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Nov. 23, 2004 - (US Web)

Bench Pressed

When The Judge's Hands Are Tied

By Emily Bazelon

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Blakely News Archive

Weldon Angelos is one unlucky rap producer.

In May and June 2002, the founder of Extravagant Records, which counts Snoop Dogg among its clients, twice sold $350 worth of pot to a Utah police informant. The first time Angelos carried a pistol in the center console of his car; the second time he had one in an ankle holster. When the police searched his apartment more than a year later, they found three handguns. Angelos wasn't accused of hurting or threatening anyone. He has no criminal record. But after he turned down a plea bargain that would have locked him up for 15 years, the irked federal prosecutors in Salt Lake City piled on three counts under the federal statute that penalizes drug dealers for carrying weapons. One count would have gotten Angelos five extra years in prison. Three of them got him 55. All told, Angelos faced a possible 61 years behind bars once the jury convicted him. He is 24 years old.

Paul Cassell, the presiding judge in Angelos' case, is a Bush II appointee and an unlikely angel of mercy. As a law professor at the University of Utah, he crusaded to eliminate the Miranda warnings (even though the cops weren't complaining about giving them) and went on television to defend the Texas courts when they rejected the appeal of a man who was sentenced to death after his lawyer slept during his trial. But even Cassell balked at sentencing nonviolent, first-time-offender Angelos to a virtual life sentence. He polled the jurors, who recommended an average sentence of 18 years. He then compiled a list of federal sentences for serious violent crimes and came up with numbers -- like 24 years for an airplane hijacker, 19 years for a bomb-detonating terrorist, and 15 years for a three-time child rapist. Despite all his misgivings, however, last week Cassell bowed to the law and sentenced Weldon Angelos to 55 years and a day.

"The court believes that to sentence Mr. Angelos to prison for the rest of his life is unjust, cruel, and even irrational," the judge wrote. "The court reluctantly concludes that it has no choice." In that grim sentiment, and Weldon Angelos' grim future, lay hundreds of thousands of wasted years and damaged lives. The federal courts are supposed to be a beacon of enlightenment for the far more burdened state system. Instead, thanks in large part to mandatory minimum sentencing, they've become a beacon of harshness. Lawmakers vote in droves for the automatic penalties because they make it easy to look tough on crime. But the sentences have become anathema to federal judges across the ideological spectrum. Despite the outcome of Angelos' case, the judiciary is ready to revolt. And this year, judges may finally give themselves the legal weapon they've been waiting for.

Congress fell in love with mandatory minimums -- laws requiring anyone convicted of a given offense to receive a minimum penalty proscribed by legislation -- during the drug epidemic of the 1980s. The punishments began as a way to declare war on dealers who sold crack or sold to minors, but they quickly became a way to declare war on just about anyone. By 1991, there were more than 100 separate mandatory-minimum penalties floating around the federal code. Thanks to those punishments, and the federal sentencing guidelines, since the late 1980s, the number of federal prisoners has more than quadrupled, and their average time served has doubled.

It's not the rising tide that bothers judges like Cassell, however. It's their utter lack of power to do anything for the exceptional defendants who move them. In August 2003, Supreme Court Justice Anthony Kennedy, another notorious unsoftie, railed against mandatory minimums in a speech to the American Bar Association. Kennedy pointed out that the United States' rate of incarceration is one in 143 people, compared to one in 1,000 in England, France, Germany, and Italy. He said that one in 10 African-American men in their mid- to late 20s are behind bars. And he noted that the cost of housing the prison population is more than $40 billion a year. But what really burned Kennedy was the way in which mandatory minimums shift critical decision-making power from judges to prosecutors. "A transfer of sentencing discretion from a judge to an assistant U.S. attorney, often not much older than the defendant, is misguided," the justice sniffed.

Taking discretion away from judges was supposed to make sentencing more uniform, and thus fairer, but that hasn't been the case for mandatory minimums. The U.S. Sentencing Commission, which monitors federal sentencing, found in 2000 that only 10 percent to 30 percent of drug offenders who carried or used a gun were penalized for doing so. Prosecutors charged the extra count only when it suited them. To them, mandatory minimums are the ace in the hole of plea bargaining. A defendant knows that if he turns down a plea offer, the prosecutor can add on charges that will put him away for a long, long time -- never mind what the judge thinks.

While Kennedy's opposition to mandatory minimums is the consensus view among judges, the judiciary hasn't yet figured out how to get rid of the penalties. The Supreme Court has repeatedly rejected the obvious constitutional arguments against mandatory minimums -- that they constitute cruel and unusual punishment or impose penalties that are disproportional to the crimes they are punishing. In Angelos' case, Judge Cassell said that he had to impose the 61-year sentence so long as there was a plausible basis for Congress to so instruct. Since Congress could have designed the punishment to deter drug dealers from carrying guns, the judge reasoned, he had to follow those legislative orders, however ham-fisted.

How to fix this? The solution may lie with Blakely v. Washington, last year's Supreme Court ruling, which threw courts across the country into turmoil this summer. In Blakely, the justices held the Washington state sentencing guidelines violated the Sixth Amendment -- which guarantees the right to trial by jury -- by increasing punishments based on facts found by a judge rather than jurors. The logic of Blakely suggested that the federal guidelines would be the next to go, and that question is now before the high court in a pair of cases that were argued in October. Two years ago, the Supreme Court rejected a Sixth Amendment challenge to federal mandatory minimums 5-4 in the case United States v. Harris. But if the justices throw over the federal guidelines, as some seem eager to do, the legal landscape would be altered, and mandatory minimums would be fair game again. And it would take only one switched vote to overturn Harris.

If the Supreme Court were to throw out mandatory minimums, the battle over sentencing between the courts and Congress would really be joined. Should federal judges go back to meting out individualized punishments? Can Congress come up with something better? That's a debate worth having. But in the meantime, it all offers small comfort to Weldon Angelos.

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