Millions of lives have been ruined by unforgiving federal and state minimum mandatory sentences that have taken discretion away from judges. Minimum mandatory sentences created an imbalance of power between judges and prosecutors in which prosecutors grew more powerful than judges because it was the prosecutors who determined how to file crimes in such a way that mandatory minimum sentences were triggered.
By threatening to artfully charge crimes in which the judge would have limited discretion, prosecutors routinely force defendants to plead guilty or risk going to trial and possibly losing without hope of a reasonable sentence. Often prosecutors will have no qualms about filing additional criminal counts even when the additional charges are unmerited by the facts and circumstances of the case. This gives prosecutors a unique and powerful strategic advantage in negotiations toward a plea bargain that may be difficult to overcome even when a defendant clearly should not be charged with a crime that triggers a mandatory minimum sentence.
In federal drug trafficking cases for cocaine, methamphetamine, hydrocodone or marijuana defense counsel looking for the best sentencing outcomes must avoid harsh mandatory minimums, which is often a difficult task due to the strict federal sentencing guidelines. It’s always important for defense counsel to look for Federal or Florida laws that may undercut the application of the mandatory minimum in drug or aggravated battery cases. In Florida the youthful offender act may allow a judge to sentence far under the threshold mandatory minimum sentence that would ordinarily apply.
The best reason to abolish mandatory minimum sentences is that the laws thwart the goals of fairness, justice and equality before the law, since some people will be charged with the mandatory minimum while others aren’t for the same set of facts. When facing a possible minimum mandatory sentence every defendant must make the stark choice of pleading to one crime or going to trial on a far riskier crime.
One might argue that the mandatory minimum sentences could be made fairer by taking this discretion away from prosecutors. Although it might at first seem much better to have a fair-minded judge not a career prosecutor making this important decision, in time many judges would also abuse this power just as prosecutors have done. Too often judges, just like prosecutors, have been known to twist arms to force a change of plea. Further, traditionally it is prosecutors who determine the appropriate charge that they believe they can prove at trial, because it is the prosecutors who will be stuck trying the case if it’s not filed in a reasonable way.
No, the problem is not who decides which cases should trigger a mandatory minimum sentence; the problem is the mandatory minimum sentences themselves. The very application of such strict sentencing is destructive not only to those unfortunately imprisoned but also corrupts those who enforce and prosecute the laws. This is especially true in nonviolent criminal cases such as drug cases where mandatory minimum sentences are routinely abused by prosecutors to force defendants to serve long sentences instead of receiving help for their drug addictions.
In Florida criminal laws now make mandatory minimums required for some forms of aggravated assault and other crimes if a firearm was allegedly used though the victim was never harmed. Because every case is different, every sentence should be based on the facts and circumstances of that case, with some leeway based on the defendant’s prior record and the harm, if any, to the victim. Yet too often only the harsh minimum mandatory sentence is all that really matters and that’s why as a civilized society we must abolish all mandatory minimum sentences.
The principle now being accepted about American justice is that the needless imprisonment of millions of Americans over the past thirty years was a waste of time, resources and immeasurably lost lives. Yet the radical law makers, judges and prosecutors who did this will never be punished. Instead as it becomes common thought to now decry the abuses of harsh sentencing, they’ll simply embrace the changes and receive praise for their wisdom.
It was a radical movement that resulted in America – land of the free – having the highest number of citizens imprisoned that any other country. The radicals persuaded otherwise reasonable people that many Americans were not fit to live among us even if those Americans were never accused of any violent crime.
They were not fit to live among us because they used drugs, committed theft or damaged property. Federal and state governments declared war on drugs by sending millions of Americans needlessly to long minimum mandatory prison sentences where many otherwise good people still languish. Property rights were elevated above the rights of defendants.
And a failure of morality combined with a warped sense of justice led judges and prosecutors to somehow believe that what they were doing was best for all of us even those they incarcerated. The more punishment given to those unfortunate few would free the rest of us from having to worry about our possessions being devalued.
Still every criminal defense lawyer knows that the most effective arguments aren’t made at sentencing at all; they’re framed and reframed a thousand times until the culture develops an acceptance of basic principles. The basic principles of any society ebb and flows in tidal fashion, today in America finally bending toward less punishment for nonviolent offenders. Even as our trusted law makers, judges and prosecutors subverted the law to use it as a bludgeon destroying those who lived in ways they denounced as immoral. But what about the lost lives, the lost years, the lost loves of every person recklessly sent to prison?
