Search results for "cassell"

Paul Cassell Reflects:

The Deseret Morning News has a fascinating profile of Paul Cassell, who recently resigned his district court judgeship to return to academia. Just a taste:

  Cassell said he found himself questioning some laws at each turn. “I felt like it was proper judicial role to ask questions, even if we weren’t necessarily charged with fixing the problem,” he said. But he wanted to do more — he wanted to make a change. Being a federal judge, he couldn’t do that.
  “One of the frustrations about being a trial court judge is that you never set broad principles of law; of course, that’s reserved for the appellate courts. … When I was there for 5 1/2 years, I began to think that maybe I would have more effect in moving the law in a way that I think is desirable by doing appellate litigation.”

  Thanks to Doug Berman for the link.

  Incidentally, Cassell is one of five federal judges with superlative academic credentials who recently resigned or announced plans to resign either after only a short period of service or when still relatively young. I believe Cassell is now 47, and he resigned in 2007 after 5 and 1/2 years of service. The other four are Mark Filip (41, served for 3 years, now a nominee to become Deputy AG), David Levi (resigned in 2006 at the age of 55 after 17 years on the bench to become Dean of Duke), Michael Luttig (resigned in 2006 at 51 after 15 years on the bench to become GC of Boeing), and Michael Chertoff (resigned in 2005 after 2 years at age 53 to become Secretary of Homeland Security). […]

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Federal District Judge — and Leading Conservative Criminal Law Scholar — Paul Cassell Resigning:

Sentencing Law & Policy has the story. I don’t know Judge Cassell well, though we’ve met a couple of times; but I have long respected his scholarship, of which there’s been a great deal. Here are Judge Cassell’s reasons:

In the past few weeks, two primary factors have led me to do something that I never thought possible — leaving this important public service position. First, the S.J. Quinney College of Law at the University of Utah has offered me a chance to return to pursue teaching and scholarship there. Many interesting things are happening at the College of Law these days, including exciting research by the criminal law faculty and the development of the new Utah Criminal Justice Center. Returning to the College of Law will give me time to pursue research in my area of greatest scholarly interest — crime victims’ rights. I have several important books and articles on this topic that I would like to turn to as quickly as possible.

Related to this opportunity is the coincidental offer from the National Crime Victim Law Institute to litigate crime victims cases across the country on its behalf. As you know, many indigent crime victims have unmet legal needs in the criminal justice system, particularly because the content of victims’ rights remains largely undeveloped in the courts. Because of my academic specialization on this topic, I hope to be particularly effective in advocating on their behalf.

And finally, I would be less than completely candid if I did not mention the uncertainty surrounding judicial pay as a factor in my decision. With three talented children approaching college years, it has been difficult for my wife and me to make financial plans. As you know, this year federal judges have yet to receive even a cost of

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The Reasoning of the Utah Opinion Partially Striking Down and Rewriting the State’s Bigamy Law

In his post below, Eugene notes the new decision in Brown v. Buhman, involving Utah’s bigamy law. In the case, a group that considers polygamy a core part of its religious practice challenged a Utah law that states: “A person is guilty of bigamy when, knowing he has a husband or wife or knowing the other person has a husband or wife, the person purports to marry another person or cohabits with another person.”

I’ve read over the opinion, and it is quite unusual. For example, I don’t recall another legal opinion that relies extensively on Edward Said’s theory of “orientalism” to interpret the U.S. Constitution (see pages 10-23). More broadly, the judge’s reasoning is surprisingly hard to tease out. There are pages and pages of discussion that end with the court saying that all of the previous discussion is irrelevant because something else is relevant, followed by pages of pages on that second issue, leading to no obvious point. It’s definitely different.

But you don’t pay us the big bucks to skip over the legal goods, so here’s the reasoning of the court’s opinion, at least as far as I can tell. First, the court concludes that the phrase “or cohabits with another person” in the statute is unconstitutional under the Free Exercise clause because it is not “operationally neutral” towards religion. It is a phrase in the statute that has been used to target religious minorities that are polygamists, the judge reasons. The phrase therefore must be excised from the statute because the phrase cannot survive strict scrutiny. The phrase also violates Due Process under Lawrence because it violates the principle of “consensual sexual privacy,” and that it is also void for vagueness. (I don’t know where the judge gets the idea that individual words or […]

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Events in Salt Lake City and Chicago Next Week

If you’re in Salt Lake City, you might be interested in this event: Next Thursday at noon, I’ll be speaking at a CLE luncheon for the Constitutional Law Section of the Utah Bar. I’ll be joined by co-conspirator and University of Utah law professor Paul Cassell, as well as professors Carissa Hessick and Amy Wildermuth, and we’ll be talking about interesting cases likely to be decided by the Supreme Court next term. Details are on the Utah bar website.

