Judge Cassell’s remarkable, and remarkably disappointing, decision in Angelos

I have finally had a chance to give Utah US District Judge Paul Cassell’s decision in the Angelos mandatory minimum case a careful read (basics here). I am glad to see that the decision has the editorial pages humming, with strong pieces in the LA Times, the Daytona-Beach News Journal, and the Salt Lake Tribune (and I will be doing this NPR radio show on the topic tonight). 

I was particularly pleased to see Judge Cassell’s home paper, the Salt Lake Tribune, assail Judge Cassell for having “passed the buck.”  For though the Angelos opinion is remarkable in many respects, the opinion is also remarkably disappointing in its fairly summary treatment of Weldon Angelos’ strongest claim — namely that his sentence constituted cruel and unusual punishment under the Eighth Amendment. 

Part of what makes the Angelos opinion remarkable was that Judge Cassell spends 40 pages considering whether the 55-year gun enhancement was “irrational” (which seems like a stretch in light of deterrence arguments), but then he spends less than 10 pages considering whether this enhancement is “cruel and unusual” (which seems far more plausible in light of the modern proportionality/retributivist understanding of that provision).  Moreover, after explaining for 5 pages that “the three Harmelin factors … lead to the conclusion that Mr. Angelos’ sentence violates the Eighth Amendment,” Judge Cassell in two pages summarily concludes that, because in Hutto v. Davis, 454 U.S. 370 (1982), the Supreme Court upheld 40-year sentence in a marijuana case, Mr. Angelos’ “Eighth Amendment challenge must be rejected.”

With all due respect to Judge Cassell, the truncated analysis here suggests the Judge simply got tired.  Even beyond the fact that Hutto is arguably not good law after Solem and Ewing (a point which Judge Cassell notes), and even beyond the fact that the scope of the Eighth Amendment “is not static [and] must draw its meaning from the evolving standards of decency that mark the progress of a maturing society,” Trop v. Dulles, 356 U.S. at 101, the holding and facts in Hutto are readily distinguished.  As a matter of context, the Hutto ruling (as well as Harmelin and Ewing) is influenced by principles of federalism not implicated in the review of a federal criminal sentence.  And, even more tangibly, the defendant Davis in the Hutto case “previously had been convicted of selling LSD, and the two offenses for which Davis had just been found guilty were committed while on bail pending appeal from the previous conviction for selling LSD.”  Thus, in Hutto the court considered a true repeat offender, which readily distinguishes that case from the case before Judge Cassell.