I haven’t always been kind to former federal judge turned victims’ rights advocate and law professor, Paul Cassell. That’s not going to change now, even though it might appear to some that he’s done something praiseworthy.
A former federal judge in Utah asked President Obama Tuesday to “swiftly” give clemency to Weldon Angelos, a man he sentenced to 55 years in prison in connection with selling marijuana.
Calling the sentence “one of the most troubling that I ever faced in my five years on the federal bench,” Paul G. Cassell, now a professor at the University of Utah’s law school, said the mandatory minimum sentence he was required to impose on Angelos was one of the chief reasons he chose to step down as a judge.
It’s not that Angelos is undeserving of clemency. It’s not that his sentence, a by-product of the government’s charging decision and the stacking requirements of 18 U.S.C. § 924(c), plus the Supreme Court’s uncharitable decision in Deal v. United States, is not absurd. Indeed, Cassell said as much in his written opinion following sentence. 
If it was “unjust, cruel, and even irrational,” why do it? What about § 3553(a)? What about the Eighth Amendment? But then you would have been reversed by the Circuit, possibly with harsh words for your not being a good soldier, and that would have been shameful.
But, at least he’s doing something now, you say? Yes, he is. 
Both the government and the defense agree that Angelos should serve six to eight years? How wonderful to have such agreement. How kind of the government. How reasonable and thoughtful it all sounds. Except it’s bullshit.
Not to be a stickler for details, but what part of the government urging you to sentence Angelos to no less than 61½ years sounds vaguely reminiscent of six to eight years?
But more to the point, to the extent the Guidelines, created by what you call the “Congressionally-created expert agency,” the Sentencing Guidelines Commission, “tied your hands,” it did so only because the United States Attorney made the active decision to charge Angelos with the stacked gun counts.
And yet, you not only absolve the government from all responsibility for its deliberate choice to ram stacking down your throat, but you pat them on the head for being so very kind and reasonable?
Rather than this “woe is me” missive to the President to urge his exercise of the pardon power, where were you when you sat on that bench and had the authority to do something? Why not hold the punishment cruel and unusual under the Eighth Amendment? Why not hold that the Second Amendment provided a fundamental individual right to possess the guns, and hence, since no gun was used in the commission of a piddling weed sale, that it would be unconstitutional to punish a person for the exercise of a fundamental right.
Judge Weinstein had the guts to say no. Judge Weinstein got spanked by the Circuit for it, and had the guts to do it again. Judge Gleeson worked to achieve what he determined to be the proper outcome, despite the lack of an easy path that would assure him a circuit tummy rub. And again. And again. And again.
That last time, you, Paul Cassell, decided to get your two cents in:
At the WaPo Conspiracy, former federal judge cum victim’s rights advocate, Paul Cassell,who lost little sleep imposing guidelines sentences upon individuals who failed to meet his personal definition of victimhood, notes a decision out of the District of New Mexico. In United States v. Reyes, a 73-page opinion, Judge James Browning goes mano a mano with Judge Gleeson.
The Court does not share Judge Gleeson’s policy disagreement with the drug trafficking Guideline ranges. Given the importance of this issue in the nation’s ongoing debate about drug policy and the importance of the issue to the defense bar generally, the Court will explain at some length why it does not share Judge Gleeson’s views. Most importantly for Reyes, because Court lacks a Kimbrough v. United States disagreement with the Commission’s Guideline ranges for drug trafficking offenses, although the Court varies, it does so for reasons tied to the § 3553(a) factors and not to a policy disagreement with the Guideline ranges.
The “why” is both easily stated and nearly impossible to decipher at the same time. At its core, Judge Browning’s view is reminiscent of Justice Robert Jackson’s quote from Brown v. Allen, “We are not final because we are infallible, but we are infallible only because we are final.”
