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Back to list of Dissenting Opinions of Judges

February 25, 2005 - The Orange County Register (CA)

Commentary: Our Absurd Drug War And The Judge Who Just Said No

By Paul Campos, University Of Colorado Law Professor & Scripps Howard Columnist

In 1988, Brent J. Brents raped a 6-year-old boy, by luring him into a secluded spot with a tale about a lost cat. Eight days later, Brents raped a 9-year-old girl at knifepoint, while threatening to kill her if she cried out.

Brents, who already had a long criminal record, was sent to prison, where he served 15 years of a 20-year term. Last summer, state sentencing laws required him to be released, even though he had dropped out of a sex-offender rehabilitation program.

Now he is accused of molesting an 8-year-old boy, and raping two grade-school girls and their grandmother, as well as three other adult women.

In the summer of 2002, Weldon Angelos, a 23-year-old with no criminal record, sold $350 worth of marijuana on three occasions to a man who turned out to be a police informant.

At one of the sales, Angelos had a gun strapped to his ankle. At the others, he had one hidden in his car. (Angelos never brandished the gun, nor did he engage in any other violent behavior.)

Last November, in an extraordinary 67-page opinion, U.S. District Judge Paul Cassell sentenced Angelos to 55 years in federal prison, without the possibility of parole.

The opinion was extraordinary in that it called upon President Bush to use his powers of executive clemency to reduce what Cassell considered a barbaric sentence ­ a sentence that our so-called federal sentencing "guidelines" (somewhere, George Orwell is laughing grimly) required Cassell to impose.

Cassell's opinion, which is well worth reading in its entirety, is both anguished and courageous. The judge is clearly revolted by what he believes the law requires him to do, and he searches for some constitutional argument that would allow him to strike down a law that is sending a 25-year-old nonviolent offender with no criminal record to prison for what may well be the rest of his life.

That he is unable to find it is a tribute to Cassell's intellectual integrity, whether one agrees with his legal conclusions or not.

Cassell is no bleeding-heart liberal. I remember the talk he gave at the University of Colorado law school more than a decade ago, when he was on the market for a legal academic job: it was a frontal assault on the Miranda warning that offended enough of the faculty to preclude him from getting a job offer, despite his obvious talent.

When he was appointed to the federal bench two years ago, Cassell's conservative credentials were considered impeccable. But even the hardest-headed conservative can be horrified by the sheer insanity of the war on drugs.

In sentencing Angelos, Cassell pointed out that he would have gotten a far lighter sentence if he had been a terrorist who detonated a bomb, or if he had been convicted of second-degree murder, or if he had raped a child.

Even in a nation that has found room to put 2 million of its citizens behind bars, there is only so much space in our prisons. Brents didn't serve all of his original sentence, in part, because there simply wasn't enough room to lock up everyone who our system says ought to be kept off the street.

It's difficult to express enough outrage at the idea that we release serial child rapists so that non-violent sellers of a largely harmless drug can be locked up for 55 years.

Cassell, to his credit, has stayed loyal to the principle that legislatures, not judges, should make the laws.

But it's yet more to his credit that he doesn't hide his disgust at the inhuman absurdity of some of those laws, even as he fulfills his oath to carry them out.

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