November 19, 2004
Judge Cassell's remarkable, and remarkably disappointing, decision in Angelos
I have finally had a chance to give Utah US District Judge Paul Cassell's decision in the Angelos mandatory minimum case a careful read (basics here). I am glad to see that the decision has the editorial pages humming, with strong pieces in the LA Times, the Daytona-Beach News Journal, and the Salt Lake Tribune (and I will be doing this NPR radio show on the topic tonight).
I was particularly pleased to see Judge Cassell's home paper, the Salt Lake Tribune, assail Judge Cassell for having "passed the buck." For though the Angelos opinion is remarkable in many respects, the opinion is also remarkably disappointing in its fairly summary treatment of Weldon Angelos' strongest claim — namely that his sentence constituted cruel and unusual punishment under the Eighth Amendment.
Part of what makes the Angelos opinion remarkable was that Judge Cassell spends 40 pages considering whether the 55-year gun enhancement was "irrational" (which seems like a stretch in light of deterrence arguments), but then he spends less than 10 pages considering whether this enhancement is "cruel and unusual" (which seems far more plausible in light of the modern proportionality/retributivist understanding of that provision). Moreover, after explaining for 5 pages that "the three Harmelin factors ... lead to the conclusion that Mr. Angelos' sentence violates the Eighth Amendment," Judge Cassell in two pages summarily concludes that, because in Hutto v. Davis, 454 U.S. 370 (1982), the Supreme Court upheld 40-year sentence in a marijuana case, Mr. Angelos' "Eighth Amendment challenge must be rejected."
With all due respect to Judge Cassell, the truncated analysis here suggests the Judge simply got tired. Even beyond the fact that Hutto is arguably not good law after Solem and Ewing (a point which Judge Cassell notes), and even beyond the fact that the scope of the Eighth Amendment "is not static [and] must draw its meaning from the evolving standards of decency that mark the progress of a maturing society," Trop v. Dulles, 356 U.S. at 101, the holding and facts in Hutto are readily distinguished. As a matter of context, the Hutto ruling (as well as Harmelin and Ewing) is influenced by principles of federalism not implicated in the review of a federal criminal sentence. And, even more tangibly, the defendant Davis in the Hutto case "previously had been convicted of selling LSD, and the two offenses for which Davis had just been found guilty were committed while on bail pending appeal from the previous conviction for selling LSD." Thus, in Hutto the court considered a true repeat offender, which readily distinguishes that case from the case before Judge Cassell.
November 19, 2004 at 02:56 PM | Permalink
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Now wait a minute. As a matter of policy, the result in Angelos is wretched. Furthermore, you are correct that there were federalism issues swirling about in Ewing, etc. However, it is difficult to blithely ignore the sentence in Hutto and Harmelin. The recidivist nature of Hutto is relevant but it does not make the case go away. Furthermore, Angelos was a marijuana case with a gun. That matters. Finally, I do not believe that Harmelin was a recidivist case. There was more cocaine there but no gun. Sure, Judge Cassell could distinguish these cases (perhaps they were even decided on a different day of the week in a different time zone) but he would not be true to their intent. Many people (including me) believe that the Eighth Amendment does evolve, as you noted from Trop, but do we really want District Court Judges throwing over comparatively recent Supreme Court precedent on this basis alone?? I think not.
I do not believe that Judge Cassell got tired. I think that he knew where the constitutional analysis was going to lead (didn't we all? Really. Be honest.). As such, he devoted his time to making the POLICY case that this was an irrational sentence that President Bush should commute and/or the Congress should fix. This may be a fool's errand but it is an honest one that respected binding Supreme Court precedent -- even if that precedent if flawed. His only other choice, as Ghandi suggested long ago, would be to have resigned his commission. I, for one, am glad he did not follow that path.
