Gun Nutty Sentencing Laws

Our federal sentencing laws are ridiculously gun-o-phobic. If you possess a gun during a drug crime, even if you never used it, intended to use it or even brandished it, there is a mandatory penalty of five years tacked onto whatever sentence you get for the drug crime for the first offense, and 25 years for subsequent offenses. In the case of 25 year old rap record producer Weldon Angelos, who sold marijuana on three occasions and twice had a gun on him that he never used or even flashed, and then had some guns in his home, the mandatory minimum penalty is 55 years in federal prison. The top end of his sentencing range is 63 years. Federal sentences have no parole. You do 85% of the time.

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. ....[the judge] 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.

"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.

If the Supreme Court's Blakely decision renders the Guidelines unconstitutional, what comes next might be worse. Congress may enact mandatory minimum penalties for many more offenses.

Ronald H. Weich, a former counsel to the Senate Judiciary Committee who opposes mandatory minimums, said [mandatory minimums] 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.

Meanwhile, Mr. Angelos is arguing the sentence would be cruel and unusual punishment, an argument that has not met with great success in the past:

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.

Cassell, who has previously ruled that Blakely invalidates the federal sentencing guidelines, may go along. He says there is a difference between tough guidelines and tough 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."

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