If you’re in Chicago, you might instead be interested in this other event: Next Monday at 7, I’ll be attending the final performance of “Men and Dogs,” a play written and directed my brother Jonathan Baude as part of the Chicago Fringe Festival. It’s a play about Leon Czolgosz, who assassinated President McKinley in the name of anarchism but whose true motivations are surprisingly obscure. […]

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Decimating the Public Defender System

Former judges Paul Cassell and Nancy Gertner have an op-ed in today’s WSJ decrying the effects of budget constraints and sequestration on federal public defenders.  Here’s a taste:

due to the combination of general budget austerity and sequestration, the federal public defender system—a model of effective indigent defense for the past 40 years—is being decimated. As former federal judges from opposite ends of the ideological spectrum, we both understand that these shortsighted cuts threaten not only to cripple the federal defender system, but to disrupt the entire federal judiciary—without producing the promised cost savings.

A decrease of nearly 10% in the federal public defender budget for 2013 has already resulted in layoffs and up to 20 days of furloughs in many federal defender offices. In a number of states, federal courts have been forced to delay criminal cases because of public defender furloughs and layoffs. . . .

These steep budget cuts will not save us money in the long term. Delays in trials require many defendants to spend more time in costly pretrial detention facilities. But the flow of criminal prosecutions has not abated, so the unavailability of public defenders will simply force courts to engage private attorneys more frequently. Most federal judicial districts have a public defender office and, in those districts, it is more cost effective to have the office handle a majority of cases.

Reducing funding for federal defender budgets means that the remaining federal defenders have less time and fewer resources with which to investigate cases, conduct legal research and hire expert witnesses. This loss severely compromises their ability to represent their client at trial, destroying the adversarial process at the heart of our system. Without balanced, vigorously litigated cases, wrongful convictions may become more common, imprisoning the innocent and allowing the guilty to walk

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Cert Petition Asks Court to Overturn “Dual Sovereignty” Doctrine in Double Jeopardy Law

The Double Jeopardy clause of the Fifth Amendment provides that no person can “be subject for the same offense to be twice put in jeopardy of life or limb.” Despite its text, the Double Jeopardy clause has been interpreted by the Supreme Court to allow both the federal government and a state government to bring charges for the same conduct because they are separate sovereigns.

In a very interesting cert petition that was recently filed, Roach v. Missouri, the petitioner asks the Supreme Court to overturn this doctrine on originalist grounds. Here’s the question presented:

Under the original meaning of the Double Jeopardy Clause, a prosecution by one sovereign barred subsequent prosecutions by all sovereigns. But the Court strayed from this original meaning when it adopted the doctrine of “dual sovereignty,” which permits prosecutions by multiple sovereigns. Criminal defendants thus now have less Double Jeopardy protection than they had at the Founding. This petition presents unequivocal historical evidence that dual sovereignty is inconsistent with the original meaning of the Double Jeopardy Clause.

The question presented is whether the Double Jeopardy Clause bars a state prosecution for a criminal offense when the defendant has previously been convicted of the same offense in federal court.

The petition is certainly unusual: It asks the Court to overturn its longstanding precedent based on a historical argument without identifying a split or lower court confusion. But the historical argument is a very interesting one. At least on a first read, it seemed pretty persuasive to me. For some similar thoughts from co-blogger Paul Cassell, see Paul G. Cassell, The Rodney King Trials and the Double Jeopardy Clause: Some Observations on Original Meaning and the ACLU’s Schizophrenic Views of the Dual Sovereign Doctrine, 41 UCLA L.Rev. 693, 709-15 (1994). […]

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Thoughts on The Collapse of American Criminal Justice (Part 1 of 2)

I recently finished the new book by the late Bill Stuntz, The Collapse of American Criminal Justice. My co-blogger Paul Cassell reviewed it here in the Wall Street Journal, and I wanted to blog my own thoughts about the book. My basic take is that it’s a great book, with many important insights. It’s the most interesting book on the criminal justice system that I’ve read in a long time, and perhaps ever. At the same time, I’m not sure I’m entirely convinced: Stuntz makes a number of claims that strike me as questionable. Plus, his recommendations for reform stuck me as a bit utopian. In this post, I’ll introduce Bill’s basic theory, and then offer some thoughts in response. In a future post, I’ll turn to Stuntz’s recommendations, and again offer my own reaction.

I. The Basic Argument of Stuntz’s Book

Stuntz’s argument starts with a widely-heard set of complaints about today’s criminal justice system: Too many people are in prison, too many laws are too punitive, and criminal cases are generally resolved by guilty pleas guided by prosecutors rather than trials resolved by juries or judges. The question is, why? In Stuntz’s view, the major reason is that criminal justice has lost its local character.

