Wednesday, February 04, 2015


Upcoming, and the Daily Beast

Next week is going to be fascinating.  I'll teach on Monday, then head off to DC & Philadelphia for a series of events relating to criminal law.  On Tuesday, I'll be at a meeting of law enforcement officials at the Vera Institute of Justice, then on Wednesday I'll head up to Penn Law to debate Judge Richard Sullivan (SDNY) again on the issue of narcotics sentencing.  The moderator will by my mentor Judge Jan DuBois (EDPa, for whom I clerked 25 years ago), at an event organized by our own CTL. 

Finally, on Thursday I'll be back in DC to speak at an event discussed yesterday in the Daily Beast-- a collaboration with the Koch Brothers and FAMM in support of commutations for people like my client Weldon Angelos (who is pictured above).   Here is what Tim Mak had to say in his article:

Weldon Angelos could have hijacked a plane and spent less time in jail. But due to mandatory sentencing laws, the father of two was sentenced to 55 years in jail for selling pot – a term so long even the judge who gave it to him protested its injustice.

A group backed by the Koch brothers agrees, and is now fighting to get him out of prison.

Angelos is an extreme case: even though the crime was considered non-violent, Angelos carried a firearm during a series of marijuana sales to a Salt Lake City police informant – so federal mandatory minimums required that he be put in jail until he’s 80 years old.

Judge Paul Cassell protested the sentence when he was forced to make it in 2004, a move he told The Daily Beast he considers “the most unjust, lengthy sentence that I had to hand down.”

At the time of the trial, Cassell noted that Angelos’ sentence exceeded the minimum required for an individual convicted of airline hijacking, detonating a bomb intended to kill bystanders, and the exploitation of a child for pornography.

Angelos is now 35 years old and has spent some 11 years behind bars.

Judge Paul Cassell told The Daily Beast he considers the mandatory sentence, “the most unjust, lengthy sentence that I had to hand down.” He has more than 40 years left to go. Even though his crime was non-violent, parole is not an option at the federal level.

His only hope for relief from his sentence is an order by the president.

“If we’re going to deprive someone of liberty, and deal with the high cost of incarceration, it better solve a problem. And in this case, it doesn’t solve any problem,” argued Mark Osler, Angelos’ lawyer, who filed a clemency petition on his behalf in 2012.

This is where the Koch brothers come in.

The case is being highlighted by Koch-backed group Generation Opportunity, which targets millenials, in a broader campaign to press for criminal justice reforms this year.

They will kick off the campaign with a documentary highlighting Angelos’ predicament, premiering at Washington, D.C.’s Newseum next week.

As you know Mark, I have been skeptical regarding a lot of this for years. In my mind. carrying an illegal firearm in the commission of a crime is a violent act. These are the types of tougher gun laws that I tend to support.

Moreover, a person who is carrying a gun and selling drugs strikes me as a person actually prone to violence and a menace to society; therefore, incarcerating that person through the period of his life in which he is most likely to visit his violent proclivities on society is not as much of an injustice to me as it is to you. I always wonder how many innocents were not bullied or injured or worse by this person over the period of time he was in prison?

Having said that, I am coming around to some extent to this problem of over-criminalization and disproportionate sentencing. I am listening and hoping for something modest and practical and just to come out of this attention to this troubling question.

But… look at this case. Is that crime really worth 55 years? The question isn't whether it is a crime, or should be punished, but one of proportion.
I hear you.

55 years seems like a long time. I remember when people once were sentenced to 100s of years of prison, which always struck me as not just odd but totally detached from reality. I always imagined that there were nuances like parole and other early release protocols in play.

As I say, I am now in a place where I am ready to listen to this conversation about proportionality. Is 25 years better than 55? Maybe. Is 15 years of real time enough? Probably.

But I am not ready to vacate my common sense observation that when someone is carrying a firearm illegally and in commission of another crime on top of that--this is serious business--and the perpetrator is, in fact, a violent criminal.
The problem about calling a crime with no violence a "violent crime" is that then we lose the ability to distinguish between this and a situation where someone is shot, or shot at. Violence has a meaning, and it has a physical component. When we lose that, we lose a level of distinction that is important-- between a person who is willing to shoot and someone who is not. The former is simply more dangerous than the latter.

I hear you.

On the other hand, walking around the world armed is a step toward violence that is not incidental. That, compounded with the willingness to violate other laws, places transgressors in an entirely different category from non-violent offenders. If you are carrying a gun while you go about your daily business in the underworld economy--it is not an illogical assumption that you are prepared to use your gun in a violent way. Non-violent offenders should not carry illegal firearms. Expecting us to give them the benefit of the doubt and make a judgment that they were NOT prepared to use their weapon in a violent way--really asks for too much forbearance.

Again, I am making a general common sense point (just as proportionality is a common sense point). I wish you well in this campaign. I wish Mr. Angelos well. My expectation is that he and many others in his situation will receive mercy. And who can be against mercy? My hope is that he and others saved by grace will play a positive role in our society going forward.
Yes, carrying a gun while committing a crime (better leave out the "illegal" part, since under current laws someone like Weldon who had no criminal record could have a gun legally in their car) should be punished more harshly than the simple version of the crime. That still doesn't make it a violent crime. Violence makes it a violent crime. These distinctions matter if we want to maintain rational proportionality. Words-- especially descriptive words-- need to have real and discrete meanings if they are delineating the lines where we deprive people of liberty.
My sense was that Mr. Angelos was NOT carrying his firearm legally. If I am wrong on that fact, I stand corrected.

Your point about the importance of descriptive words certainly resonates with me. Surely, there ought to be a legal distinction between someone who carries a gun while in commission of a crime and someone who uses a gun in the commission of a crime.

Point Taken.

Notwithstanding, in general, to characterize a person carrying a firearm in the commission of a crime as a non-violent offender continues to strike me as misleading.
Osler and Farmer:

Carrying a gun in the commission of an otherwise non-violent felony doesn't appear to be obviously violent or non-violent--perhaps because violence isn't what we're really getting at, but aggravation.

Sounds to me like we need to think of a descriptor here that doesn't rely on any variant of the word violence.
Final Thoughts.

1. Well said, CTL.

2. Rather than a legal definition (as I am not an attorney or law maker), I was speaking as a citizen concerned with justice and the big picture. Sometimes words and arguments are designed to shade the truth and offer a much narrower picture. I am for people of good will. I am for justice. I am for second chances. I am for mercy. Period.

But I am also wary of the violent and anti-social world in which people engage in an underworld economy and count on firearms as tools of the trade. Crossing that line is a big deal. It is not an unpardonable sin--but it is an action that presents dreadfully serious problems. I am just hoping we don't lose sight of how serious those problems are as we make this reasonable correction as a community. Let's be sure not to "over correct."

3. Perhaps most importantly, I would like to praise you, Mark, for your compassion and your hard work and your pure heart. You and a small cohort of like-minded influential people have really moved the world on this issue. I applaud your efforts and your intentions.
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