The future of mandatory minimums?

Adam Liptak has this terrific article in today's NY Times about the upcoming sentencing of Weldon Angelos, a 25-year-old record producer, who faces 63 years in prison for a first offense of marijuana dealing primarily because of federal mandatory minimum sentences.

Sadly, the case may not be all that unusual on the facts, but it is making headlines because Utah US District Judge Paul Cassell raised questions about the constitutionality of mandatory minimum sentences in the Angelos case back in February, and he directed defense attorneys and federal prosecutors to file briefs on the issue. And, as previously detailed here, among the briefs filed on Angelos' behalf was an amicus effort by a group 29 former legal officials — including former US attorneys, federal judges, and a former US attorney general — arguing that his sentence would be unconstitutional on various ground (most specifically as a violation of the Eighth Amendment's prohibition of cruel and unusual punishments).

The Angelos case is fascinating on its own terms for many reasons, especially because Judge Cassell in his short tenure on the bench has already shown his capacity and courage to address sentencing issues in dynamic and dynamite ways. I hope Judge Cassell can and will issue a quick and powerful decision in Angelos that helps frame the future legal and policy debate over mandatory minimums (just as he framed the federal debate over Blakely through his brilliant Croxford opinion).

But as the NY Times article astutely notes, the Angelos case and the status of mandatory minimums in the federal system is even more important now both legally and politically in the wake of Blakely:

The Angelos case may provide a glimpse of the future.... The Supreme Court will decide whether to strike down the sentencing guidelines after it hears arguments in October, and some legislators are already signaling their preference for more mandatory minimums if the guidelines are deemed unconstitutional.

At a hearing in July on legislation that would increase drug sentences, Representative Howard Coble, Republican of North Carolina, said, "It seems clear that mandatory minimums may well take on added importance in assuring appropriate sentences for serious federal crimes as a result of the Supreme Court's actions."

Ronald H. Weich, a former counsel to the Senate Judiciary Committee who opposes mandatory minimums, said they had a political constituency. "There is a real danger," Mr. Weich said, "that we're heading back to mandatory minimums if guidelines are unconstitutional."

Sadly, I got the eery feeling when in DC last week that many folks inside the Beltway fear it is inevitable that the striking down of the federal guidelines in Booker and Fanfan would lead to congressional passage of additional mandatory minimums, even though all thoughtful observers recognize, in the words of Justice Kennedy, that "[i]n too many cases, mandatory minimum sentences are unwise and unjust." Indeed, I believe this fear best explains the curious briefs filed by the USSC and the former judges and the Senators seeking to defend a federal sentencing system that they know is flawed, perhaps deeply flawed, in many respects.

Though a fear of Congress' (over)reaction to the striking down of the federal guidelines is understandable and perhaps even justifiable, for now I am going to hold on to my (naive?) optimism that meaningful sentencing reform after Blakely is possible. I really want to believe that, if thoughtful judges like Kennedy and Cassell keep speaking the truth about our current federal sentencing system, our elected representatives will care enough about good government (and not just about campaign rhetoric) to really try to do better.