Utah Judge Rejects U.S. Sentencing Rules

SALT LAKE CITY (AP) -- For the second time in eight days, a court has declared sentencing guidelines unconstitutional -- this time in Utah, where a federal judge has ordered that dual sentences be determined for certain defendants until the U.S. Supreme Court sorts out a dilemma 15 years in the making.

U.S. District Judge Paul Cassell on Tuesday in a child sexual exploitation case declared that federal sentencing rules are unconstitutional given the high court's ruling last week in a Washington state case.

That case was a 5-4 decision in which the court held only juries, not judges, may lengthen prison sentences beyond the maximums set out in state sentencing guidelines. The case applied specifically only to Washington, but has thrown courts into turmoil around the nation as prosecutors and judges tried to figure out how to handle cases immediately before them.

Three days earlier, on June 21, a federal judge in Boston declared federal sentencing guidelines unconstitutional in a series of prison terms meted out to five drug-case defendants. U.S. Judge William Young asked the 1st U.S. Circuit Court of Appeals to strike down the sentences and return them to lower courts for new hearings.

Cassell, however, ruled that the Utah federal court will announce two sentences at each hearing: the sentence the court would impose if the federal guidelines are considered unconstitutional, and the sentence the court would impose if the guidelines stand.

Cassell also ordered the U.S. Attorney's Office for Utah to file additional sentencing pleadings, and to "feel free" to raise any concerns about the orders as soon as possible.

Melody Rydalch, spokeswoman for U.S. Attorney Paul Warner, said Warner has asked the Department of Justice not only what to do in the immediate case but to advise on national standards in light of the rulings.

Cassell's ruling may have been the first shot fired in a federal sentencing revolution, University of Utah law professor Erik Luna said Wednesday.

"I hope this signals the death knells for the guidelines," said Luna, calling them "abysmal and odious."

In the Washington case, the Supreme Court invalidated a 7-year prison sentence imposed four years ago against Ralph Howard Blakely II, who kidnapped his wife and drove her to Montana in a coffin-like box. The high court ruled that only a jury, not a judge, can sentence someone to more prison time than what is set out in state or federal sentencing guidelines.

Last Friday, federal prosecutors in Philadelphia postponed the sentencing of an anti-abortion activist once on the FBI's most-wanted list because of the murkiness of the Blakely ruling, which appears to give defendants a right to demand that juries determine beyond a reasonable doubt every fact that could lengthen their sentences. On Tuesday, a federal judge in Charleston, W.V., postponed several sentencings amid the confusion.

Cassell's ruling came in the Tuesday sentencing of Brent Croxford, a South Jordan, Utah, man convicted of taking sexually explicit nude photos of his eight- or nine-year-old adoptive daughter and his former foster daughter and putting them on the Internet. Croxford entered into a plea agreement and was scheduled for sentencing in April 2003.

That month, Croxford apparently attempted to commit suicide and underwent psychological evaluation in Springfield, Mo. In February 2004, Croxford pleaded guilty to a single count of child sexual exploitation.

In his ruling, Cassell offered up a detailed primer on the convoluted mathematical formulas federal prosecutors and judges employed to determine Croxford should be sentenced to 151 to 188 months in prison -- a cascade of addition and subtraction where, for example, the age of the victim and her relation to Croxford was offset by Croxford's willingness to admit his crime, suicide attempt and lack of prior criminal convictions.

Then came Blakely, the third and strongest in a line of Supreme Court rulings affecting sentencing guidelines in which even Justice Sandra Day O'Connor called "unsettling."

Cassell ultimately sentenced Croxford to 11 years in prison -- 19 months less than the federal guidelines mandated as a minimum.

He wrote that his ruling was an effort to avoid "havoc" and to continue to address the 1,000-case backlog pending in the Utah district alone. Noting that the U.S. Justice Department should have the opportunity to file a motion to reconsider his findings once Attorney General John Ashcroft has formulated a position, Cassell said he would hold a hearing on Aug. 2 in Utah to consider a United States response.

The challenge to Ashcroft is being met with a certain amount of glee by those who believe Ashcroft's directive last summer to U.S. attorneys across the country to report to Justice any judges who handed out sentences lighter than mandated under the federal guideline system, Luna said.

Brigham Young University law professor Michael Goldsmith, who served on the U.S. Sentencing Commission from 1994-1998, said Congress' passage last year of a law that drastically limited the authority of federal judges to depart from the guidelines has drawn considerable criticism from angry jurists.

"Congress has said, 'We don't trust federal judges,' and directed the sentencing commission to come up with new ways to limit judges," he said.

Goldsmith said that perverted the original intent of the guidelines, which Congress passed and President Reagan signed in 1987 in an attempt to eliminate subjective disparities in sentences.

Luna pointed to the original sponsors of the guidelines -- Sens. Strom Thurmond, Orrin Hatch, Ted Kennedy and Joe Biden -- as evidence of the original good intentions. But to call the guidelines anything but mandates now, Luna said, is Orwellian. "They are mandates," he said.

Cassell noted that while criminal defense attorneys and advocates might applaud his ruling, in the long run it could be bad for defendants if Congress responds by imposing more minimum mandatory sentencing laws rather than allow judges sentencing leeway.

And that's why it was important, Luna said, that someone like Cassell -- considered a conservative, pro-death penalty, pro-victim rights judge -- take the initiative.

Cassell "has the advantage of being able to issue an opinion like this without having the law-and-order wing of conservative America screaming bloody murder," Luna said. "You cannot assail this person as some kind of activist liberal judge."

(Copyright 2004 by The Associated Press. All Rights Reserved.)

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