Pubdate: Sun, 12 Sep 2004
Source: New York Times (NY)
Copyright: 2004 The New York Times Company
Contact:  http://www.nytimes.com/
Details: http://www.mapinc.org/media/298
Author: Adam Liptak
Bookmark: http://www.mapinc.org/find?199 (Mandatory Minimum Sentencing)

LONG TERM IN DRUG CASE FUELS DEBATE ON SENTENCING

Weldon H. Angelos, a 25-year-old producer of rap records, will be sentenced 
Tuesday in federal court in Salt Lake City for selling several hundred 
dollars in marijuana on each of three occasions, his first offenses. He 
faces 63 years in prison.

Laws that set mandatory minimum sentences require 55 of the 63 years 
because Mr. Angelos carried a gun while he sold the drugs.

"It would appear effectively to be a life sentence," the judge, Paul G. 
Cassell of Federal District Court there, wrote in a request to the 
prosecution and the defense for advice about whether he has any choice but 
to send the man to prison forever.

Judge Cassell, a brainy, conservative former law professor, surveyed the 
maximum sentences for other federal crimes. Hijacking an airplane: 25 
years. Terrorist bombing intending to kill a bystander: 20 years. 
Second-degree murder: 14 years. Kidnapping: 13 years. Rape of a 
10-year-old: 11 years.

He noted that Mr. Angelos would face a far shorter sentence in the courts 
of any state. In Utah, prosecutors estimate that he would receive five to 
seven years.

The Angelos case may provide a glimpse of the future. The constitutionality 
of federal sentencing guidelines was called into doubt by a Supreme Court 
decision in June, but that thinking does not extend to laws that set 
mandatory minimum sentences.

If the court strikes down the guidelines this fall, as many expect, judges 
will have much greater discretion, to the dismay of many prosecutors and 
politicians who worry that judges are not tough enough on crime.

Sentencing guidelines are set by the United States Sentencing Commission, 
an agency of the judicial branch. The guidelines were intended to limit 
judges' discretion without locking them into one-size-fits-all sentences. 
Mandatory minimums, in contrast, are enacted by Congress and are part of 
the criminal code.

"The guidelines always have some sort of escape," said Jeffrey B. Sklaroff 
of the New York office of Greenberg Traurig, a law firm that represents 29 
former judges and prosecutors who filed a brief in support of Mr. Angelos 
in July. "A mandatory minimum means what it says: it is mandatory, and it 
is a minimum."

In Mr. Angelos's case, the drug offenses and related money-laundering 
convictions, for using drug money to buy a car and pay his rent, could 
subject him to eight years in prison. The mandatory minimums are for the 
additional offense of carrying a gun while selling drugs. Mr. Angelos 
carried a Glock pistol in an ankle holster when he sold marijuana on two 
occasions, though he did not brandish or use it. More guns were found in a 
briefcase and a safe at his home.

According to the indictment, some of the guns were stolen, though Mr. 
Angelos was not accused of being the thief. Judge Cassell is required to 
add five years for the gun in the first deal and 25 years each for the 
second deal and the guns found at his home.

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."

The Justice Department supports mandatory minimums, said Monica Goodling, a 
spokeswoman.

"Tough but fair mandatory minimum sentences take habitual lawbreakers off 
the streets, lock up the most dangerous criminals and help ensure the 
safety of law-abiding Americans," Ms. Goodling said. "Since these 
common-sense policies were created, we've seen crime plummet to a 30-year 
low. The public, the Congress and presidents of both parties have supported 
mandatory minimums for a simple reason - they work."

In June, just days after the Supreme Court's decision in Blakely v. 
Washington, which struck down the sentencing system of Washington State, 
Judge Cassell was the first judge to say the logic of the decision required 
the voiding of the federal sentencing guidelines as well. In the Angelos 
case, he wrote that he took "no joy" in the "potentially cataclysmic 
implications" of that reasoning.

In Blakely, the Supreme Court held that all facts that could lead to longer 
sentences must be found by a jury. But the Washington law, like the federal 
guidelines, let judges make some such findings.

"There has not been a single case in the history of American criminal law 
with the immediate impact of this one," Frank O. Bowman, an Indiana 
University expert in sentencing law, said of Blakely. "The United States 
Supreme Court has essentially shut down the criminal justice system or at 
least put it in a state of suspended animation."

Still, whatever the Supreme Court decides about how Blakely applies to the 
federal guidelines, cases like Mr. Angelos's will not be directly affected, 
for two reasons: a jury did find the facts about the guns he possessed, and 
another Supreme Court case says judges may find the facts supporting 
minimum sentences.

Mr. Angelos's lawyers and the 29 former judges and prosecutors argue that 
the mandatory sentence in his case amounts to a cruel and unusual 
punishment prohibited by the Eighth Amendment. The Supreme Court has not 
been receptive to similar arguments in cases involving three-strikes laws 
and a first-time offender given life without parole for large-scale cocaine 
distribution.

However, Judge Cassell has drawn a distinction in his academic work between 
the guidelines and mandatory minimums. In a Stanford Law Review article in 
April, he wrote that "the federal sentencing guidelines, while tough, are 
not 'too' tough." But mandatory minimums, he wrote, "can lead to possible 
injustices."

In court papers, prosecutors said Mr. Angelos "trafficked in hundreds of 
pounds of high-grade marijuana," "distributed cocaine and synthetic 
narcotics" and "affiliated himself with a violent street gang." These 
assertions, however, were not proved to a jury.

Last year, Justice Anthony M. Kennedy of the United States Supreme Court 
told the American Bar Association that "in too many cases, mandatory 
minimum sentences are unwise and unjust." The association appointed a 
commission, which recently issued a report urging the abolition of such 
sentencing.

"There are real economic and human costs," said Douglas A. Berman, an Ohio 
State University expert on sentencing law, "to putting everyone away for as 
long as humanly possible."

Melodie Rydalch, a spokeswoman for Paul M. Warner, the United States 
attorney in Salt Lake City, said his office had no comment on the Angelos 
case. In general, Ms. Rydalch said, "we will continue to enforce mandatory 
minimums so long as Congress tells us to." 
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