No one wants to be sentenced to prison, yet it’s an unfortunate fact that every day in the Tampa Bay area many otherwise good people are sentenced to prison. Why do some people get prison while others receive probation?
Here are the five most important factors that drive sentencing decisions toward probation or for prison by Clearwater, Florida sentencing judges.
- The nature of the crime. Many cases automatically call for long terms of prison rather than probation if there is a conviction for the crime as charged. These cases such as possession, conspiracy or trafficking of drugs such as cocaine, heroin or marijuana, aggravated battery, DUI manslaughter often call for minimum mandatory sentences from the judge.
- Prior misconduct established by showing that the defendant has been convicted of other crimes drives up the potential for jail rather than probation. Crimes of a similar nature to the new charged offense are even more troublesome as they tend to establish that the defendant is neither remorseful nor likely to change his criminal conduct in the future.
- The victim’s input especially in violent crimes or sexual crimes such as sexual battery not involving minors is by Florida law something which the sentencing judge must consider.
- Protection of the community from violent acts, sexual crimes, crimes against children, crimes involving drugs or scheme to defraud and grand theft of large sums of money are often used by sentencing judges and prosecutors to ramp up sentences from what in other circumstances might have been probation. In all of these cases judges will try to determine if there is a continuing threat to the community if the defendant is not sent to jail. Therefor it’s vital to establish why the unlawful conduct will never be repeated. Yet, defense counsel must argue especially in theft cases how can the victim ever receive restitution if the defendant is imprisoned.
- Although the Florida guidelines and scoresheets require strict adherence to the suggested guideline range of prison or probation, the United States Supreme Court at least in Federal cases has moved away from strict adherence to the guidelines in favor of more sentencing discretion for judges. And even within Florida law there are exceptions in which the guideline range may be avoided if certain conditions are met.
- The readiness of the defense to contest the strength of the allegations of criminal conduct by going to trial if necessary. Fundamental investigation and excellent preparation is a necessary requirement for getting the best possible result in Pinellas County criminal courts. The more likely it seems that the defense may test the guilt or innocence of the defendant by risking a trial, the more likely it will be that the Florida guidelines can be driven down to an acceptable level of probation rather than prison time.
There are many other variables that go into every sentencing decision. Not many of these variables can not be controlled by the defense, but some can. Those that can be controlled must be effectively utilized by a knowledgeable Clearwater criminal defense lawyer to persuade prosecutors to yield in either amending the charged offense to a lesser degree felony or by agreeing to go under the prevailing strict sentencing guidelines if they call for prison. If prosecutors believe that there is a credible defense which may yield a not guilty verdict, then a jail term is much less likely.
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 goal of Clearwater criminal defense lawyers is to find the best possible outcome for every client charged with misconduct. Sometimes the best outcome will not be obtained by fighting the facts of a case in a jury trial, but by pleading to the charge with the understanding that the sentencing Judge will give a predetermined sentence that represents the best result for a client.
Yet the paradox of sentencing is that the Judge in many ways is the least informed of any of the key participants. Further, many judges may be influenced to give unfair sentences by outside factors, such as by elections. Still most judges seem to strive toward fairness in sentencing. During a sentencing hearing the Judge may have the most knowledge of the law, but typically, it’s also the Judge who will have the least knowledge of the facts and circumstances of that particular case.
This is true because the defense lawyer and prosecutors have investigated the case as well as engaged in the process of discovery with ready knowledge of police reports, depositions of significant witnesses and a working knowledge of the strengths and weaknesses of their cases. The more complex the set of facts the more reliant the Judge will be on the lawyers for the defense and prosecution in determining what he believes to be a fair sentence.
The best defense lawyers will leverage statements from prosecutors and law enforcement that may become useful in persuading the sentencing Judge to give a reasonable sentence. A number of years ago as a prosecutor in Tampa Bay, Florida, I found an odd think often happened during sentencing hearings. Counterintuitively, the most effective argument in aggravation would be made by the defense lawyer. This would occur when the sentencing Judge would box the lawyer into a damning statement about his client.
For example in a drug trafficking case the sentencing hearing could turn on the following:
Defense Lawyer: “My client’s drug addiction may be a threat to himself, but I’m certain he can not be viewed as a threat to the community.”
Judge: “If he’s a threat to himself, he’s a threat to anyone who might be called to try to help him, isn’t he, including any first responders to a 911 call. Probation will not work here, only jail will protect him from himself and the harm he may do others.”
Here the Judge finds the most reliable evidence for what may pass as the truth in facts which are brought to his attention from the defense and appear to be against interest. If the prosecutor states that a Defendant is a threat, that’s to be expected as obvious, but if the defense lawyer brings it up, well then it must not only be certain but should be acted upon.