Shouldn’t those who instigated this needles be treated to public shame? Shouldn’t we not only free the victims of this injustice, but find some way to punish those who failed to observe basic American values?
True American values as embraced within an ideal American justice system must always rise toward granting fair trials, reasonable sentencing and impartial results. It’s time to demand that our American gulag stop punishing nonviolent crimes with long terms of prison.
The trend of current criminal law acknowledges that whenever possible children charged with crime should not be treated as adults. The Florida Bar has been pushing for judges rather than prosecutors to determine when a child should be treated as an adult.
|Free Our Gang from Prison
In Florida, juveniles whom prosecutors have charged as adults or young adults up to the age of twenty-two may be granted Youthful Offender status for a second chance. This may happen even over the objection of the State Attorney’s Office if a judge can be persuaded with effective arguments to make a finding that a child or young adult qualifies under the statute.
A young person who pleads guilty under the Youthful Offender Statute may preempt the application of draconian sentencing laws in the following ways:
First, any harsh drug minimum mandatory sentences that would normally be triggered by conviction of a significant drug offense may be avoided. For example, in drug trafficking cases for drugs such as marijuana, heroin, cocaine, methamphetamine or oxycodone the outrageous long term sentences typically of three, ten, fifteen and twenty-five years of prison may be avoided.
Second, a young person charged with various firearm counts may be able to avoid specified minimum mandatory sentencing which a judge would otherwise not be able to sentence below. For example, in a case of possession of a sawed-off shotgun, a young defendant could avoid a minimum mandatory sentence of three years on the firearm count.
Third, in cases of sexual battery, lewd and lascivious conduct or sexual assault, mandatory sex offender probation conditions can be avoided under the Youthful Offender statute. Many times young people are charged as adults even when the actual sexual conduct was consensual. For example, when a High School senior has consensual sexual relations with a freshman whose age falls just shy of recently amended Florida Romeo and Juliet statutes. Also, in a recent article Richard Sanders makes a compelling argument that imposing mandatory sex offender probation conditions is not required under the Youthful Offender Statute despite some poorly reasoned case law to the contrary.
Finally, the large fines typically imposed in significant criminal cases can also be avoided under the Florida Youthful Offender Statute if the presiding judge is persuaded that the young offender neither has the means nor ability to pay or that a fine would be detrimental to becoming a productive citizen in the future.
Young people perceive the passage of time differently than adults and imposing any jail on a young person is a much harsher punishment in actual deprivation than a similar punishment to an adult. Further, as psychiatrists have long noted and as the U.S. Supreme Court has recently come to realize, the brain functioning properties of children may them more likely to do foolish things, to not think thru things as an adult would and to not be as responsible as an adult might be.
Under Chapter 958 of the Florida Statutes the Court merely needs to make a finding that a qualifying defendant would benefit from a set of sanctions which are likely to improve his or her “… chances of correction and successful return to the community.” This, of course, should be the aim of every judge in every criminal case. Yet too often our best judges have their decision making tied by legal restrictions and are kept from doing their most important job, which is constructing a sentence that punishes as little as possible while still deterring crime. The goal of a good judge is to sentence is such a way that a defendant does not become a ward of the state, but instead becomes a productive, law-abiding citizen.
As Americans we often may lay claim to the notion that we want fairness in our criminal justice system. In truth what we want is consistent applications of our laws when applied to others but something less consistent when applied to us or the people we care about. Only when the ugly head of the law bites us do we fully understand that in the application of justice we really require some wiggle room.
For Tampa Bay criminal defense lawyers justice should be fair except when a client faces a fair result which will also ruin his life, then what? Here are five effective arguments to leverage a judge’s discretion to make sentencing findings running against the grain of harsh laws dictating excessive punishment while finding the best possible sentence.
First, look to the law’s intended consequences to show that they are irrational when applied broadly. Even the best written laws should be narrowly construed so as not to ensnare those who may never have intended to do wrong at least in the broadest definition of the crime.
Second, show that the law has unintended consequences that could result in unduly harsh sentencing results. Establish that the facts and circumstances of a case are unique outliers in the law’s true intent.
Third, follow up the argument on the law’s intended and unintended consequences by finding and presenting evidence of the legislative history of the law. In Florida the legislative history often includes information from committee hearings, debates, votes and amendments made during the legislative process. This evidence can establish that the law maker’s intent was not to target the actions under consideration with significant punishment.
Fourth, establish that the harsh punishment for a broken law was not readily foreseeable by the average citizen. This is especially easy when the sentencing judge on the record expresses some surprise when told by the prosecutor where the Florida guideline scoresheet range of prison is for a defendant.