The Court’s fundamental disagreement with Judge Gleeson is his repeated assertion that Congress “made a mistake.” In the first place, unless the mistake is of constitutional dimension, i.e., the statute is inconsistent with the Constitution, it is hard for a Court to say that Congress, the elected branch of our government, ever makes a “mistake.” Judges used to be more charitable to Congress and say that Congress acted such a way “in its infinite wisdom.” The Court does not presume to tell Congress that it made a “mistake”; on an issue of how long a sentence should be, it is hard for a judge to say that another judge’s sentence is a “mistake.” It seems particularly hard for a judge to say, with any sound footing, that Congress made a mistake.
If Congress said so, so it must be. It would reflect an inexplicably breathtaking view of deference toward Congress, but for the fact that he, like Cassell, doesn’t view the guidelines as “unduly harsh.” They are, apparently, just the right amount of harsh for Judge Browning.
So this time, this one time, you felt that the sentence you imposed on Weldon Angelos crossed the line, was too harsh, was “unjust, cruel, and even irrational”? It’s very thoughtful of you to write a letter to President Obama supporting his petition for clemency.
Too bad you didn’t have the fortitude of your convictions when you chose to impose that sentence rather than refuse to be a tool. Too bad that even now, you can’t bring yourself to say anything unpleasant about the government. Too bad life tenure didn’t embolden you to do what you claim to believe was right. But now that you wrote a letter, all is forgiven and forgotten. Now, you’re a swell guy.
Maybe President Obama will do what you failed to do. But given his record, it’s unlikely. Too bad for Weldon Angelos, right?
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Gee, I saw “Cassell to Obama” and I assumed this was a news feature about the former NBA star passing the BB to Obama in a pick-up game.
Alas, I should have realized you distaste for basketball and just skipped it. I’d say, “my bad” but I’ve been told that’s more infantile than most of my toilet comments.
I’m off to try a case now….and I didn’t even have to go to law school. Cool how that works: They send you an “invitation” and if you don’t show up they send a couple of guys to your house with handcuffs. Really, they have time for that stuff. I always get picked for the jury.
We see this a lot. Taking responsibility requires reasoning a problem through. Thinking makes a head sore, for most people. He’s one of them.
What is it with judges that read and write by desk lamp in chambers by day and under the covers by flashlight at night expecting the moonlight to fix things?
Dear SHG,
As I bet you know, I have done about the same thing as Judge Cassell.
I sentenced Hamedah Hasan (a black pregnant mother of two with no criminal history) to her initial life sentence after writing a long opinion explaining why but also suggesting that the sentence was wrong. I then reduced her sentence when the Guidelines were first changed retroactively. In so doing, I reduced her sentence even more than allowed for by the change, but the Court of Appeals reversed, and in an en banc opinion, held that the additional reduction for post-offense rehabilitation was not permissible under the statute. Due to later retroactive amendments under the crack Guidelines, Ms. Hasan was eventually released from prison on Feb. 7, 2012, after serving about 18 years.
I felt horrible about the sentence I had imposed. As a result, I participated in activities to convince the President to commute her sentence. I wrote a letter to the DOJ pardon attorney and the President. I participated in Rev. Melissa Mummert’s film entitled A Perversion of Justice featuring Ms. Hasan. I asked a lawyer friend from a big firm that was politically connected to help with the commutation application. In short, and as I have remarked in other contexts, Ms. Hasan’s case caused me to seriously consider resigning.
Now, to be objective, Ms. Hasan was offered a plea that would have allowed me to sentence her to as little as 10 years in prison. She was represented by a good lawyer, known for her strong feminist views, who urged Ms. Hasan to take the deal. But Ms. Hasan was a very angry young woman. Ms. Hasan refused and elected to stand trial with relatives. Ms. Hasan was guilty as hell. She was not a victim and she was not innocent. She was involved in a boatload of crack (multiple kilos) while serving as the money handler for the small group that came from the west coast to Omaha to distribute their poison to the poor. In my opinion, and even though she had no criminal history and was a mother with children, she should have spent about 12 years in prison for her crime. But a life sentence, or even the “reduced” 324-month sentence (that was later reduced even further by retroactive amendments), was nuts.
