Life for a Pound and a Half of Pot: Cruel and Unusual, but Not 'Cruel and Unusual'

Jacob Sullum | January 13, 2006

This week the U.S. Court of Appeals for the 10th Circuit upheld what probably amounts to a life sentence for Weldon Angelos, a young Utah record producer and father of two convicted of selling a pound and a half of marijuana to a government informant. Although he had no criminal record, Angelos' sentence got ratcheted up to a mandatory minimum of 55 years because he carried a handgun in an ankle holster while making two deliveries and kept additional handguns at his home. He never drew a gun, let alone used it, but that doesn't matter under a federal law aimed at people who commit felonies while carrying or using guns. (If only someone could come up with a more effective way to separate guns from the drug trade...)

Upon sentencing Angelos in 2004, U.S. District Paul G. Cassell--a Bush appointee who is not exactly a bleeding-heart liberal--declared the penalty "unjust, cruel, and irrational" and asked President Bush to "commute Mr. Angelos' sentence to something that is more in accord with just and rational punishment." On appeal, the 10th Circuit found that the sentence was in accordance with the will of Congress and did not constitute cruel and unusual punishment, as 29 former judges and prosecutors argued in a friend-of-the-court brief.

[via the Drug War Chronicle]

Comments

|1.13.06 @ 11:38AM|#

(If only someone could come up wirh a more effective way to separate guns from the drug trade...)

Sue the gun manufacturers. They know that their products might end up in the hands of drug dealers but they make and distribute these dangerous items anyway.

Or did you have something else in mind?

|1.13.06 @ 12:43PM|#

311 lyrics that fit perfectly here

"the war on drugs may be well intentioned
but it falls f---ing flat when you stop and mention
the over crowded prisons where a rapists gets paroled
to make room for a dude who has sold
a pound of weed to me that's a crime"

|1.13.06 @ 12:46PM|#

as 29 former judges and prosecutors argued in a friend-of-the-court DId anyone lese think of that Monty Python sketch where the judge says "That's it, I'm off to SOuth Africa to do some real judging" (when they read this line?

|1.13.06 @ 12:47PM|#

as 29 former judges and prosecutors argued in a friend-of-the-court Did anyone else think of that Monty Python sketch where the judge says "That's it, I'm off to South Africa to do some real judging" when they read this line?

|1.13.06 @ 12:47PM|#

Maybe legalizing guns? Wait, hold on, I'll figure this one out.

|1.13.06 @ 1:05PM|#

So it's not cruel and unusual if Congress wants it that way? Do I have that correct? This sort of crap is enough to make me start wearing a "Stop Snitchin'" t-shirt. BTW, in Craze: Gin & Debauchery in an Age of Reason, it mentions how the Brits tried to ban gin a few times, with little success since the people were fond of their gin, and informants who snitched on speakeasies did so at risk of their lives. Everything old is new again.

DNAs for better People testing|1.13.06 @ 1:11PM|#

Or did you have something else in mind?

I think he was talking about some sort of reverse-osmosis filter system. I heard that DuPont was working on a semipermiable membrane that would allow pot to pass through, but not guns. It wasn't 100% efficient, and took a lot of power, but you ended up with only like one .22 per 1000kg of weed.

R C Dean|1.13.06 @ 1:25PM|#

For a long time I've thought that the legislatures are the most dysfunctional branch of government, but I've just about decided to give the judiciary the top (bottom?) slot.

In a lot of ways the judges have easiest job, Constitutional-governance-wise, but they are doing a fine job, almost without exception, of botching it.

The Constitution is made up of short, easy-to-understand words that are assembled, for the most part, in short, easy-to-understand sentences. Read and apply, you frickin' morons.

Dave W.|1.13.06 @ 1:30PM|#

RCD,

I don't think the court would have given the 55 year sentence absent the "mandatory minimum" imposed by Congress.

In other words, if the judiciary had been left to its own devices there would be no problem here.

However, the legislative decided to come in and tell the courts what to do. The appellate court had the difficult choice between obeying a specific instruction fom Congress or a vague instruction in the Constitution. The court made the wrong choice.

But, really, which branch is the bigger idiot here?

|1.13.06 @ 1:37PM|#

Don't know about you guys, but I'd take waterboarding and electrodes to the balls if it got me out quick instead of 55 years of prison rape.

