It’s an unfortunate aspect of the American Criminal Justice System that the vast majority of judges have spent no time in jail. A little jail would do most of them good. Not only would some time in the slammer help them understand what incarceration really entails, it would add some perspective if not empathy to a sentencing process that is often inhumane and robotic. 

Even Judge Judy needs Jail

In fact why stop with just the judges? Prosecutors and Defense lawyers could share a cell, eat beans together and pay seventeen dollars for a two minute call home, just like their targets and clients must do when imprisoned. It’s not unusual for prosecutors and judges to forget the hopeless reality of prison by simply basing every Florida sentencing decision on scoresheet calculations and sentencing guidelines

Because if they did think about it, if the tortured lives and wasted time of each prison day the defendant would serve had to be counted and assessed in some knowing way, the prisons would be emptied except for the most violent criminals. How does it help anyone to have nonviolent people wasting time in jail? 

Recently a family from my home town sought advice about a federal habeas corpus petition to rectify the results of on an older grand theft case in which the defendant was sentenced to twenty-five years in prison. Twenty-five years for a grand theft! He’d been offered a mere two years of jail before his trial. 

In Florida judges are forbidden to punish someone for exercising their constitutional right of going to a jury trial, but a judge may get around that by stating that information gained at the trial changed one’s mind. One wonders if this judge would benefit from spending some quality time in jail himself. In fact why not have the judge spend say one hour for every year for which he sentences someone.

Wouldn’t the victims be better off if the Defendant was earning money to pay them back even if he was just flipping hamburgers? Wouldn’t society be better off if he was on probation? Wouldn’t his children be better off with a father at home? It’s unfathomable to me that the American Criminal Justice System is often just in the process but not in the results. Yet the truth is that the habeas corpus action was unlikely to meet with success unless some aspect of the process could be shown to have been a failure despite the obvious failed result of that process.

But let’s brighten your day by thinking of others we should place in our empathy jail. Why not send every police officer to jail too?  Starting with the Sheriff,  all the way down. They’d all benefit from having a fuller understanding of how brutal the prison system actually is in Tampa Bay, Florida. Would the Pinellas County Jail’s recurring problems with bad food, lack of safety and failures by the medical staff be affected if those in control knew that they would be spending time there? Would the Judges allow it to continue? Would the Prosecutors? Would the Defense lawyers?


The day after Thanksgiving your Clearwater Criminal Defense Lawyer received a call about prison conditions at the Coleman Federal Correctional Institution in Florida. The call came from a lady who believed her son was singled out for cruel and unusual punishment at the jail.

Here’s the gist of her questions to me:

Is solitary confinement cruel and unusual punishment in Florida Federal prisons?
Van Gogh, Prisoners, 1890

A few months ago another inmate threw a knife into my son’s cell. Since then my son has been punished for the knife by placement in the hole (solitary confinement), with only one phone call to me per month and many other losses of what little freedom he had….

My son did not co-operate in telling who threw the knife because he legitimately fears reprisals from inmates. Yet after all this time he has not been charged with any offenses from the knife incident. What can I do to get better conditions for my son?

The prison system of America holds a higher portion of the population than any prison system in the world. The over-crowded conditions in many American jails such as the Pinellas County Jail in Tampa Bay, Florida should be improved. For the most part the Bureau of Prisons has been held by Federal Judges to a much higher standard of care than most American state and local prisons.

Clearly all jails are allowed to punish and segregate prisoners who violate the law or violate prison rules by being found in possession or close proximity of weapons, drugs or other contraband. Even for rules violations long term solitary confinement should be deemed cruel and unusual punishment, yet our Government confines up to 80,000 prisoners in solitary confinement.
So what can be done for your son?
First, without being accusatory, simply contact the jail in writing with a factual statement of the circumstances your son is facing including the length of time spent in solitary confinement with details of any other deprivations. This puts the prison on notice that someone outside the system is alert, watchful and that your son is not forgotten. 
Then you should contact the psychologists, doctors and clergy (or faith-based community organization members) who are daily allowed into the jail making direct contact with inmates with the facts of the conditions your son is facing and request that they meet with your son as soon as they can. 
Your objective is to have as many eyewitnesses as possible to view his conditions, note his circumstances and if necessary to complain about his conditions. Once you have their statements in writing you can go to the Bureau of Prisons with a complaint or if the Bureau of Prisons fails to take action to file a Federal Habeas Corpus Petition to get him better conditions or free him.
Especially during this Holiday Season let him know he’s not forgotten and that you’re doing your best to help him. And with help from Clearwater Criminal Defense Attorneys we’ll be doing our best to help other prisoners survive the most difficult time of their lives.


Are Florida Drug laws unconstitutional? Your favorite Clearwater Criminal Defense Attorney sees Florida Drug laws as flawed in they do not require knowledge of drugs as an element of the offense, an element of the offense being what the State of Florida must prove in order to secure a conviction. 
First, about a year ago Federal District Judge Scriven lofted the ball onto the court for an ace finding Florida Drug laws were unconstitutional. Then the Florida Supreme Court tied the game finding that the Florida Drug laws are constitutional with some brilliant and entertaining arguments by the attorneys

Florida drug laws are constitutional yet the law destroys more lives than the drugs just like  absinthe
Guy du Bois, Absinthe House New Orleans

Now the Federal Appeals Court has decided that yep, those folks on the Florida Supreme Court must be given deference in their interpretation of Florida law; therefore, the controversial Florida Drug Statutes are constitutional and you, my reader with your warm bong, your cold beer, and your frozen pizza, what will you do as this game is finished?
Take heart. As lawyer Rosemary Cakmis reminds us in this email, the decision isn’t as encompassing nor definitive as it may seem:

Remember that Shelton came to federal court by way of a habeas petition under 28 USC 2254. So the attached decision, reversing Judge Scrivens’ famous decision ruling that the Florida drug statute is unconstitutional, is not as devastating as it may seem at first blush. The critical part of the 11th Circuit decision is on the last page:
“To be clear, this Court expresses no view on the underlying constitutional question, as we limit our analysis to AEDPA’s narrow inquiry.” Over the years, section 2254 has been (and continues to be) severely limited. And alleged errors in state court are not reviewed by federal courts under the same standard as federal courts use to review errors in federal proceedings…As relevant here, the federal court can only grant 2254 relief on a claim that the state court adjudicated on the merits if the state court decision was “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court.” 28 USC s. 2254(d).

Herein lies the problem. Judge Scriven found that a per curiam affirmence is not an adjudication on the merits under Florida law, and so the Florida court was not entitled to deference. The 11th Circuit disagreed, stating that it was compelled to presume the state court in Shelton’s case rendered an “adjudication on the merits,” which is entitled to deference in a 2254 proceeding.

In the end, all that the 11th Circuit decided today in Shelton was that the issue was “novel,” there was no Supreme Court precedent directly on point, and therefore the state court’s decision was not unreasonable. 

Clearwater Criminal Defense Lawyers note that the original issue came to Judge Scriven as a habeas corpus petition, which is a petition from a Florida inmate asking a Federal Judge to release him from prison because he shouldn’t be there. Yet with all this litigation somehow lost is the grim reality of this man named Shelton, his name gracing this case bandied about like a tennis ball slammed in bounds and out, who’ll remain a prisoner serving a long Florida sentence for his drug crime.