Here’s my point: While I deeply respect the judges you alluded to on the other side (Judge Weinstein and Judge Gleason), I did not impose the life sentence on Ms. Hasan because I gave a shit about being reversed. (For example, I knew damn well that I would be reversed on the second partial-birth abortion case that went to the Supreme Court and I also knew that any chance I had to become a Circuit judge had been flushed down the shitter because I did what I thought the law required.) No, I imposed the sentence on Hasan, despite my grave misgivings, because my conception of exercising the power of a federal judge is vastly different than yours.
All the best.
RGK
Sorry Judge, I’m lost.
With all due respect,
Either you do, or you don’t.
There is no sitting on the fence when you are a judge.
Winningtrader,
I am sorry for your confusion. Let me clarify, albeit briefly.
Some federal judges think they are mainly responsible for “doing justice.”* I think federal judges are mainly responsible for “doing law.” It is a matter of a judge’s proper role in a democratic society.
Because our federal judicial system is fundamentally undemocratic, I view my proper powers as “skinny.” Others, in perfect good faith, and particularly cognizant of the Constitution’s command to protect the rights of individuals even if those individuals are in the minority, view their proper powers as “robust.”
All the best.
RGK
*As you know, the philosophers remind us that the word “justice” has many meanings.
Wow! Thanx for the quick turnaround. We understand that there is a difference/discrepancy between
Doing Justice and Doing Law, in practice, (and never the twain shall meet!). You know,… Law Prawfs v. Boots on the Ground in the well of the courtroom, etc. Scott is all over this like a rash. Some of us would like to close the gap, so to speak. That is what this blawg is all about, hopefully, as we understand.
“A matter of a judge’s proper role in a democratic society”,… well let me say this about that! What IS a judge’s role in a ‘democratic society’? That is a v. difficult question, if you will PARDON me for saying so! A rhetorical question? Personally, we look forward to the day when judges, such as yourself, become obsolete and unnecessary. Likewise heavily armed police officers in Ferguson, Mo. with quotas to fill, and/or misguided notions as to citizens’ rights in the public domain and the protection of same by authorities.
Full Disclosure: We majored in Philosophy, and the rest is History. What a mistake that was? We await your response with baited breath. Justice to us means “just us”, as previously posted here by me.
I remember your Hasan case well from your writings. But there is a significant difference between imposing a Guidelines sentence, pre-Booker, with which you disagree, and imposing a sentence you call “unjust, cruel, and even irrational.” And if he, inexplicably given his own words, didn’t think it implicated the Eighth Amendment, but was so awful (and it was) that it compelled him to act, then he should have. But what he doesn’t get is Brownie points for being a good soldier, but feeling badly about it.
That Hasan’s sentence was longer than you believed necessary to conform with the requirements of 3553(a) was one of the great failings of the guidelines, but didn’t invoke the Eighth Amendment. Was it “unjust, cruel and even irrational”? That said, you could have drawn a line and chose not to. Imagine if Booker had started at your bench. Somebody had to be the first one to say enough of this madness.
SHG,
Fair enough. All the best.
RGK
I understand there are different views on the role of the federal judge. And in mandatory minimum cases, the role of the federal judge, per the law, is akin to a cash register, just crunching the numbers. It is true, we can’t blame the judiciary for it. And I am not sure what Scott would have every judge do…fight the system? What exactly can a judge do? Not sure what the answer here is except do exactly what you and other judges have done.
But what about in cases where there is no mandatory minimum but the guideline sentence is still 20-30-40 plus years? If the role of the judiciary is to simply follow the democratically elected politicians and follow the “independent”” experts” at the US Sentencing commission, then almost always a guideline sentence would be called for? Right? Wrong? When do you a federal judge decide to temper the perversity of prolonged incarceration with the dictates of “sufficient but not greater than necessary” in 3553(a)?
Prior to Booker et al, I assume federal courts could presume that all guideline ranges were sufficient but not greater than necessary. Can you disagree now? You surely could and you still would be in line with your vision of the role of the federal judge: the Umpire.
