DUE PROCESS OF LAW RECONSIDERED

Copyright 2004 by Barnabas D. Johnson

Introduction

On November 17, 2004, the New York Times published an article by Nick Madigan entitled Judge Questions Long Sentence in Drug Case.

Here are excerpts:

In a case that has spurred intense soul-searching in legal circles, a 25-year-old convicted drug dealer, who was arrested two years ago for selling small bags of marijuana to a police informant, was sentenced on Tuesday to 55 years in prison.

The judge who sentenced him, Paul G. Cassell of the United States District Court here [in Salt Lake City], said that he pronounced the sentence "reluctantly" but that his hands were tied by a mandatory-minimum law that required the imposition of 55 years on Weldon H. Angelos because he had a gun during at least two of the drug transactions. [This legal position is called into question by a subsequent Supreme Court case, United States v. Booker, http://wid.ap.org/documents/scotus/050112booker.pdf.]

Judge Cassell said that sentencing Mr. Angelos to prison until he is 70 years old was "unjust, cruel, and even irrational," but that the law that forced him to do so had not proved to be unconstitutional and thus had to stand. The sentence was all the more ironic, he said, because only two hours earlier he had been legally able to impose a sentence of 22 years on a man convicted of aggravated second-degree murder for beating an elderly woman to death with a log. That crime, he argued, was far more serious. ...

The question of Mr. Angelos's sentence was at the center of a debate as to whether it was fair to send a minor drug dealer to prison for 55 years when a murderer, rapist, or terrorist, according to the same sentencing directives, would ordinarily receive no more than about 25 years.

Discussion

As proposed in Due Process of Law, this constitutional requirement addresses both fair procedures and what is often called "substantive due process": Is the underlying law fundamentally fair and rational? In this case, Judge Cassell said it was "unjust, cruel, and even irrational" but that it was not unconstitutional.

Much of the jurisprudence emanating from the United States under the heading "due process of law" maps essentially the same territory being discussed with increasing sophistication by, for example, the European Court of Human Rights, under the heading "proportionality." I have followed that jurisprudence with much interest. European legal scholars are far more aware of Anglo-American jurisprudence under "due process of law" than American legal scholars appear to be familiar with E.U. "proportionality" doctrines. This is unfortunate, indeed increasingly inexcusable. The United States should pay more attention to foreign jurisprudence on proportionality, else America's status as a leading laboratory and beacon of liberty under law will be increasingly impaired.

Irrational law is not law. It violates fundamental principles undergirding "law" that is worthy of the name. See my essays, Rule of Law and Rule of Reason.

To say that a law is irrational and cruel and unjust yet is not unconstitutional under American jurisprudence is a staggeringly troubling assertion.

Not everything that has been called "substantive due process" in the United States deserves due process protection, but clearly the case described above ought to give pause.

For those of us who are "missionaries" for constitutional democracy worldwide, the greatest help comes from being able to point to "advanced countries" where these issues have been deeply explored, where "justice in action" has a long and respectable history. Cases like that recounted above make a mockery of due process of law. Handsome is as handsome does. The United States must not lose its moral and jurisprudential compass.

See Ordered Liberty

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