I just can't understand this country.

|1.13.06 @ 1:50PM|#

No, Ira, you don't understand. The "waterboarding and electrodes to the balls" are in addition to the 55 years of buttbuddies, not instead of.

|1.13.06 @ 2:01PM|#

I hate to say it, but I don't think you can reasonably call a long sentence, even an absurdly long one, "cruel and unusual". Cruel and unusual punishments are cruel and unusual no matter what the offense. We don't allow such punishments as the amputation of thumbs for any crime, even the most heinous ones. We do, however, have very long sentences for the worst crimes.

The shock and dismay here is the application of such a long sentence to an obviously minor offense (or something that shouldn't be an offense, to be blunt). However, judges are supposed to examine state and federal constutitionality and precedence, not make evaluations as to whether the legislature has prioritized criminal punishments in a sensible way. If judges go there, they really are making up law.

|1.13.06 @ 2:13PM|#

The federal government needs the collective shit beat out of it.

|1.13.06 @ 2:15PM|#

Nonsense.

Drugs should be legal, but if they ARE illegal, and they are, then locking up professional dealers is not cruel and unusual.

This guy sold a pound and a half of weed, and he showed the professional foresight to carry a gun. This wasn't some stoner sharing his stash.

First offense, blah, blah blah. Congress decided that carrying a gun discriminates the professional dealers from the casual stoners. Frankly, I think that makes sense, even if it's imperfect.

To reiterate: Drugs should be legal. If they are not, then it's nice if Congress can differentiate the dealers from the users. This guy is clearly a dealer.

R C Dean|1.13.06 @ 2:27PM|#

In other words, if the judiciary had been left to its own devices there would be no problem here. However, the legislative decided to come in and tell the courts what to do.

But the judiciary is supposed to make an independent determination of whether the sentences prescribed by Congress are Constitutional. The fact that Congress mandates it doesn't make it Constitutional.

Drugs should be legal, but if they ARE illegal, and they are, then locking up professional dealers is not cruel and unusual.

Not necessarily. Jaywalking is illegal, too, but nobody thinks that a 55 year sentence for jaywalking would be anything but "cruel and unusual."

I hate to say it, but I don't think you can reasonably call a long sentence, even an absurdly long one, "cruel and unusual".

Should there be no Consitutional protection whatsoever against absurdly and irrationally disproportionate sentences? I think there has to be some proportionality between the offense and the sentence.

The "cruel and unusual" test is akin to asking whether a given sentence "shocks the conscience of the court" (another legal standard, BTW). Some sentences do, and should be refused by the courts on Constitutional grounds.

|1.13.06 @ 2:29PM|#

Cruel maybe, but unusual? Not anymore.

55 years for a first offense, even for a dealer with a gun, does seem way out of proportion to the crime to me, but then I'm not a member of the government and thus can still rely on common sense.

Dave W.|1.13.06 @ 2:36PM|#

That wasn't the question, RCD. The question was who is the bigger idiot:

- the group who gives the mandates; or

- the group who fails to ignore the mandates based on some flowerly language in the Constitution.

So which one? I'm saying the mandate-givers and so should you.

amazingdrx|1.13.06 @ 2:49PM|#

Where is jury nullification?

Can't the defense argue that since the defendant will get life (unjustly) if convicted, then the jury ought to nullify the injustice by finding him not guilty?

Since this individual wrong was not corrected on appeal, it is clear that some problem exists in the statute involved.

And the Supreme Court needs to find that law to be unconstitutional refarding it's application in this...and probably 10s of thousands of similar cases. The legislature then has the option to go back and readdress it.

Declare the whole drug war unconstitutional while you are at it? Please?

Hmmm, with Roberts, Scalia, Thomas, Alito..?? On the court? Not bloddy liakely.

|1.13.06 @ 2:50PM|#

There's another problem here. Skipping past the fact that drugs and guns should be legal, judges should actually judge, and Congress should be functional.

What about the role of the police(FBI, whatever) in matters like this? It's not 55 years for a first offense. It's five for the first, 25 for the second, and again for the third. What the police have done here is intentionally wait for three crimes to be committed before making an arrest. This effectively gives them the power of determining the sentence.

