The New York Times recently reported that federal prosecutors are using federal inmate emails sent to their defense lawyers as evidence of wrongdoing.
The evidence is being used as additional leverage to force pleas of guilty for those not yet convicted and during sentencing hearings for those already convicted. Although many jurisdictions are divided as to whether this evidence is permissible some federal judges are accepting the notion that defendants in custody waive any rights to private correspondence with their defense lawyers thru email.
In the Middle District of Florida in Tampa most federal prisoners are placed in the Pinellas County Jail in Clearwater while awaiting trial. But if convicted the defendants are hastily sent to Citrus County to await sentencing. Neither the Pinellas nor the Citrus jail offers email for defendants.
Once federal defendants are transferred to a federal facility under Bureau of Prison guidelines then email is provided. Many defendants may be under the false impression that their email to their defense counsel is protected under attorney-client privilege.
All telephone calls to and from prisoners in Florida prisons are recorded. All traditional mail to and from prisoners is opened not only to stop contraband from entering the jail, but in an effort to make certain that the mail is not used to further any criminal conspiracy or enterprise. Telephone calls and traditional mail are often used as evidence in federal and Florida courts against prisoners.
So how does a defense lawyer conduct a defense if his client in incarcerated in Florida? It doesn’t matter whether the client facing a life sentence is charged with a federal conspiracy to traffic in cocaine with 10,000 pages of evidence or if the client is facing a simple battery misdemeanor charge with two pages of evidence. The evidence will be discussed in the following manner:
Upon entry to the Pinellas County Jail your defense attorney is given access to a small, gray, grim room which is presumably free from eavesdropping or other intrusion. The lawyer and his client work from two metal chairs and an old folding game table. Alleged first degree Murder charge? Game table. This face to face meeting place is the only method of safe communication provided for any alleged offense in Pinellas County.
Yet much of the correspondence and communication in America today is conducted via email. All prisoners in both federal and Florida prisons should be given unrestricted email access if not to their families and loved ones, at least to their defense lawyers. It would even free up the wait time for the meeting rooms which are often filled.
The most important aspect of the lawyer-client privilege is the ability to communicate. Without a free exchange of ideas between defense counsel and client the lawyer-client privilege is meaningless. Lawyers for prisoners should be able to routinely send and receive emails from those they represent without fear that the emails may compromise clients in the future.
I’m often asked about the likely sentence someone could receive for various drug offenses in Florida. Many factors dictate how much discretion a judge may have in providing a sentence that does not punish too harshly.
Here are the five most important factors which will be taken into account by the sentencing judge in the first assigned courtroom or if moved to the new Pinellas County Drug Court:
1. The type of drug is an important factor in sentencing. There are many illegal drugs. A drug such as heroin will be more severely punished that a more benign drug such as marijuana or a prescription drug.
2. The amount of drug is a very significant factor in drug sentencing in Florida. A sentence for drugs will be based on the quantity of drugs possessed. Quantity of drugs can be based on the sheer weight of drugs or can be measured by the number of pills possessed by a defendant. If the quantity attributable to a defendant is large enough, then the Florida sentencing guidelines may be trumped by a minimum mandatory sentence which the judge must give under Florida’s harsh drug sentencing laws. For example, only a handful of oxycodone pills will trigger a three year minimum mandatory sentence. Although marijuana is more benign than many other drugs, someone who is raising just a few plants may be charged with having a grow house which would require the judge to give a long sentence of imprisonment.
3. The criminal history of the defendant is always a factor in drug sentencing in Florida courts. Someone with no prior drug arrests may be eligible for treatment rather than face more severe sanctions such as prison. However, the judge must take the Florida guidelines into account when sentencing. This means that someone’s prior record even for non-drug offenses may outweigh the need for treatment forcing the judge to give a severe sentence.
4. If weapons, firearms or guns were found incident to the arrest for drugs, then you’re expectation should be that the prosecutor will ask the judge for a harsher penalty. In Pinellas County, Florida additional charges may be filed or additional time given at the sentencing hearing in your Clearwater courtroom. While in the Federal system in the Middle District of Florida in Tampa the government will ask the judge to give an additional five years on top of whatever the sentence would have been.
5. Finally, if there is an allegation of violence during the use or distribution of drugs in Florida, it’s likely that the sentencing judge will use this as an aggravating factor to give a higher sentence. For example, an arresting officer who claims that he was battered during the course of the investigation will not only file an additional felony charge of Battery on a Law Enforcement Officer, but will ask prosecutors to give additional punishment at sentencing.
As you can see there are many variables in any drug charge which may dictate a future sentence. It’s important to have a criminal defense lawyer look at the facts of your case to insure that you receive the lowest possible sentence by making arguments to reduce the quantity, quality and relevance of any drugs that may have been found in your possession.
Nearly 50,000 federal prisoners will receive a two level drug reduction that on average will result in more than two year reductions of their original sentences.
