Mimesis Law
29 March 2017

John Coughenour, Ahmed Ressam and Gut Feeling Guidelines

Feb. 26, 2016 (Mimesis Law) — A very fascinating (and very long) article at the Atlantic profiles John Coughenour, a Harley-riding, prison-visiting U.S. District Court judge from the Western District of Washington who has no love for the federal sentencing guidelines. The article frames the debate over the efficacy of the guidelines in a colorful way:

Once on the fringe, Coughenour’s argument against sentencing guidelines is now gaining traction. At the heart of the debate is an undecided question: Which is scarier—a world where a person’s actions are treated as part of a mathematical equation blind to context, or a world where political appointees decide people’s fates based on gut feelings?

That paints the issue in a way that’s funny and mostly accurate, but it misses the fact that the mathematical equation, blind to context, is also the product of politics and gut feelings. The guidelines, after all, are created by the United States Sentencing Commission, an agency of the federal judicial branch, consisting of people appointed by the president and at least three of whom have to be federal judges, the exact same political appointees whose gut-feeling decisions are supposed to scare us.

The guidelines may be rigid and mechanical in their application, but they’re every bit as feeling-based in their creation as the decisions of a judge at sentencing who is considering the case at hand. The various departures may apply mathematically, but which departures exist and the relative weight given to each are the choices of human beings who are just as capable of making mistakes or being driven by passion rather than reason as the judges who have to apply them. The same is true of everything judges have to take into account in fashioning a correct guideline sentence, from the base offense levels assigned to crimes to the criminal history categories.

The guidelines aren’t the product of scientific experiments with a high degree of accuracy and objectivity. Sure, the commission might do its best to base the guidelines on quantifiable data, but a lot of that data comes from the justice system. There’s something a little disingenuous about crafting guidelines based in part on the decisions of judges and then acting like those guidelines are somehow less arbitrary than the decisions on which they’re based.

They may reduce disparity, but consistent sentencing isn’t always just sentencing. A perfect sentence arguably doesn’t even exist. It isn’t like the commission applied the scientific method to criminal sentencing and magically discovered the universal truth that the base offense level for an illegal reentry case had to be eight, a 61-day prior sentence had to count for two points and put a person in category two, and that a sentence between four and ten months for that person with that offense is indisputably the correct one.

Sentencing isn’t science. The guidelines aren’t either. They’re the product of several smart people doing their best to make their subjective choices appear as objective as possible so everyone else can then go along with what they’ve created while falsely comforted by the idea that its basis is far more empirical than it really is.

Dubious genesis of the guidelines aside, Coughenour is concerned that they aren’t even doing what they’re supposed to do:

Coughenour’s position is clear. He believes that the standardization of sentences has resulted in less justice, not more, and that the way the nation sentences criminals today has created greater inequality, not less. Underhill agrees. “The tragedy of mass incarceration,” he writes, “has recently focused much attention on the need to reform … the federal-sentencing guidelines, which often direct judges to impose excessive sentences.” Underhill also thinks prisoners deserve a “second-look review”—“a mechanism for judges to re-evaluate the sentences they’ve imposed.” For his part, Coughenour would dismantle standardized criminal sentencing entirely. “But,” he adds meaningfully, “you’ve got to trust the person making the decision.”

What’s perhaps the most fascinating part of the article is its focus a particular case where Coughenour disregarded the guidelines in the case of a defendant who probably doesn’t come off as sympathetic to many:

In 1999, 32-year-old Ahmed Ressam had planned to detonate a massive car bomb at Los Angeles International Airport on New Year’s Eve. Had he succeeded, it would likely have been the deadliest bombing in U.S. history. Fortunately, Ressam was caught a thousand miles from his goal. He was tried and convicted in federal court. The jury returned its guilty verdict in April 2001—and that’s when the fight over Ressam’s fate really began.

