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Former federal judge is striving for balance

He still questions laws as a teacher, advocate

Published: Thursday, Aug. 27 2015 3:36 p.m. MDT

Former federal judge Paul G. Cassell, who stepped down last September, feels areas of minimum-mandatory sentencing and immigrant prosecution need help. (Laura Seitz, Deseret Morning News) Former federal judge Paul G. Cassell, who stepped down last September, feels areas of minimum-mandatory sentencing and immigrant prosecution need help. (Laura Seitz, Deseret Morning News)
When Utah's youngest federal judge announced he was stepping down from the bench last September, many in the legal community wondered why someone would leave behind a lifetime appointment by the U.S. president.
Paul G. Cassell was 42 when he was appointed to the bench, but 5 1/2 years later the former federal prosecutor and University of Utah law professor announced he would return to teaching and take up a new career in legal advocacy.
"One of the things I've found out is that now nobody stands up when I enter a room," he joked.
Sitting in his temporary office at the S.J. Quinney College of Law, Cassell told the Deseret Morning News that, as a federal judge, he felt there were several areas in federal law that were out of balance, particularly in the areas of minimum-mandatory sentencing and prosecution of some illegal immigrants. He saw some aspects of federal law caught in a vortex of political competitiveness for tougher sentences pushed by members of Congress.
While it is constitutional for Congress to impose mandatory sentences, "is it wise for them to impose these draconian mandatory minimum sentences? I guess that's where I would urge Congress to introduce some more flexibility," Cassell said.
"There's a kind of ratchet effect where the Republicans will say, 'We want a five-year mandatory minimum sentence,' and Democrats will say, 'We'll up you, we want a 10-year mandatory minimum sentence,' and you have people ratcheting up sentences to the point where any reasonable observer would think we've gone too high, but there's no political incentive to undo the mischief."
Cassell said, in his mind, it takes political courage to step up and say the punishment does not fit the crime.
In what he calls one of the most difficult cases he handled in his judicial career, Cassell said he felt he had to speak out on a mandatory sentence that he was compelled to mete out against young drug dealer Weldon Angelos.
Due to a minimum mandatory sentence imposed by Congress against drug dealers who carry firearms, Angelos was sentenced to a mandatory 55 years in federal prison on his first-ever drug conviction for dealing marijuana.
Cassell wrote a lengthy legal opinion on Angelos' sentence, which he sent to Congress and the president. That opinion earned him nationwide praise from legal scholars.
It wasn't the first time Cassell made the national spotlight. In his 2004 decision in United States v. Croxford, Cassell became the first judge in the country to hold that federal sentencing guidelines were unconstitutional. A few months later, the U.S. Supreme Court agreed with Cassell in the 2005 landmark case United States v. Booker, which found federal sentencing guidelines should be advisory and not mandated for judges to follow.
But the most difficult case of his career, Cassell said, involved an illegal immigrant. The case involved a man who used a stolen Social Security number to get a job. Federal prosecutors chose the man to be the first in Utah charged under a new aggravated identity theft statute, which imposes a two-year mandatory sentence. Cassell questioned why the man should be sentenced to two mandatory years for using the number to get a job, while others steal Social Security numbers to steal people's money and credit.
"The fact is, in this country there are millions of illegal aliens with phony IDs. Out of these millions of people, in my mind, one defendant had been selected for prosecution," Cassell said. Prosecutors argued that the man used a stolen number that belonged to a real person. Cassell ordered a review of pre-sentence reports on other illegal immigrant cases and found virtually all of them had used numbers that belonged to real people, yet their sentences were less.
Since then, Cassell said the U.S. Attorney's Office in Utah has put in better screening policies for such cases.
Cassell said he found himself questioning some laws at each turn. "I felt like it was proper judicial role to ask questions, even if we weren't necessarily charged with fixing the problem," he said. But he wanted to do more — he wanted to make a change. Being a federal judge, he couldn't do that.
"One of the frustrations about being a trial court judge is that you never set broad principles of law; of course, that's reserved for the appellate courts. ... When I was there for 5 1/2 years, I began to think that maybe I would have more effect in moving the law in a way that I think is desirable by doing appellate litigation."
Becoming a legal advocate is a better fit, he said. "I felt like for the rest of my life, I wasn't sure I could stay in one place doing one kind of thing. There were some issues I wanted to pursue, particularly working on crime victims' rights, which is an area that I felt very passionately about."
Traditionally, criminal cases involve two parties: the state and the defendant. But a growing trend in courts is to give the victims of crimes more of a voice in cases. In addition to teaching at the U., Cassell plans to work with a Washington, D.C., group that deals with crime victims' rights.
It seems being a voice for balance is innate in Cassell. One of the last things he did as a federal judge is speak out on the issue of sentencing guidelines for crack cocaine.
As chairman of the Judicial Conference's Criminal Law Committee, Cassell said he spoke for the judiciary when he sent a letter to the president and Congress supporting the Federal Sentencing Commission's recommendation to reduce sentences for crack cocaine possession versus powder. Such sentences bear a 100-to-1 ratio to sentences for powder cocaine.
"The differences between crack and powder cocaine penalties have been hurting the federal judiciary's credibility in minority communities, particularly in the African-American communities, who view the differences as racially motivated," Cassell said.
The controversial part is the sentencing commission's recommendation to make the change retroactive, meaning an estimated 19,500 federal prisoners could be eligible for sentence reductions, releasing several thousand inmates immediately.
"The question on the other side is, does that harm public safety to release drug dealers from prison? I felt like the fairness perceptions that were created more than outweighed the marginally deterrent effect of keeping a fair number of drug dealers in prison a little bit longer," he said.


E-mail: gfattah@desnews.com

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