The Federal Sentencing Commission unanimously voted to retroactively apply the Attorney General’s recent decision to grant two level drug reductions in federal drug cases to achieve greater fundamental fairness for those already sentenced. Although the Sentencing Commission states that federal judges may apply the new two level lower guideline range in older cases, there is no requirement that federal judges do so. In fact because of the significant number of current federal prisoners who were sentenced under harsh federal guideline ranges, there will likely be a backlog of cases even for those who should be released under the new drug provisions.
Though the Commission states that fairness is the over-riding consideration for the retroactive federal drug sentence reductions, a look at the Commission’s memorandum announcing the decision gives other reasons.
1. The Federal Bureau of Prisons population exceeds capacity by around 32%. Under today’s change addressing this problem, the Commission estimates that 46,290 offenders would be eligible to have their cases reviewed by a judge to determine if their sentences should be reduced;
2. Offenders eligible for a reduction could have their sentences reduced by an average of 25 months, or 18.8%.
3. They would still serve 108 months, on average.
4. Over time, these sentence reductions could result in a savings of up to 79,740 bed years (a bed year is the equivalent of one federal prisoner occupying a prison bed for a year).
What the Commission is really saying is that because the federal prison system is now jammed by nearly a third over its actual capacity due to the harsh federal sentencing guidelines which the Commission created, the Commission now needs to save a few thousand bed years and this seems like a sensible way to do it. It’s not about fair sentencing; it’s about clearing the federal prisons for the next war on American citizens – not one hopes, another futile war on drugs.
For far too long the federal sentencing guidelines have needlessly destroyed the lives of our fellow Americans. It’s good that the sentencing commission as well as politicians from both parties finally agree that federal drug sentences were too harsh for too long.
Yet what does this say about the cowardly federal judges who did not have the courage to sentence federal drug defendants to treatment rather than punishment at the time of the original sentencing hearings? What does this say about the craven federal prosecutors who argued for ever more prison time for nonviolent drug crimes even when it was firmly established that prison would be of no benefit to the defendants nor for society?
More than anything that can be bought or sold, in life what matters most is time. Time to spend in the countess ways that makes each of our lives worth living. And it was time that was stolen from these defendants. How will the lives of those needlessly imprisoned ever be made complete? The least these federal prosecutors and judges can do is to set new sentencing hearings for each of these men with all deliberate speed as if that hearing were for someone they knew from their own neighborhood or from their own family.
A felony charge in Florida is defined as a criminal act for which a judge may give probation, house arrest or a prison term of more than one year; whereas for a misdemeanor a judge may give probation or jail only up to one year. When officers conduct any criminal investigation or make an arrest for any type of criminal charge one’s reputation, freedom and future are always at risk.
When a felony is charged the risks become much graver, yet even a felony need not ruinsomeone’s life if the charge is handled in an effective manner.
Here are the best ways a clever criminal defense lawyer can work with you so that even a felony charge need not ruin your life.
- Attempt to have the charged felony dismissed. The facts of the case should be filtered thru any laws that may prosecution of the case impossible. For example, one defense to a felony aggravated battery charge would be self defense, which if successfully deployed could result in complete dismissal of the criminal charge. In an aggravated assault case a successful defense could in dismissal of the charges if facts establish that the victim was not in actual fear of immediate bodily harm from the alleged misconduct.
- Make every effort to have the felony charge reduced to a misdemeanor. If the charge can be reduced then the criminal justice system is limited to control of a defendant’s life for a maximum time of one year. For example, in an aggravated battery the charge should be reduced to a misdemeanor battery if the victim’s injuries are not severe. In a felony grand theft case the charge could be reduced if the amount were proven to be under the felony threshold in Florida of $300.
- Make certain that if you plead to a felony charge you’re given a withholding of adjudication. In some felonies, such as third degree felonies or cases involving a juvenile, the judge may have the discretion to literally withhold adjudication of guilt, meaning that a defendant may later honestly claim to a future employer that he was not adjudicated for the felony.
- Reduce punishment so that you do not serve time in prison. When a criminal case is unlikely to be won because of significant evidence of guilt, then it may be necessary to reduce the punishment by persuading prosecutors that there is no justification for prison time. For example, it’s important to remind prosecutors that in most nonviolent crimes serving prison time for someone who has no prior record is unlikely to prevent further crime and in fact may have the opposite effect of making the person a hardened criminal.
- Help you articulate why the felony happened and why it will never happen again so that you can become a functional member of the community. If you can demonstrably understand the underlying causes that triggered the crime you’ll be much more effective in living a full life again. For example, in job interviews someone convicted of a felony can help assure a prospective employer by showing what was learned from the felony charge and punishment and why going thru that has made you a better person – a person more fit for the job than others who didn’t have that learning experience.
If you and your criminal defense lawyer work hard to reduce the consequences of any felony charges, then the criminal justice system in Tampa Bay, Florida need not ruin your life.