Defense counsel from the very first day on the case must be pushing the prosecutor toward the belief of the most significant key facts that will help the defense in sentencing even if there is abundant evidence of the Defendant’s guilt.
These narrowing facts that support mitigation at sentencing should be brought into every conversation with the prosecutor and law enforcement during the course of depositions and discovery. With effective planning, skill and strategy the most effective argument a Clearwater criminal attorney will make at sentencing often comes from the prosecutor.
Your favorite Clearwater Criminal Defense Attorney was surprised by the results of new study establishing that overweight women are less likely to receive a fair trial than others. Thin male jurors were the most likely to be biased against overweight women, while women and overweight men were least biased.
The study from Yale University found that bias to obese women was shown by male jurors against overweight women, especially when the men were thin as detailed in this excerpt from the full weight bias study:
Male participants judged the obese female defendant as significantly guiltier than the lean female defendant.
Additionally, the lean male participants believed the obese female defendant was more aware of having criminal intent as compared with the lean female defendant. They also viewed her as more likely commit a crime in the future as compared with the lean female defendant. Differences between ratings of the obese female defendant and the lean female defendant were only observed among male participants; female respondents judged the two female defendants equally regardless of body weight.
Until this study I believed that the most significant threat to fair trials in America was biased information spread thru cellphone technology, but latent bias within the criminal justice system based on a Defendant’s personal characteristics undermines the very notion that justice can ever be fair.
If male jurors are biased isn’t it likely that male judges may also be biased in sentencing, that male probation officers may be more likely to violate and male prosecutors more likely to ask for harsher sentences when dealing with overweight female defendants? Are men more judgmental of heavy weight women because they view being overweight as a sign of weakness and lack of control? Do these men believe that somehow women have some duty to make themselves appealing to them?
Clearly Tampa Bay criminal defense lawyers must make certain that everyone involved in the criminal justice system be unbiased and fair by probing for potential bias expressed verbally or nonverbally not only while picking potential jurors during voir dire but through the entire process.
Clearwater Criminal Defense Lawyers would like to believe our sentencing Judges are always fair and impartial. As Americans all of us would hope our Judges stride above the political fray.
Yet a recent study shows that Judges give much tougher sentences for violent crimes with ten percent more jail time when elections for judgeships are close at hand. This holds true even if the Judge himself is not running for re-election.
Here’s an excerpt from the study Crime, Punishment and Politics: An Analysis of Political Cycles in in Criminal Sentencing:
Sentences are around 10% longer at the end of a judge’s political cycle than the beginning; deviations above the sentencing guidelines increase by 50% across the electoral cycle….
We find that sentence lengths exhibit a break precisely at the end of judges’ political cycles, but not at the end of other officials. We can rule out cyclical patterns in sentencing due to factors other than politics by examining sentencing by retiring judges, who do not face electoral pressure and the sentencing of less serious crimes, about which the public (and potential competitors for a judge’s seat) are less concerned.
|Toulouse, Portrait of Van Gogh
Do the Judge’s do this purposefully or are they swept into it from political braying? Is it the fear of opposition? The dread of defeat? My hunch is that Judge’s correctly calculate that there is closer press scrutiny for any newsworthy information near elections.
Sentencing is always more than cold cool calculations of scoresheets and guidelines. In my criminal law experience having someone from the press attending my client’s sentencing should be calculated as another aggravating factor on Florida Sentencing Scoresheets and Guidelines. The Judge has little incentive to be lenient. The Defendant may do another heinous crime by morning if he sets the man free. And if the Judge is determined to show mercy with no jail despite the victim’s tears and fears, he’d better make it clear on the record why as his reasoning is the news.
A Florida Circuit Judge loses nothing by being too stern, but could lose a future election by being too soft or worse find himself the butt of jokes and a laughing stock at his Country Club golf course. After all, only a handful of Largo Defense Attorneys will understand the Judge was just trying to be fair, but their not members of his club.
Forensic laboratories are failing to abide by the high standards American justice demands and have come under scrutiny for lacking scientific standards leading to unacceptable errors all over the country. The reliability of forensic evidence is a recurring problem in federal FBI labs as well as many state labs and in Tampa Bay Florida prosecutions. What happens when the forensic laboratory tests from the state of Massachusetts can no longer be trusted? How could their problems have any significance for Clearwater Criminal Defense Attorneys in Florida?
