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June 30, 2004

Judge Cassell declares USSG unconstitutional

I previously noted that law professors like to get the first word on important cases, and apparently that maxim holds even when they become judges. U.S. District Judge Paul Cassell of the District of Utah, who did interesting and provocative work as a law professor before he started doing interesting and provocative work as a judge, became (to my knowledge) the first federal judge to officially decalre the federal sentencing guidelines unconstitutional after Blakely. Here is a link to Judge Cassell's opinion in US v. Croxford, as well as a link to an article discussing Judge Cassell's ruling.

Update: I've just now had the chance to read Croxford and it is almost as breathtaking as Blakely itself. A must read for all Blakely followers today!

June 30, 2004 at 08:09 AM | Permalink


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» Sentencing Guidelines held unconstitutional by another judge: from The Volokh Conspiracy

The judge this time is Paul Cassell, one of the leading conservative criminal procedure professors who was appointed to federal district court a couple of years ago. [Read More]

Tracked on Jun 30, 2004 1:52:45 PM

» interesting decision from The Cordovan Cinderblock
many of my readers won't have been following this story, but the supreme court just ruled (in blakeley v. washington) that the sentencing guidelines in the state of washington violate the sixth amendment (right to a trial by jury) in... [Read More]

Tracked on Jun 30, 2004 10:14:07 PM


I understand that the fed crim code doesn't provide for a jury and that might be a reason not to empanel one. But why would Judge Cassell decide the facts by applying a preponderance standard, instead of proof beyond a reasonable doubt? (See p. 29 of opn.) Blakely and Apprendi seem to require application of the higher standard, and even in a court trial the higher standard applies.

p.s. why does your comments area only give me options of "academic" "student" or "prosecutor"?

Posted by: Jonathan Soglin | Jun 30, 2004 11:05:16 AM

I think I've answered my own question. Once he jettisoned the guidelines, the maximum sentence that could be imposed without any fact-finding beyond the facts admitted by the plea was 20 years. Thus he was using the facts regarding grave harm and absconding to determine the sentence within the range permitted by the plea, not to raise the statutory maximum.

Posted by: Jonathan Soglin | Jun 30, 2004 11:16:43 AM

Watch out what you ask for you might get it!

If you follow Croxford out to its logical conclusion District Court's can impose the statutory maximum. Prior to the Guidelines even if a defendant was sentenced to the max he only served one-third and then was paroled. Now there is no parole. What the DJ gives your client is what he has to do. Hopefully you only represent sympathetic clients in front of empathetic judges.

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Who did interesting and provocative work as
a law professor before he started doing
interesting and provocative work as a judge

Posted by: About Health Blog | Mar 30, 2011 3:11:14 AM

I am not a Utah resident, but it seems logical that an offense alleged in a year like 2004 should be dealt with respecting law annexed in that year. A defendant at a scene is not arrested for an offense when others are, thew offense conduct shows no arrest, the pre-sentence report shows that an intention to convict is due to ex post facto issues and uses after the fact conduct to achieve a sentence of 235 months on a first time offender who broke no law as referred to in the indictment's offense conduct of 2004. what need is any guideline when PSR writers can oppose the constitution?

Posted by: mckesson | Apr 18, 2011 1:55:54 PM

this deals with the withholding of exculpatory evidence by the prosecution and a defense attorney who refuses to file a motion with the court for the requested report by the defendant, for the purpose of making a decision as to wheteh to plea or not, the defendant is indigent which should have noe bearing because a client is a client, the defendant gets no investigator and is coerced by hi attorney to disregard the 5th amendment. In recent events the ABA and the Supreme court ruled on the professional ethics of prosecutors against holding exculpatory and mitigating evidence can anyone see the need for action, is it possible that plea bargains be removed from federal courts since it is felt that parole is not an option, this could be a reasonable position or request for a public poll and a bill in the spirit of peace and justice for our society in accordance with the first amendment.

Posted by: mckesson | Apr 18, 2011 2:11:50 PM

Prior to the Guidelines even if a defendant was sentenced to the max he only served one-third and then was paroled.

Posted by: Robe de Cocktail Pas Cher | Dec 12, 2012 1:58:56 AM

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