Strike 2 for Sentencing Guidelines

Strike Two – Second Court Takes Down Guidelines

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Deseret Morning News, Wednesday, June 30, 2004

Judge tosses federal guides

Cassell says rules on sentencing unconstitutional

By Angie Welling

Deseret Morning News

A Utah judge on Tuesday declared federal sentencing guidelines cannot be constitutionally applied in a child pornography case, taking the lead in a national debate sparked last week by the U.S. Supreme Court.

“I take no pleasure in striking down the guidelines today . . . but the court’s fundamental obligation is to uphold the Constitution,” U.S. District Judge Paul Cassell said in declining to follow the guidelines implemented by Congress more than 15 years ago.

Though he was careful to say his decision applied only to the case at hand, Cassell later noted in a 39-page order the “potentially cataclysmic implications of such a holding.”

Cassell first raised the issue Monday when he began issuing orders in each of his criminal cases advising prosecutors and defense attorneys of the constitutional questions brought about by the Supreme Court’s ruling.

Cassell’s courtroom was packed Tuesday with defense attorneys, prosecutors and law clerks — all anticipating some type of sweeping decision on the issue.

“It’s a huge case,” said defense attorney David Finlayson. “It really does have a wide-range effect on the (application) of the guidelines and it’s going to be litigated, I’m sure, for a long time.”

In his written order, Cassell announced he intends to continue issuing sentences without regard for the guidelines “until the constitutionality . . . has been definitely resolved by the Supreme Court.” However, he said he will also issue a “fallback sentence” to avoid resentencing each defendant if the guidelines are ultimately found to be constitutional.

Thursday’s ruling in Blakely v. Washington called into question the constitutionality of tens of thousands of sentences imposed under state and federal sentencing guidelines. The divided court held that judges cannot legally rely on facts not proven beyond a reasonable doubt to lengthen a defendant’s prison term beyond that set out in sentencing guidelines.

Though the decision applied only to Washington state’s sentencing guidelines, a dissenting opinion noted the similarity between that framework and the federal guidelines. Cassell, too, found the similarities too great to ignore.

“Doesn’t the rationale also lead to the conclusion that the federal sentencing guidelines are unconstitutional?” Cassell asked Tuesday. “Isn’t it time for the other shoe to drop?”

In light of the ruling, which Cassell wrote imposed a “constitutional straitjacket” on the court, the judge determined he had three options in sentencing Finlayson’s client, Brent Croxford, on one count of sexual exploitation of a child.

First, he could convene a jury to determine the factors he would have previously used to enhance Croxford’s sentence — that the South Jordan man obstructed justice by fleeing the state after being charged, and that Croxford participated in similar conduct with a second victim. Cassell dismissed that option as “essentially unworkable.”

Second, he could decline to impose any sentence enhancements but still consider defense motions that would lessen Croxford’s sentence. But that course of action, the judge said, would be “fundamentally unfair” to prosecutors.

And third, he could “throw (the guidelines) out in their entirety” and impose a sentence somewhere between the 10-year minimum mandatory sentence and the 20-year maximum term allowed by federal statute. The sentencing guidelines lay out specific sentences within the statutory range, based on a number of personal factors.

Cassell ultimately chose the third option, sentencing Croxford to just over 12 years behind bars. The 148-month sentence was three months shy of the term called for in sentencing guidelines, with the enhancements included.

The U.S. Attorney’s Office for Utah had asked for a 30-day continuance in the case, to allow an opportunity for the U.S. Department of Justice, which sets policy for federal prosecutors nationwide, to “formulate a uniform strategy” in response to the Blakely decision.

Cassell rejected the request, and the U.S. Attorney’s Office is now awaiting guidance from the Justice Department as to how to proceed, spokeswoman Melodie Rydalch said.

The question now is whether Cassell’s colleagues on Utah’s federal bench will follow suit and also discard federal sentencing guidelines. They are not bound to do so, but some have been vocal critics of the way in which the mandates often tie judge’s hands.

U.S. District Chief Judge Dee Benson publicly criticized the guidelines in September 2002, when he was forced to sentence a 24-year-old man to 65 years in prison for a series of armed robberies.

“It’s easy for Congress to sit and write a sentencing statute without any regard” for the impact on individual defendants, Benson said at the time. “At a time like this, I wonder how much (Congress) thought this through.”

U.S. District Judge Tena Campbell granted prosecutors’ request Tuesday for a continuance in an unrelated case, in part because of questions raised by Blakely.

A handful of defense attorneys who gathered Tuesday to discuss Cassell’s ruling agreed his interpretation will largely benefit criminal defendants.

At the greatest advantage will be those in the “run-of-the-mill cases,” such as illegal immigration, firearms violations and minor drug possession, defense attorney Fred Metos said.

Stringent guidelines often call for hefty sentences that are disproportionate to the crime, he said. Cassell’s model of staying within a statutorily mandated range would allow judges more discretion to consider all of the factors before imposing a sentence.

“It will be interesting (to see what happens),” defense attorney Richard Mauro said. “This is a fascinating time for us and our clients.”

E-mail: awelling@desnews.com

© 2004 Deseret News Publishing Company

For more information contact David Finn.

Judge David Finn