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.
Your favorite Clearwater criminal defense lawyer is often asked before sentencing if a particular Judge is human. As it’s remotely possible that some stray Judge will one day read these very words I’m tip tap typing as you glance over this page, I’ll reluctantly decline to answer that question.
|Is this a fair Judge?
Instead I’ll pose a slightly better one – Does your Judge know that you’re human? And if not, why not? If you were on a job interview wouldn’t you do everything possible to persuade the interviewer about all the impressive things you’ve done in your life? You’d also talk about the even better things you plan to accomplish in your future.
It’s true that when it comes to sentencing the most important factor is often how the Florida scoresheets and guidelines apply to a specific set of facts. Yet fair sentencing decisions must always include much more than mere guidelines calculations otherwise our Judges are nothing more than human (or not so human) calculating machines.
The best judges want a firm explanation of more than just the basic sentencing guideline range blended with bland facts and circumstances of a case. The best judges also delve into the motivations, pressures, family life, failures, successes and goals of a defendant.
What if you don’t have the best judge or for that matter what if have a judge you don’t suspect is human? Any judge can be led toward making good decisions that take into account a Defendant’s entire life story. In Federal Court in the Middle District of Florida in Tampa, Federal judges have been told by the United States Supreme Court that the Federal Sentencing Guidelines are advisory not compulsory and that the Judges must examine in detail the personal characteristics of a defendant before sentencing. Clearly all judges should make an effort toward understanding a defendant before applying any sentence.
A strong, effective Clearwater criminal lawyer will push the judge toward wanting to learn more about the defendant’s entire life history, learning not only what brought the defendant to this point in his life but why the defendant deserves to have a compassionate judge, a judge eager to find the best possible sentencing solutions with as little punishment as possible for a successful outcome.
Tampa Bay Criminal Attorneys aren’t the only ones who believe federal judges must have more discretion and flexibility in sentencing.
|Soaring Safety Valve
For many years the Federal Sentencing Guidelines have taken sentencing discretion away from judges while giving prosecutors ever greater control of sentencing by determining how charges are brought before federal grand juries. When a minimum mandatory sentence is called for under the Federal Sentencing Guidelines, a judge is rarely free to go under the required sentence unless a Defendant has no prior criminal conduct under the Safety Valve provision or a Defendant co-operates thru substantial assistance to such an extent that other co-defendants are arrested at which time a prosecutor may file a motion for downward departure.
The problem with the Safety Valve is that it is applicable only in drug cases. The problem with substantial assistance is that United States prosecutors often fail to file 5K or Rule 35 motions for downward departure even where there has been excellent co-operation. Under the statute the Judge does not have jurisdiction to hear any argument for substantial assistance unless the prosecutors file a motion thus giving the prosecutor more sentencing power than the sitting Federal District Judge appointed for life.
The press release from a Senator sponsoring the bill notes that from 1991 to 2011 the number of minimum mandatory penalties doubled. The Sentencing Guidelines have increased sentencing lengths for other crimes even where minimum mandatory sentencing doesn’t apply. The resulting over-incarceration has been catastrophic for Americans as the current federal prison population of 217,000 is double what it was in the year 2000. The cost in wasted dollars is huge, but the cost in wasted lives is even greater; as the American prison system fails in rehabilitation while only providing ever greater punishments for crime.
The bipartisan Justice Safety Valve Act of 2013 would allow federal judges greater use of the Safety Valve provision in a much needed way so that judges will have the discretion to give fair sentences in all federal cases not just drug cases.
An expansion of the Safety Valve provision is beneficial for federal defendants in that fair-minded federal judges will have an opportunity to do what they believe is right under the facts and circumstances of each case listening to arguments of Clearwater Criminal Defense Lawyers as well as prosecutors to arrive at the best sentence rather than just the harshest sentence.
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.