In the 19th Century, Stuntz explains, criminal law and justice was largely local. There was a lot of variation by region, to be sure. But on the whole, local police captured local criminals, who were charged by local prosecutors and tried before local juries using criminal law standards from the common law that were vague and left considerable discretion to the jury. In Stuntz’s view, that system worked pretty well – much better than we realize today. Criminal punishment was relatively rare, and punishment reflected community norms and senses of justice. […]

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Federalist Society Teleforum on Miranda Warnings and Terror Suspects:

Here’s some promotional information about a debate I will be participating in today, hosted by the Federalist Society:

TODAY!  Miranda Warnings and Terror Suspects

A Teleforum sponsored by the International & National Security Law Practice Group


Featuring The Hon. Paul G. Cassell
Ronald N. Boyce Presidential Professor of Criminal Law
S.J. Quinney College of Law at the University of Utah

Professor Amos N. Guiora – S.J. Quinney College of Law at the University of Utah

Dean A. Reuter – Vice President & Practice Groups Director
The Federalist Society (MODERATOR)

Thursday, March 31, 2011 at 3:00 p.m. (EDT) – 1-888-752-3232 – No registration is necessary.

To participate on this practice group Teleforum, please dial in to 1-888-752-3232
today, March 31, at 3:00 p.m. (EDT) via telephone.

Professors Paul G. Cassell and Amos N. Guiora of the S.J. Quinney College of Law at the University of Utah recently debated the extent to which law enforcement personnel are required to read the standard Miranda warning to terror suspects, and whether the reading of such a warning compromises the government’s ability to investigate acts of terror, both prospectively and retrospectively, or whether a public safety exception for terror suspects effectively erodes a vital protection for all criminal suspects.  Now they will reprise their debate and be available to answer your questions.  Please join us this Thursday for their live presentations.

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Time to Revise Mandatory Minimum Sentences?

Along with my former colleague Erik Luna, I’ve just published an article on mandatory mimimum sentences.  The article, which can be downloaded from SSRN here, tries to find common ground on the issue of revising mandatory minimum sentences in the federal criminal justice system.  Here’s the abstract:

One of us (Cassell) is a former federal judge nominated by President George W. Bush, now a “conservative” scholar whose work is often supportive of law enforcement, the death penalty, and the rights of crime victims. The other (Luna) is a “libertarian” who tends to be suspicious of government and adamant about abuses of power, including those by police and prosecutors, and his scholarship has expressed the need for wholesale criminal justice reform (especially in the federal system). If we could find common ground on ways to modify federal mandatory minimums, we hoped that policymakers might share this agreement, perhaps sowing the seeds of further reforms. Whether or not modest congressional action spurs greater feats, however, our proposal is far from death defying. It is instead a fairly unpretentious yet principled modification.

Part I of this Article begins by briefly describing the background of mandatory minimum sentencing, including arguments for and against mandatory minimums and an analysis of their enactment in the federal system. Part II considers the resilience of mandatory minimums from a behavioral science perspective and then sketches a potential process of reform in light of the relevant phenomena. Part III discusses the concept of minimalism in philosophy and legal theory, proposing the idea of “political minimalism” as a justification for reform efforts that seeks consensus on basic principles accompanied by small legislative steps. Part IV provides specific changes to federal law consistent with a minimalist approach to statutory modification. Finally, Part V offers some suggestions for further reforms, with

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Should Crime Victims Have the Right to Be Heard on Federal Sentencing Guidelines Issues?

I recently argued that they should to the U.S. Sentencing Commission.   Currently the procedures at sentencing envision the parties arguing the various factors, but not a crime victim.  This approach reflects an outdated way of thinking about criminal procedure — that only the state and the defendant have legitimate interests in the outcome of a criminal case.

In my view, Congress has rejected this approach in passing the Crime Victims Rights Act (CVRA)  in 2004.  The Act promises crime victims that they will be treated with “fairness” through the process and, with regard to sentencing in particular, that they will have the right to be “reasonably heard” at sentencing proceedings.  In passing the CVRA, Congress intended “to afford [victims] due process” in the federal criminal justice system.   Victims are not treated fairly and reasonably heard on sentencing issues unless they are given a chance to speak to federal sentencing guidelines issues.  The federal sentencing guidelines, while becoming more and more “advisory” every day, are still the single most important factor in determining a federal sentence. 

I proposed to the Sentencing Commission that they amend one of their policy statements on sentencing procedues to specifically give victims rights in the process.  My proposed change to section 6A.1.3 is:

When any factor important to the sentencing determination is reasonably in dispute, the parties and any involved victim shall be given adequate opportunity to present information to the court regarding that factor. . . .