Debra,
Great questions. I don’t have great answers. But here is the best I can do, at least for now.
The one value of the Guidelines now is that it imposes a rough proportionality, albeit a harsh one. Still further, I now try to do what Booker, et al, command, but, as I have previously written over at Fault Lines, section 3553(a) is incoherent, contradictory and provides no Guidance at all. Finally, I don’t think I am any better at sentencing than lots of other reasonably thoughtful lay people. So, what do I really do? To be profane, I am left to pulling it out of my ass. Yes, legal realism sucks.
All the best.
RGK
[Ed. Note: Comment move to reply to RGK’s comment rather than start a new thread. Again. Use the reply button.]
Thank you. Your bluntness and candid observation make it terribly hard to disagree with you. One thing I would like to see, but never will, would be for a judge at sentencing to say what you just said and for a Court of Appeals to agree that everyone is pulling numbers out of their ass. There is no moral calculus in these arbitrary numbers. In light of these limitations, perhaps the spirit of 3553(a) is to limit the damage to the defendant as far as possible. While researching this issue a bit further, I stumbled upon a few cases were defendants were sentenced to 112, 150, 330, 450 and 835 years in the federal system for non-violent offenses, all affirmed on appeal. Applying the Guidelines as is or stacking or whatever, more often than not, can’t be squared with 3553(a).
In any event, your honesty should shame other judges that hide behind the robe.
An appellate reversal is a lot different for life appointments than elected judges. While some judges you mentioned will take the repeated reversals all it takes is one 3 judge panel thinking similar to the district judge to set new district court precedent. Enough 3 judge panels or one en banc affirmation and who knows what SCOTUS would do. But if you don’t follow your convictions nothing will change. As the 8th was invoked, the district court can present a holding based on constitutional analysis. Presumably the defense counsel raised that issue and placed it before the court since the 8th was cited.
Law Student alert:
They dont teach us law practice just a bunch of Rawls, Hart and Dworkin and so on. So I have a question:
is the judge’s adherence and position (his notion of the role of the judiciary) accurately described as legal positivist (Rawls etc)?
Meaning you shun legal realism and steadfast follow the rules because that is your conception of justice?
As I said I am a student…..don’t expect much from me at this point, feel free to insult or correct me so I learn. I want to learn not be sensitive so do break it down for me. Any takers?
I waited to reply to see if anyone else cared to venture an answer. As for me, your question reflects a sad fact that law school is wasting your time with such utterly irrelevant nonsense as “Rawls, Hart and Dworkin and so on.” Who cares if its realist or positivist? Your prawfs, apparently, but not me.
Benjamin,
I don’t have time to give you an expansive answer to your questions. So two points:
(1) I don’t shun legal realism, I embrace it;
(2) read Judge Richard Posner’s The Essential Holmes: Selections from the Letters, Speeches, Judicial Opinions, and Other Writings of Oliver Wendell Holmes, Jr., (Paperback – January 1, 1997). In Holmes, you will find the greatest legal and practical and realistic mind that our country has ever produced. Holmes has influenced me the most.
All the best.
RGK
judge kopf,
Thanks for the response. I am going to order that book online now.
Scott: And yea our profs deal with law as if it is a museum and they are teaching art history or philosophy. I know nothing about actual law practice….yet. But I am caught trying to categorize everything into this or that school of thought and I cant ever see myself making use of Hart, Dworkin et al in a legal proceeding without getting it wrong or having one of the parties think I am pretentious.
If it makes you feel any better, once you’re in the trenches, no one will ever mention them again and you will never have a reason to say Dworkin in a legal proceeding. Judge Kopf, being a judicial intellectual, can concern himself with legal realism. The rest of us spend our days trying to keep our clients from dying any way we can. That’s about as real as it gets.
SHG,
How dare you call me “a judicial intellectual.” Coming from a public intellectual like you, that’s like the pot calling the kettle black. And, so there!
All the best.
RGK
We all have our limiteations. The U.S. Senate accepted you as you are, Justice Kopf! So should the rest of us.