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Judge Cassell Testifies Against Mandatories:
Today one of the smartest District Court judges in the country, Paul G. Cassell, testified before the House Judiciary Committee against the use of mandatory minimum punishments. His written testimony is here.
LawMan 5000:
Cassell's statement is remarkable. It seems to me that the absurd sentences yielded by stacking minimums is a political failure in the extreme. I think there is a very good case to be made that a district court judge would be justified in refusing to impose a 55-year sentence on a first-time offender who carried, but did not display, a gun at several low-level marijuana deals. To me, this qualifies as cruel and unusual punishment. There is absolutely no political voice for redressing this kind of cruelty.

Cassell is certainly no liberal, and he was the first to defend adherence to sentencing guidelines after Booker. He has done a great service by succinctly articulating the problems with mandatory minimums. I hope the House listens to him.

Finally, who are these AUSAs who brought three counts of 924(c) against this man? People complain about Nifong and Fitzgerald, however, this is the type of prosecutorial discretion that really matters.
6.27.2007 2:11am
mrshl (www):
Reading this makes me wonder about US prosecutors, and the particular metrics used to measure their performance. Are they evaluated based upon the lengthy sentences they are able to obtain? If so, it seems like they'd seek maximum sentences for cases that were "slam dunks" so as to mitigate less severe sentences reached via compromise when there is less certainty or more competent defense counsel.
6.27.2007 2:18am
Nathan_M (mail):
The right to trial by jury seems almost meaningless when exercising it results in a mandatory 55 year sentence instead of 15 years offered as a plea bargain. It would take an extremely brave (or foolish) defendant to turn that deal down, however innocent he is.

Leaving aside the mandatory minimum for guns, am I the only one who finds a 6.5 - 8 year sentence for a first offender selling under $1000 of marijuana insane to start with?
6.27.2007 4:07am
Ryan Waxx (mail):
"Perhaps the most serious damage is to the public's belief that the federal system is fair and rational."

Tough cookies, Judge. Perhaps you should have thought about that before the public outrage over judges who let their political prejudices run wild, turning the federal system into a mere lottery where weather you were slapped on the wrist or were actually punished for the crime you committed was entirely dependent on weather the judge in question felt like enforcing that particular law that day. Or weather they politically agreed with the law.

Mandatory minimums were enacted as a direct result of no one believing that the federal system was fair and rational.

And now they parade a pocketful of anecdotes where mandatory minimums didn't produce the best result, and pretend that the cases where NOT having mandatory minimums caused injustice never existed.

I'm sure that many judges would love to go back to the system where they could pick and choose which laws to enforce. I don't see a single paragraph in Cassell's testimony which suggests that the judges have learned their lesson and will actually enforce the law if they aren't forced to do so by the minimums. Do you?

They might not LIKE or AGREE with the laws that the voters, through their representatives, pass... but they may not decide to change the law by deciding that they won't enforce laws they don't like. That's why mandatory minimums exist, and since the attitudes that made them necessary still exist, so must the minimums stay.
6.27.2007 5:10am
Ryan Waxx (mail):
If a given law produces irrational results, then it is the law itself that needs to be changed. If you leave the law in a state that demands an irrational result and then rely on judges to ignore the law, than you haven't fixed a bad law... you've simply substituted a judge's will for the will of the people.

Cassell's testimony belongs in one place and one place only: in a debate in Congress on a new law to replace the one that's gone wrong. That he focuses not on efforts to fix bad law, but rather for increased judicial powers to ignore it, speaks volumes.

You would never argue that if Bush finds the letter of the law inconvenient, he should get power to ignore the result he perceives as irrational and do what he likes regardless. So why does your attitude on that 'solution' do a 180 if the ignorer wears a robe instead of a cowboy hat?
6.27.2007 5:42am
Bill Logan (mail):
Leaving aside the mandatory minimum for guns, am I the only one who finds a 6.5 - 8 year sentence for a first offender selling under $1000 of marijuana insane to start with?

Utah doesn't have determinate sentencing, so trying to determine an analogous state court sentence is a matter of guesswork as to what the Parole Commission would decide. Presumably the guess is based on experience, but it's not set in stone. After all, the court's probation staff thought that Angelos would have served a state prison term of 2-3 years.
6.27.2007 6:08am
Philistine (mail):

I'm sure that many judges would love to go back to the system where they could pick and choose which laws to enforce


One problem, though, is that mandatory minimums (and much of the Guidelines themselves) have removed the traditional sentencing discretion of judges and given it directly to Prosecutors.

Of course, some argue this is a feature, rather than a bug....
6.27.2007 9:41am
c.f.w. (mail):
If we err in sentencing for things like drug cases, we should err on the side of leniency - it is cheaper and more humane. Put a few more red state republicanal partisans in jail for 19 - 25 years for non-violent offenses (enron types) and the need to curb sentence inflation will become more obvious to all. This needs a look globally as well as nationally - like SOX, criminalizing or "tortifying" contract law (eg Unfair Competition Law, False Claims Act) will tend to drive business out of the US to the EU and UK.
6.27.2007 10:06am
Dave N (mail):
As a state prosecutor who has not been afraid to seek substantial sentences for serious crimes, my first thought after reading this is that Judge Cassell is correct--and so was Judge Reinhardt in the portion of a concurrance that Judge Cassell quotes (I have to mark June 27 as a historic date on my personal calendar).

I do not see Judge Cassell as arguing against the Sentencing Guidelines--rather against statutes that provide absolutely no safety valve of any kind.

I agree with Judge Cassell--a substantial sentence was warranted for the underlying offense--an additional 55 years for the defendant in his example is a crime in and of itself and does not comport with my sense of justice.
6.27.2007 10:46am
OrinKerr:
Ryan Waxx writes:
Cassell's testimony belongs in one place and one place only: in a debate in Congress on a new law to replace the one that's gone wrong.
Um, Ryan, isn't this exactly where the testimony was given? He isn't saying that judges shoould ignore the law: He's saying that judges are bound to it. Congress then invited him to express his views to them on the wisdom of current law so they could consider amending it, and he agreed.
6.27.2007 12:02pm
Ryan Waxx (mail):

Um, Ryan, isn't this exactly where the testimony was given?


As the rest of the paragraph makes clear, I mean testimony in a session to fix whichever mandatory minimum laws are causing the unjust results he decrys, so that they don't result in those kind of scenarios - as opposed to testimony seeking to abolish the mandatory minimums idea.

Something along the line of 'enhancements cannot increase a sentence more than 50% of max' would alleviate most of what he's complaining about... and if I can think of something like that instantly, then he obviously considered and rejected similar approaches, instead arguing for more power for his profession without even so much as a sentence acknowledging why that discretion was taken away. That tells me that he and his fellow jurists have learned nothing at all, and that the abuses will resume about five seconds after MM is removed.
6.27.2007 1:02pm