Such a change would allow a crime victim, for example, to present evidence regarding whether an assault was “aggravated” or “minor” and the nature of the injuries that resulted from the assault — important factors in applying the assault guideline. In my testimony, found here, I offered a specific example of a crime victim who, remarkably, was not […]

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Michael McConnell to Leave Tenth Circuit and Join Stanford Law Faculty:

The stunning news is here. Judge McConnell is one of my favorite judges; that’s a really big loss.

  I’ve noted before that there have been an unusual number of early retirements from the judiciary among the most academically accomplished of judges, including the likes of our own Paul Cassell (left to join the Utah faculty) and David Levi (left to become Dean of Duke). Now McConnell can be added to the list. All of the six individuals on the list are GOP nominees, as it turns out.

  Thanks to reader Derek Muller for the link. […]

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Rating the Scholarly Impact of the VC “Faculty”:

Brian Leiter has posted a new study of the “scholarly impact” of top law school faculties in the U.S.

Using the same methodology as Brian Leiter’s recent survey, and including regular VC bloggers except for Ilya and Sasha, who are not yet tenured (and therefore would be excluded under the Leiter methodology), David Kopel, who is not a law professor, and Paul Cassell, who was busy serving as a federal judge until recently,* the “mean scholarly impact” of VC bloggers is 530, which beats every law school in the country. The “median scholarly impact” is 330, which beats everyone but Yale.

* The list is thus Adler, Barnett, Bernstein, Carpenter, Kerr, Lindgren, Posner, Post, Volokh, and Zywicki. Adding Paul Cassell to the list would not substantially change the results. […]

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Board Games,Textualism, and the South Carolina Anti-Gambling Statute:

As both a Legislation professor and board game player, I am intrigued by the South Carolina anti-gambling statute discussed in Paul Cassell’s recent post. The statute bans the playing of “any game with cards or dice” in a wide variety of locations, including “any tavern, inn, store for the retailing of spirituous liquors or in any house used as a place of gaming, barn, kitchen, stable or other outhouse, street, highway, open wood, race field or open place.”

A strict textualist reading of the statute suggests that South Carolinians are forbidden to play board games such as Monopoly and Risk in the listed locations. After all, these games have both cards and dice. Dungeons and Dragons is also apparently forbidden, since it has many different kinds of dice, ranging from 4-sided to 20-sided. No more playing Monopoly or D&D in your barn, stable, kitchen, or outhouse in South Carolina!

This textualist reading is reinforced by the statute’s list of exceptions to the ban, which includes “the games of billiards, bowls, backgammon, chess, draughts, or whist when there is no betting on any such game.” Notice that Monopoly, Risk, Dungeons and Dragons, and so on, are not on the list of exceptions. That strongly suggests that they come within the terms of the general ban. Lawyers call this the rule of “expressio unius est exclusio alterius” (if something is not on a statutory list, that suggests it was deliberately excluded from it).

Of course, a purpose-based interpretation might suggest that the legislators simply didn’t have these games in mind, and were instead focused on banning games that typically involve gambling. Not many people place bets on Monopoly and Risk. That possibility, however, is undermined by the fact that the banned games are forbidden even if no gambling is involved. […]

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Illegal Aliens and Other Constitutional Provisions:

The magistrate judge’s opinion in the Second Amendment illegal alien case also reminded me of our own then-Judge Paul Cassell’s opinion in a Fourth Amendment case involving an illegal alien who feloniously reentered the U.S. If the magistrate judge’s opinion is adopted by the district court, and the decision is then appealed and affirmed using the reasoning that “the people” doesn’t generally include illegal aliens, it may well have an important effect on Fourth Amendment illegal alien cases as well as Second Amendment ones.

UPDATE: Reader David Warren points out that then-Judge Cassell later expressly held the opposite as to an illegal alien who had not feloniously reentered the U.S. See U.S. v. Atienzo, 2005 WL 3334758 (D. Utah 2005):

In light of Esparza-Mendoza [the earlier case I linked to above], the question is now presented as to whether that decision should be extended to block illegal aliens who are not previously-deported felons from claiming Fourth Amendment protections. As just explained, this issue was specifically reserved in Esparza-Mendoza. The reasoning of Esparza-Mendoza does not automatically require the conclusion that illegal aliens who are not felons are categorically barred as a class from asserting Fourth Amendment rights. The opinion rests in no small part on the unique status of felons-who are generally excluded from the political process. With respect to illegal aliens who are not felons, the decision whether they fall outside the Fourth Amendment would seem to require a case-by-case determination. Because in this case the government does not challenge Atienzo’s argument that he has sufficient connections, the court concludes that he can assert a Fourth Amendment claim.

While deported alien felons are excluded from the national community in a permanent way, the situation may be different for at least some persons who have committed no felonious criminal

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