WHY MANDATORY MINIMUM SENTENCES SHOULD BE ABOLISHED FOR ALL STATE & FEDERAL CRIMES

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.






MUST LAW ENFORCEMENT OFFICERS ALWAYS TELL THE TRUTH WHEN QUESTIONING SUSPECTS ABOUT A CRIME

Your favorite Clearwater Criminal Defense Attorney was recently asked an interesting question about the strategy and tactics of police interrogations. Do law enforcement officers have any duty to be truthful while questioning suspects?

Here’s the question I received:

My twenty year old son was arrested in Tampa Bay, Florida for being in Possession of a Sawed-off Shotgun. After being questioned for a number of hours, police told him that they had a video which showed him with the shotgun. My son admitted he’d had the sawed-off shotgun. Turns out the Police lied to him about the video. There was no video at all. Can my son’s statement be thrown out because the Officer’s lied to him?

Like Degas haunting self portrait as a young man so this twenty year old Florida man faces a three year sentence for a firearm in Tampa Bay Florida.
Degas, Self Portrait


The police in Florida have no duty to be honest in telling someone suspected of a crime what the actual evidence against them is. In fact, police investigators are trained to deceive suspects as to the quantity and quality of evidence and Florida Courts would not view the dangling of a falsehood while fishing for the truth as police misconduct. 

However, there are other consideration which should be investigated that could help your son. First, since your son was in police custody, then he should have been given his Miranda warnings. Did he ask for a lawyer at any time during questioning? If so, then the questioning should have immediately ended.
Further, his treatment and the conditions he endured while in custody should be looked at. For example, in a federal drug case I once made the argument that Post Miranda statements from sixteen Defendants should be thrown out because of the way the Defendants were mistreated with no access to food, water, nor a toilet.
You’re right to be very concerned about the charge of Possession of a Sawed-off Shotgun as under Florida law that charge carries a minimum mandatory term of prison. 

Beyond attacking the interrogation of your son, the firearm should be inspected by a Defense firearm expert. Florida does make some exceptions for sawed-off shotguns under that statute; for example, if it can be established that the firearm was an antique or that the firearm is an exception as classified under the Federal law, which Florida recognizes, then a Defense Motion to Dismiss the charge would be successful.

Here’s the relevant Florida Statute:
790.221 Possession of short-barreled rifle, short-barreled shotgun, or machine gun; penalty.

(1) It is unlawful for any person to own or to have in his or her care, custody, possession, or control any short-barreled rifle, short-barreled shotgun, or machine gun which is, or may readily be made, operable; but this section shall not apply to antique firearms.
(2) A person who violates this section commits a felony of the second degree.
(3) Firearms in violation hereof which are lawfully owned and possessed under provisions of federal law are excepted.

Finally, a few years ago I tried a similar case before a jury in Pinellas. The trial was necessary because Pinellas County prosecutors refused to treat my sixteen year old client as the child he was, insisting that he accept a minimum mandatory three year sentence. They did not care that the sentence would have ruined his life. He’d used the shotgun to break into a Doctor’s car. During the Jury Trial I argued that since he did not use the firearm as a weapon, but as a tool, he was not guilty of Possession of the Sawed-off Shotgun. The Jury found him not guilty.