Why not bust him on the first offense? Why stand by and wait for three offenses? The missing element here is that there must (should?) be a conviction between the offenses.

We have cops out there with full knowledge of a crime that aren't making arrests! Then, because of this failure, the sentence of the victim is jacked up.

Imagine applying this philosophy to a parking ticket ( in a residential area where the offense is likely to repeat ). Just let the guy park there night after night and whammo! A $50 fine turns into $5000! Nice payoff for failing to enforce the law.

James Anderson Merritt|1.13.06 @ 3:30PM|#

The "will of Congress" must be broken, then. With so many rulings lately deferring to "Congress' plenary power" to do this, and "the will of Congress" to do that, the people need to reassert their authority over Congress. Fire incumbents and replace them with officials pledged to end this ridiculous and costly prohibition.

Some may scoff at the suggestion of an electoral revolution, and especially the notion of firing incumbents "just because." On the other hand, the beltway needs to fear the people; the people need to show who is boss in this country; nobody's job is secure, and this needs to be demonstrated for politicians en masse. It sure beats the violent and bloody type of revolution that is inevitable, if ever the population in general gets the idea -- really gets it -- that the government is out of control.

Going along with the drug war, and certainly promoting it, must be seen as a sure way to get fired in Washington. Pledging to end it (and following through) must be seen as the only way to have a chance at getting hired and staying in office.

Of course, the same could (and should) be said about that "other" war, the one we're actually sending soldiers to wage.

|1.13.06 @ 3:32PM|#

http://deseretnews.com/dn/view/0,1249,595091476,00.html

A rapist of a 10 yr old girl would get 135 mths compared to the 757 mths this got. Assuming the article is correct that is sick, sick, SICK!!

R C Dean|1.13.06 @ 3:45PM|#

The question was who is the bigger idiot:

- the group who gives the mandates; or

- the group who fails to ignore the mandates based on some flowerly language in the Constitution.

So which one? I'm saying the mandate-givers and so should you.

I used to think that. But judges have a specific and narrow responsibility that they seem to have completely abrogated, collectively.

Plus, my expectation of legislators are lower. I mean, Ted Kennedy? Rick Santorum? Joe Biden? Please. No one could possibly expect these clowns to act in a responsible manner. But judges, geez, you expect a little better.

|1.13.06 @ 4:13PM|#

Should there be no Consitutional protection whatsoever against absurdly and irrationally disproportionate sentences? I think there has to be some proportionality between the offense and the sentence.

There's nothing in the Constitution that bars dumb laws. A legislature has the prerogative to determine what sentences are proportionate to a given offense, whether it does a good job or not in doing so. If the law defining the act as a crime is itself constitutional, I don't know of any justification for a judge to overrule the mandated punishment.

As for the specific issue of "cruel and unusual", the only way the punishment could be deemed such is if the judge declares that 55 year imprisonment for any crime is "cruel and unusual".

|1.13.06 @ 4:15PM|#

(Of course, aside from the constitutionally-defined crime of treason, why the Hell is Congress writing any criminal laws?)

|1.13.06 @ 4:40PM|#

Hmmm, with Roberts, Scalia, Thomas, Alito..?? On the court? Not bloddy liakely.

Yeah, like Stevens, Ginsberg or Breyer are gonna vote to ed the WOD? Fucking eh.

LOL

|1.13.06 @ 4:46PM|#

"Can't the defense argue that since the defendant will get life (unjustly) if convicted, then the jury ought to nullify the injustice by finding him not guilty?"

I'm not sure what the rules are in Federal court off the top of my head, but virtually all states specifically prohibit defense counsel from arguing jury nullification.

|1.13.06 @ 4:52PM|#

SR,
Sadly you are correct. Many Judges and council also state that you must make judgement ONLY on the evidence of the case and not the justness of the law. Load of hooey, but most people don't know any better and those who do usually getted offed during voi dire.

Timothy|1.13.06 @ 4:57PM|#

DrX:

Votes the right way in Raich: O'Connor, Thomas, Reinquist.

Votes the wrong way: Everyone else.

