Lawful, yes -- but just?

Posted: Aug 16, 2006 12:01 PM

The facts in the case of Weldon Angelos are not in dispute: He really did sell 24 ounces of marijuana to an informant, and he really did carry a handgun when he did it.

The story can be summarized in a paragraph. Four years ago, Angelos' former girlfriend informed federal agents that he was selling drugs at an address in Salt Lake City. Through an undercover agent, officers staged three separate buys of marijuana, then obtained a warrant for Angelos' arrest. They seized $18,000 in cash and five handguns.

Indicted on four felony counts and two lesser charges, Angelos declined the prosecutor's bargain offer of 15 years and out. When he refused to plea, federal prosecutors piled on 16 additional counts. Found guilty by a jury, he was sentenced in November 2004 to 55 years and a day in a federal prison. This past January a panel of the 10th U.S. Circuit unanimously affirmed that sentence. He filed his appeal in the U.S. Supreme Court six weeks ago. If he is required to serve his full term, he will be free soon after his 82nd birthday.

The question he has asked the high court to hear is not whether his punishment fits within Chapter 18 of the U.S. Code. It fits. He asks whether it fits within the Eighth Amendment: Is it both cruel and unusual? More tellingly, I would ask, is it just? District Judge Paul G. Cassell, who presided over the jury trial, felt strongly that the long prison term could not be justified, but under federal sentencing guidelines, he had no choice but to impose it.

In a written opinion, Judge Cassell sympathetically identified Angelos as a first offender, a successful music executive with two young children. "To sentence him to prison for the rest of his life is unjust, cruel and even irrational." A fair sentence, he thought, would have been two years for the firearm he carried and six years for the marijuana. His post-trial poll of the jurors found them a little tougher: They would have sentenced Angelos to a median term of 15 years.

In an extensive appendix, the judge noted that the sentence imposed on the defendant for possessing the guns was longer than he would have received for hijacking an airplane or raping a 10-year-old child. The terrorist who is convicted of detonating a bomb in a public place and killing a bystander can expect less than 20 years.

Judge Mary Beck Briscoe, writing for a unanimous panel of the 10th Circuit, was not impressed by Judge Cassell's "cruel and unusual" argument. She cited five Eighth Amendment cases in the Supreme Court over the past 26 years in which sentences have been sustained of 40 years, 50 years or even life for relatively petty cases of stealing or dealing in drugs. Indeed, the Supreme Court has reversed only two convictions under the Eighth Amendment in the past hundred years.

Turning to Angelos himself, Judge Briscoe exposed a different side: He was "a known gang member who had long used and sold illicit drugs, a mid-to-high drug dealer who had purchased and in turn sold large quantities of marijuana." He had failed as a musician. Presumably he was living off his trade in drugs. That he had not been arrested "appears to have been the result of good fortune."

Because I believe the draconian sentence imposed upon a young first offender is wildly unjustified, I hope the Supreme Court will grant review. The court's concern, I know, is not with equity, but with law. The court also values an appearance of stability, and it spoke to the question of "disproportionate sentences" in two relevant cases just three years ago.

The two cases were Ewing v. California and Lockyer v. Andrade , both decided 5-4 and both involving serious repeat offenders. Gary Ewing, for example, appears in the law books as a truly incorrigible thief. In March 2000, while on parole from a nine-year prison term, he capped his career by stealing three golf clubs. At last he was hit with a sentence of 25 years to life.

Justice Sandra Day O'Connor spoke for a badly fractured court in concluding that the sentence was neither cruel nor unusual, i.e., it was "not grossly disproportionate." Justices Scalia and Thomas sputtered unhappily in concurrence. The usual four dissented. Since then Chief Justice Rehnquist has died and Justice O'Connor has retired, so their successors might want to hear an appeal from a different defendant with a heap better record. But don't bet the ranch.

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