10 January 2006

Conservatives Embrace Kafka

Conservatives have not, in fact, embraced the dark satire of Bohemian writer Franz Kafka. They have done something worse. They have mistakenly come to the conclusion that his novels represent a model for an ideal society.

The Angelos Case

Consider the case of 27 year old Weldon Angelos, was sentenced to 55 years in prison for distributing a total of 24 ounces marijuana spread on two different occasion for $350 each, while having a gun on his person that was not used or displayed, and a third count of having guns in his home illegally. This sentence was upheld yesterday by the 10th Circuit Court of Appeals. The original sentence was imposed by a trial court judge who knew that the sentence was grossly unjust and improper but felt compelled by mandatory minimum sentence laws to impose it anyway (please read the trial court opinion linked). The mandatory sentence for the first offense was five years, and once he was convicted of the first offense, the mandatory offense for the second and third offenses were twenty-five years each, and the sentences had to be served consecutively.

Why is this wrong? You don't have to be a soft on crime wuss to see that this kind of sentence doesn't make sense.

Punishment For Uncharged Conduct

One problem with this sentence is that it was affirmed based upon crimes that neither the jury nor the trial court judge found was committed.

[T]he appeals court judges said they agreed with prosecutors who said the sentence was appropriate for Angelos' convictions and for other behavior involving drugs, guns and gang activity that prosecutors had evidence of, but did not charge him with.

The notion that people should be sentenced based upon crimes for which they have not been convicted is, alas, not unique to the 10th Circuit Court of Appeals. Indeed, it is even allowed in the case of crimes for which someone is acquitted.

The U.S. Supreme Court held in the case of U.S. v. Watts 519 U.S. 148 (1997), that a federal criminal sentence for another crime may be enhanced based upon charges of which a jury has acquitted the defendant, if the judge believes that a "preponderance" or "reliable" evidence convinces the judge that the crime was committed, and the other charges are "relevant" to the current case. Only Justices Stevens and Kennedy dissented, and Kennedy didn't dissent on the merits. (Hat Tip to Talk Left commentator Peter G for the Watts case discussion).

Common sense tells us that people are supposed to be sentenced for the crimes of which they have been convicted, not based on other crimes for which they have been acquitted or with which they have not been charged. Juries exist, not just to distinguish the totally innocent from those who are guilty of something, but to determine for which crimes someone should be punished. To do otherwise is to make a mockery of due process. Why have the American Cadillac criminal justice system due process protections, if you are simply going to allow them to be grossly circumvented in a sentencing hearing?

A Flawed Habitual Offender Provision

Habitual offender sentences such as the ones applied in the Angelos case can make some sense in a case where an individual has been convicted, spent many years in prison where he has been given an opportunity to meditate on the gravity of his crimes, and gone out into the world on notice that another mistake puts him at grave risk of a draconian sentence (although even then the idea is flawed). This is how the habitual offender enhancements in Colorado's drug laws are drafted. But, it makes no sense at all, when an individual such as Angelos is charged with three offenses, that are part of the same overall pattern of activity (low level drug dealing over a short time period), at the same time.

Habitual offender laws only have a deterrent effect on people who know that they are prior offenders, not on people who have no prior convictions when they are arrested.

More Serious Crimes Should Have Longer Sentences

Finally, there is nothing soft on crime about wanting serious crimes to have longer sentences than less serious crimes. Indeed, to suggest any other approach is insane. But, insanity seems to be a regular affliction of Congress.

You can do many things that anyone would agree are far more serious than two pot deals conducted while secretly carrying a weapon, and having some more guns at home, and face sentences far shorter than fifty five years. This sentence is worse than that of corporate crooks who defraud the elderly out of millions of dollars, and people who commit violent crimes like rape, armed robbery, kidnapping and unaggravated murder.

Reasonable people can differ about the seriousness of making a couple of modest sized marijuana deals while secretly having a gun on your person. Maybe it shouldn't be a crime at all, maybe it should be about as serious as a shoplifting incident involving the same amount of money, maybe it should be a serious as a burglary. But, reasonable people ought to be able to agree that simply having a gun on your person is less serious than brandishing the gun or firing it or harming someone with it. Likewise, reasonable people ought to be able to agree that a modest sized marijuana deal is less serious than a rape, an armed robbery in which guns are brandished and millions of dollars are stolen, a kidnapping in which the victim is harmed by not killed and a large ransom is collected or an unaggravated murder.

This grossly disproportionate sentence imposes a huge cost on society. It will cost taxpayers approximately $1.2 million dollars, plus any inflation in imprisonment costs, to imprison Angelos for the next 41 years, which assumes that he gets full credit for good time in prison, to punish an offender whose crime did less harm to society than a typical car theft or strong arm mugging. The average sentence for murder in the United States is under ten years.

The impression that even minor drug offenses can put in in prison for life also puts cops at risk. You might not be willing to risk kill a cop to keep yourself out of jail for a few years. But, if the word gets out that even a minor marijuana bust results in life in prison, many minor dealers will consider it worth taking the risk to kill a cop to prevent themselves from being apprehended.


Indeed, the room for dispute about what is reasonable raises a serious federalism question. Why should the federal government be prosecuting and setting sentences for intrastate drug deals and gun possession at all? This case could easily have been prosecuted by state prosecutors in a state court. These cases happen every day. It isn't legal to conduct marijuana deals involving 8 ounces of pot in any state of the Union. Indeed, there is a very reasonable likelihood that the marijuana in this case was grown in the state where it was sold (marijuana is a hearty plant and also often grown indoors). The gun was also likely procured in the state where it was found. The prosecutors certainly didn't prove any interstate activity in this case.

In Colorado courts, theft of $350 is a second degree misdemeanor punishable by up to twelve months in jail, as is unlawfully carrying a concealed weapon. Possession an illegal weapon (Angelos's third conviction) is a first degree misdemeanor in Colorado, punishable by up to eighteen months in jail. In Colorado courts, the drug dealing offense Angelos was convicted of is a class 4 felony in Colorado (which can be aggregated to a class 3 felony only if "the violation is committed subsequent to any prior conviction in this or any other state."), punishable by two to six years in prison followed by three years of parole.

Thus, the worst case scenario for Angelos under Colorado law would have been fifteen and a half years, and a judge could have sentenced him to as little as five years in prison (allowing the unlawful carrying of a concealed weapon charge and drug dealing charge to be served concurrently as they arose out of the same incident). As a first time offender, Angelos would have been unlikely to receive a maximum sentence. Yet, Angelos (barring U.S. Supreme Court intervention or clemency from President Bush or a subsequent President) will serve a sentence three and a half times as long as the maximum sentence in Colorado. (To be clear, this was not a Colorado case, it was in Utah, but a similar case easily could happen in Colorado, and Utah's laws are also not as draconian as federal law in a case like this one.)

Bottom Line

If you want to control crime, the right way to do it, in a democratic society, is to establish a criminal justice system that reliably imposes sentences proportionate to the crimes for which defendants have been convicted.

A flawed system pushes the players, prosecutors, defense attorneys, judges and probation departments alike, into a culture of corruption to secure some kind of justice. The prosecutors aren't pressing this case because they really think Angelos needs to be in prison for 55 years, they are pressing this case in order to secure plea bargains in cases where guilt is questionable in future cases, allowing them to effectively circumvent the law and the judge and the jury in the system. We don't need to design the system to be corrupt to control crime. The vast majority of the time people obey the law, and even when they don't, go along with the criminal justice system, because the laws and the system that enforces it has moral authority. When we undermine it, we undermine respect for the system and make it less effective.

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