Posted by: What | Nov 19, 2004 3:16:17 PM
But Judge Cassell expressly says "the three Harmelin factors ... lead to the conclusion that Mr. Angelos' sentence violates the Eighth Amendment." Ergo, it seems that, applying Harmelin (a decision that post-dates Hutto by 9 years), Judge Cassell finds an 8th A violation. But then he says he must disregard that conclusion because of the force of Hutto. That seems curious, since the decision is 22 years old --- hardly a "comparatively recent Supreme Court precedent" --- AND a decision cut back by Solem and Harmelin even perhaps Ewing.
Moreover, a careful review of Hutto makes clear that the case was mostly about the 4th Circuit's failure to follow Rummel after a remand: "Because the Court of Appeals failed to heed our decision in Rummel, we now reverse... [because] a precedent of this Court must be followed by the lower federal courts no matter how misguided the judges of those courts may think it to be."
Further still, note that Hutto involved a defendant sentenced BY A JURY to 40 years based on evidence he "that respondent had knowingly sold drugs to be smuggled into prison, had sold drugs to an inmate's wife who was alone with an infant child, and had himself been imprisoned in the past." Given that we say the 8th A is to be informed by the views of juries, the fact that the defendant in Hutto was sentence by a jury to 40 year, while the jury in Angelos on average wanted 18 years, also seems quite significant in the 8th A analysis.
My point is simply that, after Judge Cassell expressly states that Harmelin supports Angelos' claim, I need a bit more explnation for why a factually distinguishable precedent from 9 years early should disrupt that conclusion. Add also the fact that the 55-year sentence which Angelos is contesting is not the marijuana conviction, but rather the 924 gun parts (a point Judge Cassell stresses at pp. 54-55), and I think citing Hutto to summarily dismiss the 8th A challenge is not convincing (at least to me).
Posted by: Doug B. | Nov 19, 2004 5:18:30 PM
So then you are actually making a more cutting criticism. He did not get tired. In your view Prof., he got scared and lacked the moral courage to do what he himself thinks it right. If so, shouldn't you remove him from your Hall of Fame?
Posted by: what | Nov 19, 2004 7:29:03 PM
Even Babe Ruth grounded out sometimes. ;-)
Posted by: Doug B. | Nov 19, 2004 9:16:31 PM
But let's look at this, instead, from a slightly more political perspective. Here's a judge nominated by conservatives concerned with "judicial activism" who presides in the home state of the former chair of the judiciary committee whose most notable contribution while on the bench was to be the first judge to declare the guidelines unconstitutional in their entirety--not exactly the paradigm of a non-judicial activist. (What is the negative of judicial activist? judicial pacifist?)
Judge Cassell's opinion in Angelos seems to fit within that non-activist mindset -- it sounds exactly like what my Federalist Society friends in law school would say: (1) Limited view of judicially created constitutional rights (with a distain for "evolving standards" language) (2) Extreme deference to stare decisis (it's still good law until someone REALLY says it's not) (3) Respect for federalism and separation of powers (4) "Law-based" rulings, regardless of "unjust" outcomes. Thus, the opinion is much more in line with what you'd expect from an "FS-brand" of judge--even if you don't like the result, if precedent demands (or highly suggests) it, and another branch of government can correct it, then it's not your responsibility to change the law to correct it.
I'm not suggesting that Judge Cassell wrote this opinion to get favor back from those who appointed him--it appears from what little I know of the man that he is a fantastic, independent jurist; what I am suggesting is that such an opinion seems more politically aligned with the modern "conservative" views (and thus perhaps more aligned with the Judge's "judicial philosophy" or "fundamental principles"?).
And with this hands-off approach that many jurists (and tons of politicos) approve of, the Eighth Amendment portion of the opinion is not the result of a "tired" jurist or a thin analysis but rather a recognition of such a "hands off" jurisprudence. After, all, as a district court judge, he may not want to be "Making Love Out of Nothing At All."
Posted by: District Clerk Battling Blakely | Nov 22, 2004 5:26:43 PM
Posted by: | Oct 14, 2008 6:24:27 AM