When Defendants were first being sentenced to the initial set of harsh minimum mandatory sentences for drugs some twenty years ago, the best judges were reluctant to sentence people to that much time. They looked for every possible avenue to avoid the law. As a prosecutor at the time I even observed a judge grant a new trial to force prosecutors and defense lawyers to come up with a non-minimum mandatory sentence.
But as the sentences became more common habit displaced sympathy. With every additional minimum mandatory sentence issued, it became that much more difficult for judges to ignore the heft of the law for others in a misplaced notion that simple fairness dictated heartless sentences for everyone. No, simple fairness means that every judge best honors the law by finding the least possible punishment, despite sentencing guidelines, that provides deterrence and protects the public based on the facts of each case with the unique personal qualities of every defendant.
And that leads to the the fifth argument which is to appeal to the sentencing judge’s sense of wanting to do what is right, which is the most effective argument of all.
Your favorite Clearwater criminal defense attorney just obtained a memorandum sent today to each federal prosecutor working in every United States Attorney’s office. The memorandum outlines the factors which every prosecutor must now consider before pursuing marijuana trafficking cases.
Here are the six critical factors to be used by prosecutors in the future for every Department of Justice prosecution as delineated in the memorandum:
|Is Cannabis Legal?
1. Preventing the distribution of marijuana to minors.
2. Preventing revenue from the sale of marijuana from going to criminal enterprises, gangs and cartels.
3. Preventing the diversion of marijuana from states where it is legal under state law from being dispersed to states where it is not legal.
4. Preventing state-authorized marijuana activity from being used as a cover or pretext for trafficking in other illegal drugs or other illegal activity.
5. Preventing violence and firearm use.
6. Preventing DUI impairment from marijuana. Preventing the growing of marijuana on public parks or other public land or other federal property.
What is most interesting is the fourth paragraph which represents a sea change of policy from Attorney General Holder’s previous guidelines for his prosecutors.
Now state authorized marijuana activity will be monitored to prevent its use in other illegal drugs or other illegal activity, whereas before even if a state had legalized marijuana, the federal government viewed the marijuana growing as illegal activity subject to the federal law of drug trafficking in itself.
Clearly citizens in states that do not allow marijuana will not be as likely as other citizens to be subject to the harsh minimum mandatory sentences for marijuana drug trafficking cases, which should bring some disparity of sentencing arguments as well as disparity of prosecution arguments into play by enterprising defense attorneys in every jurisdiction.
Here in Tampa Bay, Florida we can only hope that a new constitutional amendment legalizing medical marijuana will not only make the drug legal for medicinal purposes, but will stop at least some overzealous federal prosecutions that often result in unfair minimum mandatory prison sentences that judges do not have the discretion to go under. Because prosecutors always had more discretion under the Federal Sentencing Guidelines, this roll back of harsh sentencing by Attorney General Holder will save many people from being branded as criminal by our government.
Your favorite Clearwater Criminal Defense Lawyer recommends that every American listen to last night’s heroic speech by Attorney General Holder in which he outlines the failed brutality of harsh minimum mandatory sentences in America, a country that incarcerates one out of every twenty-eight of it’s children as well as two million of its adults.
|DOJ for Fair Sentencing?
The truth is that minimum mandatory sentences especially in nonviolent drug cases are destroying far more lives than the underlying crimes being punished.
Federal Sentencing Guidelines have taken far too much discretion from fair minded federal judges and given that discretion to ambitious prosecutors out to make a name for themselves by scoring ever longer prison sentences in high profile drug cases.
Their boss, the Attorney General, states in his speech that the Federal Sentencing Commission and Congress need to rein these prosecutors in by working to reduce tragic outcomes by giving discretion back to federal judges. After noting that more than two million Americans are in prison he gave some hope for change:
The Department of Justice is determined to continue working alongside Congressional leaders, judges, law enforcement officials, and independent groups – like the American Bar Association – to study the unintended collateral consequences of certain convictions; to address unwarranted sentencing disparities; and – where appropriate – to explore ways to give judges more flexibility in determining certain sentences.
Too many people go to too many prisons for far too long for no good law enforcement reason. It is time to ask ourselves some fundamental questions about our criminal justice system. Statutes passed by legislatures that mandate sentences, irrespective of the unique facts of an individual case, too often bear no relation to the conduct at issue, breed disrespect for the system, and are ultimately counterproductive. It is time to examine our systems and determine what truly works. We need to ensure that incarceration is used to punish, to rehabilitate, and to deter – and not simply to warehouse and forget.
