In an effort to “restore a degree of justice, fairness and proportionality” in federal sentencing the Department of Justice is finally moving to directly reduce unfair sentences for nonviolent defendants by broadening clemency criteria.

The goal is to correct widespread sentence disparities which have escalated with the implementation of harsh Federal Sentencing Guidelines that gave federal judges little discretion in federal sentencing. In fact for a number of years it has been federal prosecutors rather than federal judges who made the most important sentencing decisions. And with the Justice Department decision to broaden clemency criteria it’s ever more clear that punishment in America is dominated not by judges but by prosecutors. Criminal defense lawyers could do little but force cases to trial or search for the best sentencing alternatives by persuading prosecutors that the case was weak.

Some federal judges even noted in opinions apparently not co-written by prosecutors that they had become little more than adding machines totally calculations for the sentencing guidelines without any real human input. In many cases wary federal judges have been unwilling to give lower sentences especially in jurisdictions such as the Middle District of Florida, where there existed the threat of successful appeal of the sentence by prosecutors. Even good judges found themselves hemmed in between harsh sentencing guidelines, minimum mandatory sentences and overzealous prosecutors. 

Clearly this is an important step toward fairer sentencing by the justice department. And at least this gives every sitting president the ability to right the wrongs of sentences that are unfair by granting clemency to clear up past unfair sentencing for those in prison awaiting American justice. One example of unfair sentence due to sentencing disparity given in the attorney general’s statement on clemency is crack cocaine. At one point those caught with crack cocaine were routinely sentenced to 100 times as much prison time as those prosecuted and punished for other forms of cocaine, which the Supreme Court reduced it to 18 to one. Yet even at 18 to one, many of those people convicted of this nonviolent drug possession charge still remain in prison. But what we really need is fair sentencing. 

And the only way to gain fair sentencing is to change the entire criminal justice system. We need judges who are brave, articulate and compassionate, who understand what serving time in jail really means and who are willing to do what is right no matter what the public consequences. We need new laws that give the power of sentencing to judges not prosecutors. We need overzealous prosecutors to understand that their first duty is to implement justice. And we need federal criminal defense lawyers who never give up, who never stop fighting for their clients to find the best possible sentencing outcomes.


A recurring sentencing scenario that Clearwater criminal defense attorneys often experience is a frowning Judge who states on the record that regretfully the onerous sentencing guidelines call for a harsh sentence which must be imposed. At least the Sentencing Guidelines don’t yet call for being sent to the old Village Stocks as punishment or Judges would do that as well. It’s not enough that the United States Supreme Court has ruled that the Federal Sentencing Guidelines are merely advisory. 

Old Village Stocks are as dated as the sentencing guidelines in Florida criminal cases in Tampa Bay, Florida.
Sentencing Options have changed.

If it’s a Federal Judge he’ll remind the lawyers that despite what the Supreme Court has stated, the Federal Sentencing Guidelines as they pertain to lengthy minimum mandatory sentences can only be pierced by substantial assistance based on co-operation or by the rarely invoked safety valve provision which only applies in drug cases and only if the Defendant is in the first criminal history category. 

Yet even when no minimum mandatory sentence is triggered under the Federal Sentencing Guidelines the Judge feels bound by them and will work from the guidelines toward a fair sentence.

In the state criminal justice system of Florida, the Judge will maintain that the Supreme Court’s opinion on the Federal criminal justice system has no bearing on the state of Florida and at this point the Judge is correct. So the Judge will look to Florida scoresheets calculations that create a sentencing guideline range to determine an appropreate sentence.

Here are some of the best ways to present better sentencing options for a Judge that trump the sentencing guidelines.

First, the facts of the case need to be exploited and explained in such a way that the Court will differentiate the case from others that seem similar but aren’t. This must be based on a fact based presentation and comparison of the case at hand in comparison to the typical case for which the criminal statute was clearly written. For example, intentionally spitting on an officer is a Felony Battery, but should the law apply with equal heft in punishment where the officer in question is shown to have egged the Defendant  on?

Second, the Defendant must be made to seem much more sympathetic than a typical Defendant. At the heart of this is finding the lynchpin that explains to the Judge why this event happened and why it will never happen again. One purpose of sentencing may be punishment, but another purpose of sentencing is rehabilitation. How does it help society to punish a Defendant if at sentencing the defense can establish a high likelihood that the Defendant will never commit another crime?

At issue in every sentencing case should be the question: is this a fair sentence and if not, why not? Showing a wide disparity of sentences within a given law’s sentencing history may establish the inherent unfairness of a sentence. This is what happened in the abolition of the 100 to 1 mandatory minimum ratio of crack cocaine punishment to powder cocaine punishment in Federal Courts. But thousands of Americans suffered years of wasted prison time before the Courts, and finally Congress, were brave enough to make the needed change based on disparity of sentence.

Finding leverage for a fair sentence thru special personal characteristics of the Defendant is specified under the Federal Guidelines as giving the sentencing Judge discretion to go under the guidelines to provide for a fair sentence. This federal framework can also be very successful in state court system. 

As an example would be a case involving a million dollar fraud scheme for which a client who also happens to have an on-going, non-curable disease accepts responsibility for his criminal conduct by pleading guilty. The Sentencing Guidelines call for jail based on the amount of the taking in the scheme to defraud. Yet establishing to the Judge that the client is taking non-FDA approved drugs for his illness, forces the Judge to go under the guidelines and give no prison time whatsoever, because non-FDA approved drugs are not allowed in the Federal Prison System.

If someone you care about is concerned about how the Sentencing Guidelines will affect a Judge’s sentencing decisions you need to find a Clearwater criminal lawyer who will find the best options that are available by making sure the Judge creates a sentence which gives the least amount of punishment while still protecting the community.


Many thanks to Amy Baron-Evans for this unique argument at federal sentencing for clients showing the court the effects of disparity of sentences for similar acts and there respective recidivism rates. As defense lawyers in the Middle District of Florida are aware these arguments typically are met with indifference by our local Judges; however, its great to throw in as an additional point where a Judge is leaning in your direction anyway and is searching for any reason to reduce the sentence – say, within the framework of the personal characteristics of your client:

The Commission’s Fifteen Year Review reports that the recidivism rate of defendants sentenced as career offenders based on prior drug offenses “more closely resembles” the recidivism rate for offenders in the otherwise applicable criminal history category.  See U.S. Sent’g Comm’n, Fifteen Years of Guidelines Sentencing:  An Assessment of How Well the Federal Criminal Justice System is Achieving the Goals of Sentencing Reform 133-34 (2004). I just noticed this Table 14 in the Commission’s 2010 Sourcebook. You can find this at the following place —— ——— ——–  Using it, you could argue that the average sentence for a drug trafficker sentenced as a career offender is 167 months, but for a defendant in criminal history IV, for example, it’s 98.3 months, or 60% of the career offender sentence. Or, for example, if your client’s instant offense is robbery but he is a career offender based on drug priors, the average sentence for a robber sentenced as a career offender is 156.3 months but for a defendant in criminal history IV, it’s 71.5 months, or 45% of the career offender sentence. There are lots of ways you could use this table in career offender and other cases.  It shows average sentence length for primary offenses by criminal history category.