So, Thomas at least needs to come off of your list. Roberts and Alito are unknown on that particular question, but whether a 6-3 loss or an 8-1 loss, it's still a loss. I'll also note that Breyer, Ginsburg, Stevens, Kennedy and Souter were on the wrong side of Kelo.

|1.13.06 @ 5:37PM|#

Eric .5b,
(Of course, aside from the constitutionally-defined crime of treason, why the Hell is Congress writing any criminal laws?)

This is a question I have pondered for a while. What give congress the ability to create criminal law in the first place? It can govern taxes and treaties and other higher governmental stuff but nowhere in the constitution is the actual ability to make criminal law granted. That or I am wrong.

|1.13.06 @ 7:39PM|#

As I've said before, the constitution allows punishment to be cruel; it allows punishment to be unusual.

Only punishment that is both cruel and unusual is prohibited.

|1.14.06 @ 12:41AM|#

NoStar,

Well, that depends on the meaning of the word "and" in that particular sentence. If I say that I like chocolate and vanilla ice cream, does that mean I only like ice cream that contains both? No, it means I like chocolate ice cream and I like vanilla ice cream.

Likewise, one could interpret the prohibition on "cruel and unusual punishments" to mean that cruel punishments and unusual punishments are both forbidden.

amazingdrx|1.14.06 @ 3:14AM|#

Well my argument was that the corporate friendly justices would never vote to outlaw the war on drugs.

A war started to insure that corporations that sell legal drugs..nicotine, alchohol, and prescription drugs are protected from the sale of drugs, like pot, that would destroy the profit potential of the corporate drugs.

I guess I see corporations and corporatist government as the real threat to liberty. But libertartians see corporatism as the best way to lift the heavy yoke of government off their backs.

|1.14.06 @ 5:46AM|#

Hey kids, you wanna get high?

amazingdrx|1.14.06 @ 1:14PM|#

Don't forget to bring a towel.

|1.14.06 @ 1:51PM|#

Amazing,
The only way the Courts will "outlaw" the war on drugs is if they adopt a far meatier interpretation of the Commerce Clause (which has been rendered meaningless since the New Deal). The only Justice who has expressed any willingness to go there is Justice Thomas. None of the left leaning Judges are going to go anywhere near this issue, because the reasoning required to find the Federal War on drugs unconstitutional would undermine the very foundation of the Welfare State. And your historical analysis concerning the origins of the drug war needs some work. Drug companies don't profit from the war on drugs. Illegal Cartels do. If drugs were legalized big pharma would have a whole new profitable product line. Drug Prohibition began and is sustained by simple American puritanism.

amazingdrx|1.14.06 @ 3:02PM|#

I kind of favor an analysis that ferrets out the underlying principles, follow the money, to quote Nicky Santoro "...it's always the dollars".

Or to paraphrase Karl Marx.. religious and moral principles are created to justify economic realities, culture follows economics.

Legalized pot would cut into the monopoly that exists in the legal drug bizz, just the same way electric cars would cut into the infernal combustion vehicle monopoly.

It's a constant effort, appointing people who cooperate with monopoly corporate power in high places. Real conservatives would recognize that, and be wary. Neocons use it.

|1.14.06 @ 4:13PM|#

So Roberts, Scalia, Thomas and Alito are more attached to corporations and corporatist government than Stevens, Ginsberg or Breyer? Dream on, amazingdrx.

|1.14.06 @ 4:43PM|#

Suppose Canada lagalizes pot and someone in the US, facing a sentence like this for a "crime" like this, escapes to Canada. If the escapee seeks asylum on grounds that he would face an extremely long sentence for breaking an unjust law if extradited, would the Canadian government be likely to grant it?

allan|1.14.06 @ 5:47PM|#

"When law and morality contradict each other, the citizen has the cruel alternative of either losing his moral sense or losing his respect for the law." - C. F. Bastiat

amazingdrx|1.15.06 @ 5:49AM|#

"Dream on"

The fellers who appointed a US president who serves the interests of multinational oil companies and their OPEC allies over and above the interests of we the people of these US of A?

I'd say Scalia and his fellow neocon justices are good candiates for servants of corporatism. Yes.

The liberal faction still on the court generally uphold the constitutionsal rights of individual citizens, over the rights of corporate "citizens".

