Why 86 years in prison?

Published: September 27, 2010
The writer is a Lahore-based lawyer, a member of the New York bar and a graduate of Columbia University Law School

The writer is a Lahore-based lawyer, a member of the New York bar and a graduate of Columbia University Law School rana.sajjad@tribune.com.pk

The 86-year sentence for Dr Aafia Siddiqui has shocked and angered a lot of Pakistanis. The whole case and its hearing are being seen by many in this part of the world as a sham with the sole objective of disgracing Pakistan and Islam. Although there can be a long discussion about the political and religious aspects of this decision, it is important to understand some legal issues that raise serious questions about the fairness and impartiality of the sentencing process in particular.

The only issue on which the judge disagreed with the jury was whether the crimes for which Dr Aafia had been convicted were premeditated. The jurors were not convinced that they were, while the judge was absolutely certain that they were in fact premeditated.

In terms of sentencing, the most noteworthy aspect was the fact that the judge applied all the enhancements that he possibly could. As a general rule, the term of the sentence should be proportionate to the seriousness of the offence. In Dr Aafia’s case, the judge augmented her sentence on the basis of various grounds.  Firstly, he was of the view that the offences were hate crimes, the convict being motivated by her hatred for America. Another consideration in enhancing the sentence was the charge that she had attacked US government officials. Interestingly, Dr Aafia’s “lying” on the witness stand was also one of the grounds for enhancement since the judge held that she had obstructed the course of justice by lying. Does this mean that a statement made by a defendant could be considered a lie just because it is not believed to be true by the judge? Such a rule could deter a lot of defendants from making any statements in their defence out of fear of causing obstruction of justice.

As much as these enhancements seem extraordinary, they pale in comparison to the aptly described ‘ceiling shattering’ terrorism enhancement. By characterising the offences as terrorism, the judge elevated Dr Aafia’s criminal history and offence-level category to a much higher level. Unfortunately, it appears that while applying this enhancement, due process of law was also not followed. This is because earlier the judge had refused to admit the evidence presented by the prosecution to prove Dr Aafia’s intent to carry out terrorist attacks in the US. How ironic and contradictory is it then that the same judge enhanced Aafia’s sentence on the basis of a charge for which evidence was not even admitted?

Furthermore, the judge observed that the need for extended incarceration was there especially in view of the fear of the convict’s potential for recidivism, as in if released it was thought likely that she would relapse into crime. Again, it is extraordinary that someone who does not have a criminal history could be declared to have a tendency to recidivate.

In terms of sentencing, another unusual step taken by the judge was distribution of certain documents to the audience that contained different interpretations of the relevant US law on sentencing guidelines. Congress passed the Sentencing Reform Act in 1984 laying down mandatory sentencing guidelines for federal judges. One of the objectives of this law was to abolish indeterminate sentencing at the federal level. It also authorised the appellate review of sentences. However, on January 12, 2005, the US Supreme Court while interpreting the sixth amendment right to jury trial held that the federal sentencing guidelines were not mandatory but merely advisory in nature. Through this judgment, it also struck down the provision that permitted appellate review of any departures from these guidelines allowing judges to freely exercise their discretion while sentencing.

It appears that in Aafia’s case, the discretion exercised by the judge in sentencing Aafia undermined the objectives of US lawmakers to have uniformity, predictability and transparency in the criminal justice process in America.

Published in The Express Tribune, September 28th, 2010.

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Reader Comments (4)

  • ondelette
    Sep 28, 2010 - 12:08AM

    Another comment on the sentencing and the enhancements. Many of the judge’s conclusions are due to the “facts” which informed his opinions about Ms. Siddiqui, facts which he gained at her competency hearing, to which the jury had no access. In particular, the jury was excluded from any information about her whereabouts from 2003-2008, and possible reasons for her mental state dependent upon those whereabouts were ordered stricken from the record when they showed up. That was based on psychiatrists reports during the competency hearings, those psychiatrists had access to FBI interrogators’ reports of interrogation from Craig Field Hospital for each day between when she arrived after she was shot to when she was rendered to New York (she was Mirandized at New York). She was on morphine sedation the entire time, under 24/7 lighting and surveillance, and 4 point restraints. She was also being denied information as to the conditions of her children, whom she believed were under the control of U.S. authorities. It was on that basis that Judge Berman decided she was lying about torture and about any of the other aspects of that period, because the government’s psychiatrist testified so, and entered a judgment of “malingering”. So many of the “enhancements” were in fact based on information taken under conditions that amounted to CID treatment if not torture, when she had not been given due process or consular access.Recommend

  • tat
    Sep 29, 2010 - 12:10AM

    Nothing have been proved of her links with terrorist organizations, even not her alleged marriage is proved, and is now being said that it was revealed after 183 times of water shots to Khalid shaikh who after so much tour chore say those thin…gs and even the court refused it… now regarding the other case well what do u expect from a women who had been raped or torchured continuously for years to react to the US army… by through flowers on them????
    and what image are u talking about the image is destroyed by the rulers who just for the sake of money sold people… if they had something they should have tried them here in Pakistan…Recommend

  • SUB
    Sep 29, 2010 - 11:33AM

    Now thats some thing closer to logic rather then chanting slogans on the streets that “Qoum ki Beti ko Riha Kia Jai”Recommend

  • sam
    Sep 30, 2010 - 2:02AM

    I am still astonished by US evil system. yet, they talk about peace, justice and equal rights. If you are going to trial someone at least trial them fairly. Sad, but they just make us aware where this world is going. Rich suppressing poor, any one can be called anything, if you are accused of doing something and you have prove not to have done it, you will be charged with false allegation whether you agree or not, even without a prove.Recommend

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