Saturday, April 27, 2013

The Only Thing We Have to Fear

I did not write about the government's announcement (and why, by the way, did they announce it?) that it intended to question Dzhokhar Tsarnaev without first informing him of his Miranda rights. I didn't write about how the so-called "public-safety" exception made up by the Supremes in New York v. Quarles was, at the time it was invented, intended to be narrow and limited.  Nor did I write about how it happened (and somewhat oddly, I should perhaps add) that when he was given Miranda warnings he took them seriously and decided to shut up.

I didn't write about turning greater Boston into a police state, ordering the populace to stay home (except for the part of the populace that operates Dunkin Donuts), conducting door-to-door suspicionless warrantless searches which at least sometimes seem to have involved forcing the homeowners out of their homes and holding them at gunpoint.

I haven't written about Lindsey Graham and John McCain and Rudy Giuliani and all the whack jobs who haunt Fox news (brilliantly eviscerated by Jon Stewart here) are convinced it's time to take a red pencil to the Bill of Rights, saving only the Second Amendment and the part of the First that calls for the Free Exercise of Christianity (and maybe of Judaism in Israel) but prohibits all other religions.

For that, you can read Bennett and Horowitz and Greenfield and Gideon and Kennedy and . . . .  Enough.

Look, the bombing at the Boston marathon and all that followed scared folks shitless.  Scared them more, in many respects, than did the planes on 9/11.  But they're of a piece.  And when we get scared - that's when we name laws after children or lock people up at Gitmo (including the ones we agree don't need to be there, don't need to be locked up at all, but who we're still keeping imprisoned there for years, proably forever).  

Ahmed Ressam, the "Millennium Bomber," was part of a terrorist cell operating out of Canada.  He was arrested by customs inspectors  when he tried to drive a car carrying explosives from Canada to the U.S.  His intention was to blow up Los Angeles International Airport as the millennium turned.  He turned down a plea offer that would have had him in prison for 25 years, went to trial, and was convicted by a jury of nine counts.  

Ressam asked for a prison sentence of 12 1/2 years.  The government asked that he be locked up for 35.  The judge gave him 22. Appeal, much folderol, back for resentencing.  This time the government asked for 45 years.  Again the judge gave him 22.  Appeal, much folderol, the 9th Circuit told the judge it wasn't nearly enough time.

Back for a third sentence.  Probation services says that Ressam's Guideline sentence falls anywhere between 65 years and life.  (The judge's caclulation puts the Guideline range between 42 and 44 years.) The government this time asked for life.  The judge, and it's been the same judge every time, gave him 37 years to be followed by 5 years of supervised release.

Yawn.  I mean, really, who gives a shit about this stuff, Gamso?

You can, if you're inclined, read the 18 page Sentencing Order here.  If you do federal criminal defense, you probably want to.  (Hell, if you do a lot of it, you probably already have.) 

Yawn, yawn.  Have you got a point?  Are you ever going to get there?

See, the judge (he's the Honorable John C. Coughenour, by the way, appointed to the bench by Ronald Reagan) thought some preliminary remarks were in order.  So he blathered a bit about his gratitude to the 9th Circuit for setting him straight by twice reversing Ressam's sentence. And he talked about the heavy burden of figuring out what the right sentence is in a case and how he's been wrong and how "mistakes have left scars."

Yawn. Yawn.  Yawn.  Please, Gamso, get on with it.

OK, here it is.  The judge then wrote this paragraph (emphasis mine).
This case provokes our greatest fears. In the late 1990s, Mr. Ressam plotted a terrorist
attack against the United States with the potential to kill and injure a large number of people. Because Mr. Ressam planned this act of violence and took steps to carry it out, many, including the federal government, believe that Mr. Ressam is a continuing threat and he should never see freedom again. But fear is not, nor has it ever been, the guide for a federal sentencing judge. It is a foul ingredient for the sentencing calculus.
I want to be very clear about this.  There's nothing generous in the sentence.  Judge Coughenour shows no spectacular courage in imposing a sentence 2 years longer than the one the government originally asked him to impose (although considerably shorter than what the government now wanted).

But if the sentence is no bonus, the warning is.  For judges imposing sentence (or deciding whether to expand the public-safety exception to cover all information the cops would like to know), for legislators looking for more ways to write laws so that the protections of the Bill of Rights will only be available to those who have no need for or interest in them, and for all of us inclined to buckle with fear and say "how far" when some government worker says to strip and bend over and pull apart the cheeks.

In 1933, in his first inaugural address, FDR said

Of course, he forgot it when he thought it would be a good idea to act upon "fear itself" when he ordered Japanese-Americans into concentration camps.
Thing is, he was right at the inaugural. He should have been paying attention.

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