Challenging what Blakely does not change

Because Blakely only speaks to the application of the Sixth Amendment to facts which increase applicable maximum sentences, the Supreme Court’s decision in Harris still stands for the proposition that facts which increase applicable minimum sentences can still be found by judges and by a preponderance of the evidence. (Although because of Justice Breyer’s unusual fifth vote in Harris, the long-term validity of this precedent might be questioned.) This is among the reasons some are concerned that legislatures will respond to Blakely by enacting a rash of new and harsh mandatory minimum statutes.

But, as this article concerning the case of Weldon Angelos highlights, there are plenty of old and harsh mandatory minimum statutes already applicable in the federal system. Mr. Angelos, a first time offender, faces a federal sentence of 63 years of which 55 years are required under federal mandatory minimum sentences.

Documenting that he was concerned about federal sentencing practices well before Blakely and his Croxford opinion, 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 prior to sentencing in the case.

The case is making headlines now because last week a group 29 former legal officials — including former US attorneys, federal judges, and a former US attorney general — filed an amicus brief on Angelos’ behalf, 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).

I was fortunate to receive this amicus brief from the lawyers at Greenberg Traurig, LLP who put together this impressive amicus effort. The brief is a great read (and includes an impressive list of signers at the end). Here it is for your reading pleasure:
Download mm_amicus_brief.doc