The Attorney General also described the enduring problem of disparity of sentencing in his speech:
I am concerned by a troubling report released by the United States Sentencing Commission in February, which indicates that – in recent years – black male offenders have received sentences that are nearly 20 percent longer than those imposed on white males convicted of similar crimes.
It took far too many years for the Sentencing Commission and Congress to finally change the disparity of sentencing in cocaine versus crack cases. Clearly the criminal justice system in America today is failing in its primary obligation to provide fair sentencing which as the Attorney General notes in his speech must also “promote public safety and deterrence.” We finally have an Attorney General, now free from political constraints from the President’s re-election bid, who can do what he knows is right, first by acknowledging the recent studies and reports against harsh sentencing and then by pushing the Justice Department to begin the hard work of creating fair sentences by giving federal judges more discretion in sentencing.
But why wait for Congress and the Sentencing Commission to change the Federal Sentencing Guidelines? Too often Federal Prosecutors are restrained by internal Justice Department rules and local Federal United States Attorneys who allow only one Defendant in a conspiracy to be granted a downward departure.
Why not allow greater use of downward sentencing by filing 5K co-operation motions more freely so that Judges will have the discretion to give fair sentences? Tampa Bay Defense Attorneys often find that Middle District of Florida prosecutors in Tampa deny federal judges the opportunity to go under minimum mandatory sentences by strategically failing to file an appropriate motion for downward departure even where there has been adequate co-operation just to keep the sentence high.
Your favorite Clearwater Criminal Defense Attorney applauds Federal Judges who use their discretion to construct fair sentences under the Federal Sentencing Guidelines range.
|Architect Eugenio Velazquez
A California Federal Judge recently sentenced a famous Tijuana architect who designed some of the city’s most beautiful landmarks including it’s modern Cathedral as well as Tijuana’s iconic, possibly ironic, Police station. The hapless architect was caught entering the United States with nearly 13 pounds of cocaine hidden in his minivan.
That weight of cocaine in the Middle District of Tampa, Florida easily nets a Defendant at least a ten year minimum mandatory sentence with the possibility of additional time under the Federal Sentencing Guidelines, whichever results with the higher number. A Defendant with no criminal history can benefit from the federal safety valve provision permitting the Judge to pierce the minimum mandatory, but it gives only a two level drop from the guideline score range, which easily is over ten years on thirteen pounds of cocaine.
So why and how did the California Federal District Judge go under the Federal Sentencing Range?
The Defendant claimed that drug traffickers threatened his life if he refused their demands to take the drugs over the border. Plus it helped that the Defendant had led up a ‘good life’ before his arrest. After all, Judges one hopes, are human.
Press Reports note that the Judge took into account the fact that the Defendant verified the threats against him:
The judge said the ability of Velazquez to verify threats against him were crucial to the reduced sentence. He was also acknowledged for leading “a good life” until his arrest.
The architect, fearful of drug-fueled violence in Tijuana, accepted his client’s offer to provide personal security while Velazquez crossed the border between home and work.Then the client — unnamed in the filing — demanded pay of $40,000 or drive drugs across the border….Velazquez’s attorney told reporters after the sentencing that a friend verified the claims for U.S. investigators. Both men said they were threatened at gunpoint.
As Mexican cartels move cocaine north from South America, they rely on “mules” to hide small packages of drugs in vehicle compartments and on their bodies to get past U.S. inspectors on the Mexico border. Many couriers are young, poor or adrift, desperate for a few hundred dollars.
To persuade the sentencing Judge to give a fair sentence, Clearwater Criminal Lawyers must first establish that the Defendant has lived a ‘good life’ then present facts in mitigation at sentencing with verifiable evidence.
|Lucas Cranach, Judith Victorious, 1530
Occasionally biology can be shown to be the direct cause of someone’s unlawful act. How responsible is someone for a crime committed where biology directly caused the crime, such as the murder of thirteen people in Texas by a shooter who was later found to have a brain tumor that seems to have been the bio-trigger of his actions? In essence aren’t we looking at the judo-christian notion of free will? Shouldn’t judges be given the discretion to look at bio-triggers where found as a plausible cause or contributor of an action because the Defendant must be found to have the unfettered free will to commit the unlawful act.
When evidence of a Defendant’s predisposition to commit violent crime was presented to Judges in a controlled hypothetical study of sentencing in a study recently reported in the journal Science, the Judges used the information to reduce sentences even where the bio-trigger arguably meant that Defendants were more likely to commit violent crime in the future, making at least one Clearwater Criminal Defense Lawyer glad that it was a hypothetical set of facts and that the hypothetical violent defendants live in darkest limbo rather than right next door.