As the article explains, Ressam’s sentence should have been 65 years to life pursuant to the guidelines, but he cooperated extensively with the government after being convicted. It was enough for the government to ask for 35 years and for Coughenour to give him only 22. Coughenour caught some serious heat for that, though:

Immediately afterward, a furor erupted in the national media and among those who question Coughenour’s overall approach to punishment. Fox News’ Michelle Malkin dubbed Coughenour the “terrorists’ little helper,” arguing that he represented everything that was wrong with judge-centered sentencing. Critics slammed Coughenour, saying his sympathy for the defendant had trumped national safety. After 22 years, they reasoned, Ressam would be middle-aged when he got out, fully capable of staging another attack.

Those sorts of sentiments represent much of what’s wrong with this country’s approach to criminal justice. Coughenour was not the terrorists’ little helper in any sense. He more likely would have been had he not shown mercy on someone who helped fight terrorists. Painting mercy as weakness is bad enough, but painting it as condoning or even furthering the awful acts of one recipient and others like him is either a deceitful smear intended to prey on public ignorance and stupidity or concrete evidence of Malkin’s inability to appreciate even the most obvious nuances of a situation.

Saying Coughenour’s sympathy trumped national safety is similarly detached from reality, as cooperators like Ressam aren’t exactly going to be received with open arms when they show up to help plan another terrorist attack. It’s probably safe to say Ressam’s career as a terrorist would be over even if he was released today.

When the sentence was overturned on procedural grounds and the government decided to seek a life sentence, Coughenour again gave Ressam 22 years. That also didn’t go over well at all:

The Ninth Circuit disagreed. In a scathing 72-page opinion, a panel of judges concluded that Coughenour had “abused his discretion” by flouting the guidelines. And so, on October 24, 2012, almost 11 years since Ressam first appeared before Coughenour (and nearly 13 years since his arrest), the judge was ready to give Ressam his third and final sentence. He looked at all the lawyers and journalists packed into his Seattle courtroom. Would he go along with the government’s request for a life sentence? Or would he again thumb his nose at the system?

Coughenour budged, but not as much as authorities would’ve preferred:

Nearly 11 years since Coughenour first met Ressam, the judge was ready to hand down his third and final sentence. On October 24, 2012, he addressed his Seattle courtroom: “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.” Coughenour then documented the extent of Ressam’s cooperation and the ever-increasing demands of the prosecutors. In the dense legalese of the decision’s core, Coughenour pushed back against the government’s arguments for life in prison, announcing that 37 years was sufficient to punish Ressam and to fulfill the needs of justice. It wasn’t what the government was hoping for, but it was stiff. This time, the sentence would stand.

Coughenour’s sentencing comments couldn’t be more apt. Our prisons are filled to the brim largely because of fear, and we only pretend it’s something else causing it. Even the most ardent drug warriors will eventually concede that it’s more a fear of the things drug use leads to than the inherent awfulness of using drugs that justifies prohibition. The same is true of DUI and countless other state and federal offenses, and it’s fear that often drives release conditions as well, though the euphemism there involves the need to reasonably assure the safety of others. It’s all just fear.

And although fear won in Ressam’s case, Coughenour at least mitigated the damage. Had he kept giving Ressam 22 years in defiance of the Ninth Circuit, the case would have eventually gone to another judge, which it was initially supposed to do in Ressam’s case anyway, and things might have been much worse. Fifteen years more than Coughenour thought Ressam deserved is probably a bitter pill, but it isn’t a life sentence.

There’s a lot more to the article than just the Ressam situation, and it’s all worth reading. However, the guidelines are best understood by seeing them actually applied, and Ressam’s case makes for an ideal example of some of their flaws. Had Coughenour been on the commission, he may well have created the machinery that stuck Ressam with a range of 65 to life. Each and every one of the commission members might’ve also given Ressam 22 years had they been the sentencing judge.

Applying something as formal as the guidelines to something as fluid as human beings and their behavior is going to be imprecise, and it’s going to cause unfair results no matter how hard we try to get it right. The real question about the guidelines should be whether we want political appointees to decide the fates of the people and cases in front of them based on gut feelings, or whether we’d rather have political appointees decide the fates of the people they don’t know and will never know who committed crimes about which they know nothing and will forever know nothing based on a bunch of calculations they derived from gut feelings.

Putting it that way, it’s probably a much easier question to answer.