The neoconman talking point that corporations are your friend, takes real faithbased gullibility to fall for. Be proud, you ARE a faith filled true believer!!

amazingdrx|1.15.06 @ 8:28AM|#

http://stopthedrugwar.org/chronicle/418/alito.shtml

"Alito seems likely to be confirmed as the next US Supreme Court justice. If past rulings are an indication of what is to come, then don't expect the drug war to find much in the way of checks and balances from this nominee. The Commerce Clause could be an exception, and if so it could be a big one. But the hearings leave observers able to do little more than speculate about that."

Drug War Chronicles on Alito.

How exactly does favoring state's rights over federal power help protect indivual's rights from encroachment from the cabal of corporatist government and it's corporate "citizen" constituents?

Dissing the commerce clause is a veiled attempt to remove regulation over corporations, nothing more.

If, for instance, Texas enforces no environmental or work place safety laws, then large corporate capital investment is drawn to that state. Workers in states that DO enforce regulations lose their jobs, and Texas citizens are exposed to toxins and unsafe work places.

This is an ongoing assault on the rights of indivual citizens. It serves nothing but corporate power unlimited.

|1.15.06 @ 12:11PM|#

Suppose Canada lagalizes pot and someone in the US, facing a sentence like this for a "crime" like this, escapes to Canada. If the escapee seeks asylum on grounds that he would face an extremely long sentence for breaking an unjust law if extradited, would the Canadian government be likely to grant it?

Countries generally do not extradite people for acts which are not offenses in that country. However Canada's proposed decriminalization covers only simple possession, not buying or selling (although it confuses me how one can possess something without having first bought it*). Even the most liberal countries have not decriminalized "trafficking".

But, on the other hand, many countries will not extradite accused murderers to the US without an assurance that they will not be executed.

*I suppose you can grow your own, except, whoops, most countries criminalize growing your own.

|1.15.06 @ 12:26PM|#

The fellers who appointed a US president who serves the interests of multinational oil companies and their OPEC allies over and above the interests of we the people of these US of A

What, instead of the other candidate who would have served the interests of multinational oil companies and their OPEC allies over and above the interests of we the people of these US of A?

Like I said, dream on.

amazingdrx|1.15.06 @ 2:34PM|#

Yeah Gore would've been a good Saudi like duuhbya is. he would've held lands with his Saudi uncles just like the prezz. and counseled with Bandar Bush after the day after 911, telling him that if the terror suspects would not talk, he would turn them over to the saudis. Hehehey.

You're a funny guy dreamer.

|1.15.06 @ 10:23PM|#

Thanks Issac that helped.

|1.16.06 @ 4:24AM|#

why are there only lame trolls on hit and run? we used to have good trolls. women like juanita, who filled us with laughter and joy. the amazing dr. x, whose medical credentials - i suspect - are as flimsy as his moniker, just isn't doing it for me right now.

amazingdrx|1.16.06 @ 10:46AM|#

" women like juanita, who filled us with laughter and joy"

Wing nut harrassment tends to make sane people seek other venues. Especially women subjected to sexual harrassment.

The kind of harrassment favored by wing nuts like you that never, ever get to talk to any real women.

Why is it that wing nuttery and involuntary celibacy seem to go hand in hand? Nature's way of preventing the reproduction of wing nuts, thereby insuring survival of the fittest?

That's my guess.

Amy Phillips|1.17.06 @ 3:39PM|#

BG:
There's actually a case in the courts in Canada right now asking that same question. Renee Boje is a U.S. citizen who was arrested with Peter McWilliams and Todd McCormick in 1997 and charged with helping them to cultivate medicinal marijuana (she took pictures for their research and helped water some plants a few times). She faces a mandatory minimum sentence of 10 years to life, and when her lawyer told her he couldn't help her, she fled to Canada. She has argued in Canadian court that she should not be extradited because the sentence is cruel and unusual, but has lost that argument in front of several successive Canadian courts. She is now awaiting a decision on cert from the Canadian Supreme Court.

There is some reason for hope. In 1987, the Court ruled that a 7 year mandatory minimum for cocaine trafficking was cruel and unusual under the Canadian constitution. Boje's supporters hope that Canada can become a haven for drug war refugees much as it did for draft dodgers during the Vietnam War. However, the Canadian government has expressed a desire not to interfere with America's drug war, no matter how misguided they find it.