This result of the study is path-breaking because Judges may be willing to reduce sentences where relevant biological testimony based on brain scans or other relevant neuroscience establishes that behavioral mechanisms of the mind and body were factors in unlawful conduct suitable for departure from sentencing norms.
Will Tampa Bay Florida Judges be willing to use this kind of evidence? Don’t count on it. And if our Judges use the information in mitigation should they also be able to use it in aggravation of sentence?
Though the study only dealt with violent crime sentencing, your favorite Clearwater Criminal Defense Attorney believes that Defendants who establish biological propensity, necessity or inevitability for nonviolent drug crimes would also have an excellent argument to go under unfair statutory drug crime minimum mandatory sentences, where the discretion from Judges needs to be expanded to find better results.
Are there any alternatives to long minimum mandatory prison sentences that ruin lives? Last year your favorite Clearwater Criminal Defense Lawyer suggested that defendants confronted with prison terms could be given the choice of prison time or a public flogging.
Now a philosophy blog looks at alternate punishment and finds that flogging might not be as inhumane as years of interminable lost time spent in prison. He notes that the long prison sentences are ineffective because people lack enough imagination and insight to fully comprehend how it would feel to lose one’s freedom for years within a prison. Here are some excerpts from The Philosopher’s Beard: Why prison doesn’t work and what to do about it:
|Public Flogging in the 1900s
Prison time is a very severe punishment. JS Mill likened it to being consigned to a living tomb. Any society that employs it should do so with care and restraint… Aside from failing in humanity, prison does not even perform well at the specific functions of a criminal justice system, namely, deterrence, retribution, security, and rehabilitation. We need to reconsider our over-reliance on prison, and reconsider whether other types of punishment, including capital and corporal punishment, may sometimes be more effective and more humane.
The fundamental problem with prison time, as Mill notes, is that its severity is hard to imagine… It is hard to imagine quite how it must be to be confined to a small space and narrow routine for periods of years, or even until death. There is no great drama to focus on. No particularly terrible things happen. Just more of the nothing…
A punishment that is hard to imagine will not work very well. First, people contemplating breaking the law will not be especially deterred by dread of the punishment… When one considers the advantages of flogging more generally one can see that it measures up well against prison time, especially longer prison sentences (more than a year). Its drama makes it much easier to imagine, indeed to over-imagine, and so it should work better than prison as a deterrent. For the same reason, it also seems better able to satisfy legitimate demands for retribution by those who have been wronged…Yet, unlike prison, achieving this effect doesn’t require that large chunks of a person’s life be thrown away, together with their relationships and mental well-being. Thus, exactly because of its barbarism, flogging seems a more efficient punishment because the total suffering it inflicts is less. In my view, that makes it more humane.
Me, just bring in a doctor with a large enough needle – the sight of that will be enough to keep your Clearwater Criminal Defense Attorney crime-free for years.
Our prisons are filled with people who shouldn’t be there. As this blog has noted minimum mandatory drug sentencing destroys more lives than do the drugs that are outlawed. And the extraordinary sentences served by nonviolent drug offenders have undermined American claims that our system of justice is fair and impartial, especially in Florida where one can be convicted without knowledge of drugs. Those involved in the criminal justice system such as prosecutors, judges and even Clearwater Criminal Defense Lawyers find that long sentences for nonviolent drug offenses are no longer extraordinary in a grinding process that continues to destroy lives at a blinding pace.
|Van Gogh, The Prison Courtyard
Today the NYT notes a recent Justice Department report that “public safety can be maximized without maximizing prison population.” Who knew? It’s a little late for the 218, 000 federal prisoners waiting for a justice system to catch up to common sense. And too bad for the many prisoners held in Tampa Bay, Florida for nonviolent drug crimes.
Your Clearwater Drug Defense Attorney recommends the following actions:
- The minimum mandatory sentence laws should either be abolished or be applicable only for violent crimes.
- By law prosecutors should be given less discretion in making charging decisions that force plea agreements and high sentences because of the fear that other charges will be added to an indictment or charging information.
- Our Judges need to be given more discretion to reduce minimum mandatory sentences.
- The Federal Bureau of Prisons should be given more incentives and direction to allow old prisoners, sick prisoners and nonviolent drug prisoners out of prison where there is little likelihood of recidivism without the need for Court Hearings unless either party objects to a reduction of sentence.