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Utah judge pushes sentencing changes

Published April 17, 2006 12:40 am

House Judiciary subcommittee: Cassell testifies before Congress that the process needs adjustments
This is an archived article that was published on sltrib.com in 2006, and information in the article may be outdated. It is provided only for personal research purposes and may not be reprinted.

Cruz Visinaiz got drunk and beat to death his drinking companion, a woman with physical limitations who, at 68, was more than 20 years older than he.

Weldon Angelos had a gun tucked away during three sales of small amounts of marijuana in Salt Lake City.

The two Utahns were sentenced the same day in 2004 in U.S. District Court.

Visinaiz got the maximum punishment allowed by law: 22 years in prison.

Angelos got the minimum: 55 years.

Paul Cassell, the judge in both cases, remains disturbed by the disparity.

"It is hard to explain why a federal judge is required to give a longer sentence to a first offender who carried a gun to several marijuana deals than to a man who deliberately killed an elderly woman by hitting her over the head with a log," Cassell testified recently to Congress.

Cassell told a House Judiciary subcommittee that repealing "irrational mandatory minimum sentences" is one way Congress could improve the sentencing process.

Salt Lake City defense attorney Jerome Mooney, who represents Angelos, agreed.

"The more you impose minimum mandatory sentences, the more you impair the ability to impose justice," Mooney told The Salt Lake Tribune.

An appeals court upheld Angelos' sentence last year, but Mooney plans to ask the U.S. Supreme Court to review the case.

But minimum mandatory sentences are not the only problem with the justice system, said Cassell, who, as the new chairman of the Committee on Criminal Law of the Judicial Conference of the United States, the policymaking group for federal courts, now has more power to affect change.

His testimony focused on developments in sentencing since the U.S. Supreme Court issued a decision last year that made federal sentencing guidelines advisory, rather than mandatory.

In his March 16 statement to the House subcommittee, Cassell listed other steps that the Judicial Conference's Committee on Criminal Law thinks lawmakers could take, including:

l Reject a proposal to implement "topless" sentencing guidelines, which generally would allow defendants to be sentenced above a recommended range of years in prison but not below that range. Cassell said the idea "looks like a gimmick."

"They create a lot of uncertainty and a risk of litigation all over the country," Cassell told The Tribune.

l Give judges the authority to prevent profiteering by criminals, such as signing book deals to write about their crimes.

Cassell notes that a federal law on forfeiture of profits from crimes is modeled on a New York statute enacted in 1977 after serial killer David Berkowitz obtained a $250,000 book deal. In 1991, the U.S. Supreme Court ruled that this "Son of Sam" statute violated the First Amendment, leading to a consensus in the legal field that the federal law is almost certainly unconstitutional.

A solution would be for Congress to explicitly allow sentencing judges to order that defendants not profit from their crimes, Cassell told the subcommittee.

l Give judges greater latitude in awarding restitution.

Compensation currently is limited to certain categories, such as property damage and medical expenses, Cassell said. In a recent case, he was unable to order restitution for the time that victims of an identity thief lost straightening out their credit, the judge said.

He also cited a California case where an armed felon was fleeing from police and crashed into several cars. An appeals court reversed an order that the defendant pay restitution to the vehicle owners because he was convicted of being a felon in possession of a firearm - which, the appeals court noted, was not the crime that hurt his victims.

l Expand a judge's ability to monitor dangerous defendants.

Jurists can impose only up to five years of supervised release on most offenders after their release from prison, Cassell said. Allowing longer supervisory terms would better protect the public from repeat offenders, he said.

l Preserve judges' primary role in deciding appropriate sentences.

Cassell encouraged Congress to move slowly in making any changes in reaction to the U.S. Supreme Court decision that made sentencing guidelines advisory.

Appeals courts need their current authority to ensure that judges have applied the law correctly in meting out punishment, he said. However, judges still should make factual determinations - such as whether an offender is truly remorseful and what physical and emotional consequences the victim suffered - in seeing that justice is done, he said.

"Judging generally, and sentencing particularly, should never become an act of bureaucratic administration," Cassell said. "Sentencing is a quintessentially human event - a sentencing judge literally looks a defendant in the eyes when imposing a sentence. There would be a very high cost to our system of justice if responsibility for sentencing were simply shuttled off to appellate judges to be done on the basis of paper pleadings."

pmanson@sltrib.com

Tweaking the federal justice system

U.S. District Judge Paul Cassell of Utah recently asked Congress to:

* Reject "topless" guidelines that would allow judges to impose sentences above the recommended range but not below it.

* Eliminate "irrational" minimum mandatory sentences.

* Give judges the tools to ensure that criminals cannot profit from writing about their crimes.

* Give judges greater authority to award restitution.

* Lift limits on how long judges can monitor dangerous offenders after their release from prison.

* Preserve judges' primary role in deciding appropriate sentences.

* Restore the federal boot camp program.

* Reduce disparity between sentences for distributing crack cocaine and for distributing powder cocaine.

* The entire text of Cassell's recommendations to the Subcommittee on Crime, Terrorism and Homeland Security of the U.S. House of Representatives Committee on the Judiciary can be read at: http://www.uscourts.gov/testimony/Cassell031606.pdf.