend
> Michael Fesser, friend
> Emma Gonzalez, friend
> Wynde Grey, friend
> Rasheed Shabazz, Prison Chaplain at Dublin federal correctional facility
> Sybil McMurry, friend