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November 17, 2004

Judge Cassell's continuing contributions

Utah District Judge Paul Cassell probably had already secured a place in my Sentencing Judge's Hall of Fame even before this week.  But his work just yesterday alone highlights his versatility as the sentencing plate. 

In addition to issuing his thoughtful and compelling opinion about mandatory minimums in Angelos (basics here, commentary forthcoming), yesterday Judge Cassell also issued an extended and very thoughtful opinion about Blakely's applicability to restitution awards in US v. Visinaiz, No. 2:03-CR-00701 (D. Utah Nov. 16, 2004).   I will need some time to consume and analyze this opinion fully, but here's the essentials of Visinaiz (which can be downloaded below):

The court next concludes that the Sixth Amendment right to a jury trial, as expansively interpreted in Blakely, does not extend to restitution awards. Two separate justifications support this conclusion. First, restitution is not a penalty and therefore is simply not covered by the Sixth Amendment. Second, as a matter of historical practice dating to well before the drafting of the Constitution, restitution has traditionally been determined by the judge, not the jury. In light of this history, the Sixth Amendment should not be read as creating a need for jury fact-finding on restitution issues.

Download cassells_visinaiz_restitution.rtf

November 17, 2004 at 08:57 PM | Permalink

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Listed below are links to weblogs that reference Judge Cassell's continuing contributions:

» Judge Condemns Minimum Mandatory Sentence and Addresses Restitution Issues from ACSBlog: The Blog of the American Constitution Society
Federal Judge Paul Cassell, who has offered some of the most compelling opinions on the Federal Sentencing Guidelines post-Blakely, issued two opinions in two days that may have a profound impact on the Guidelines. On Monday, Cassell reluctantly senten... [Read More]

Tracked on Nov 18, 2004 9:08:32 AM

» Judge Condemns Minimum Mandatory Sentence and Addresses Restitution Issues from ACSBlog: The Blog of the American Constitution Society
Federal Judge Paul Cassell, who has offered some of the most compelling opinions on the Federal Sentencing Guidelines post-Blakely, issued two opinions in two days that may have a profound impact on the Guidelines. On Monday, Cassell reluctantly senten... [Read More]

Tracked on Nov 18, 2004 9:10:05 AM

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