7 Comments on this post.

Leave a Reply

*

*

Comments for Fault Lines posts are closed here. You can leave comments for this post at the new site, faultlines.us

  • Richard G. Kopf
    26 February 2016 at 10:47 am - Reply

    Matt,

    Absolutely wonderful article, although Judge C. and I would likely agree not at all on many things. But I also note that Judge C. gave Shon Hopwood, the bank robber and guy I sentenced who became a lawyer and not just any lawyer, a great chance by hiring him as an extern. See Adam Liptak, The Robber, the Judge, and the Case for Leniency, New York Times (AUG. 26, 2013). By the way, so did the “arch-conservative” Judge Janice Rogers Brown of the D.C. Circuit when she hired Shon as one of her clerks.

    Regarding the Guidelines, here is my basic take: (1) they do a good job on the really bad dudes (and dudettes)–there are more of those than CDLs like to admit; and (2) perhaps most importantly, the Guidelines provide rough national proportionality for sentencing roughly similar defendants. Since I don’t trust judges’ sentencing instincts any more than I trust the gut of a reasonably well-educated person off the street, I continue to be Guideline-centric, albeit less so now.

    Again, thanks for a great piece. I truly enjoyed reading it. All the best.

    Rich Kopf

    • shg
      26 February 2016 at 11:28 am - Reply

      Remember back to the good old Mistretta days, the claim was that the Guidelines reflected the existing national proportionality for roughly similar defendants. And so, it wasn’t just arbitrary numbers on a grid, but some sort of rough median sentence nationwide to provide a measure for proportionality. As we learned decades later, that wasn’t exactly true (apologies to Len Bias).

      And while we gained some consistency, we lost any claim to legitimacy or rationality in sentencing by forfeiting its putative purposes to the grid god. But since the high priests of the grid told us it was legit, who are life-tenured judges to question?

      • Richard G. Kopf
        27 February 2016 at 9:29 am - Reply

        SHG,

        I keep hearing my inner Hulk at sentencing: “You won’t like me when I’m angry.” The Guidelines keep the demons down for some of us.

        For all the sympathetic federal judges like Coughenour or Gleason or Bennett or Rakoff, there are others who view sentencing as an opportunity to strike even harder blows than the Guidelines would otherwise impose. So, be careful what you ask for.

        But, as I have said, my Guideline-egocentricity is becoming less so. Probably a function of low T plus the gentle ass-chewing that my old friend Judge Mark Bennett and the merciless federal public defenders keep giving me.

        All the best.

        RGK

        • shg
          27 February 2016 at 2:33 pm - Reply

          I checked the grid closely, and still don’t see life plus cancer. How much worse could it get?

          • Homer’s Nescafe
            27 February 2016 at 3:23 pm -

            In defense of Judge Kopf and Scott you are missing the point in favor of a quick zinger:

            The Guidelines use to also act as a circuit breaker before they became “merely advisory.”

            Here is an example: United States v. Frank A. Castaldi, 743 F.3d 589, 7th Cir. 2014.
            The guy self-disclosed and cooperated with Govt. Guidelines were 10-12 years. The sentencing judge gave him the max – 20 years, which was even more than what the prosecutors asked for. Pre-Booker/Gall etc. the sentencing judge would have had to at least give notice and reasons for why to depart above the guidelines and could have been reversed on appeal. Now, he is still going to die in prison, guidelines or no guidelines.

            I think every CDL’s (and of course offender’s gripe) is that with or without the guidelines, the severity of the punishments need to be brought down across the board. Proportionality has been lost and a lot of sentences are effectively life plus cancer. We Americans love punishment and are exceptionally harsh and cruel in administering it….

            On a side note, Judge Rakoff is not as sympathetic as he comes across in his writings….

            -Homer Simpson

    • Ken Womble
      26 February 2016 at 9:26 pm - Reply

      Agreed. “They may reduce disparity, but consistent sentencing isn’t always just sentencing.” Great point.

  • I’ve Been Really Busy… | Tempe Criminal Defense
    27 May 2016 at 1:01 pm - Reply

    […] JOHN COUGHENOUR, AHMED RESSAM AND GUT FEELING GUIDELINES […]