Here’s an excerpt from an email sent by attorney Miriam Conrad of Massachusetts who shows us how interconnected Florida is to every other state in the country when it comes to faulty forensic laboratory results:
|Bastida, Doctor’s Laboratory
I am writing to alert you to an exploding scandal in Massachusetts involving misconduct by a chemist in the Massachusetts state drug testing lab. The scope of the misconduct hasn’t been fully revealed, but is serious enough to have resulted in the closing of the lab.
While the consequences are most immediately apparent for our clients herein Massachusetts whose federal cases involved the chemist or state lab, I wanted to notify you in the event that you have any clients (past or present) whose sentences were enhanced (career offender, 851, ACCA) based on a Massachusetts drug conviction. The chemist worked in the lab from 2003 until 2012. We have recent information that at least as of 2010, she was responsible for quality control in the lab, so all results from that period of time — whether or not she did the testing — may be in doubt.
Although there are many good lab technicians such as the forenic lab that recreated a novel a blind person wrote without ink. There are also failed lab technicians who place innocent lives in jeopardy of false convictions. As you can see fabricated evidence or faulty forensic laboratory analysis can directly impact the prior record of a Defendant even if the lab test was done years ago by placing doubt upon any prior convictions based on evidence from that laboratory. And it means that Clearwater Criminal Lawyers will filing Motions for Resentencing after checking up to see if clients who were sentenced here in Florida had any prior criminal acts from Massachusetts which were wrongfully counted.
|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.
When parents are incarcerated what happens to their children – will their children be sent to foster care in Tampa Bay or will their children be sent to live with relatives who may not want them? Well known and alarming foster care failures in Tampa, Clearwater & Pinellas Florida have endangered the very lives of the children foster care was meant to protect.
In any case involving prison for parents the Judge should be made fully aware by the Criminal Defense Attorney of what the State of Florida intends to do with the children before sentencing. If the plan is to have the children sent to live with relatives its important to find out if the relatives have the means, passion and integrity to care for the children and depending on the ages of the children to determine if this is in their best interests.
With some finesse the Pinellas Defense Lawyer should become an advocate for the children urging the Court to weigh the damage incarcerating the parents will do to the children against the nature of the crime, the severity of the crime and the prior record of the parents. Clearly, the safety of the children should be the Court’s chief concern followed by the need to punish the parents under Florida law, in which case parenting issues during incarceration becomes critical as does this Florida Manual for Incarcerated Parents which contains important legal forms such as a power of attorney.
An excellent article, When a parent is incarcerated: a primer for social workers, helps to explain the many complex problems that can arise when parents are incarcerated, particularly if their children must go into foster care. It should also be helpful for attorneys to use in sentencing mitigation and helping clients cope with the anxiety of being away from their children.
|Van Gogh, Portrait of Camille Roulin, 1888
Portrait of Camille Roulin, 1888,
The victim’s family forgives if not forgets. Despite their pleas for mercy – even for no jail time for the Defendant in a DUI Manslaughter case – a local Jazz Singer’s family members found that only the Judge has the power to sentence a convicted man.
The Jazz Singer, a preacher’s daughter, was known for her beautiful voice, her kind forgiving heart and a keen sense of jazz tempo while performing in Tampa Bay, Clearwater and Pinellas County, Florida.
“You’re very forgiving,” the Judge said softly to the religious family, then voice hardening the Judge looked toward the Defendant saying, “But the court has decisions to make….You’re going to take responsibility.”
The Judge sentenced the Defendant to the maximum amount of time, 15 years in prison for the conviction. The Defendant had a prior record, anger issues, a drug habit and on the night of the incident mixed prescription pain killers, Xanax, Vicodin with vodka before causing a terrible crash sending the Jazz Singer’s car airborne according to an article in the St. Petersburg Times.
|Billie Holiday, a great American jazz singer, songwriter and actress. Her vocal style, strongly inspired by jazz instrumentalists, pioneered a new way of manipulating phrasing and tempo. She died in 1959.
Professor Douglas Berman writes about the futility of long prison sentences for white collar defendants involving fraud and insider trading. At first glance he persuasively argues that for white collar criminals ‘shaming sanctions’ could be a more effective deterrent than jail.
Isn’t the Professor really suggesting that rich men, men of culture perhaps not unlike the Professor himself, should not have to live by the rules that the rest of us must follow and if caught need not suffer the consequences the rest of us would face.
No, the real problem with sentencing in America is in too much prosecutorial power in charging decisions, too little discretion left in the hands of Judges, and the harsh sentences for victimless crimes such as routine 25 year minimum mandatory sentences for drugs. Isn’t eleven years for an assault on the free market system and a take of nearly 54 million dollars about right? Or as one observer noted, “No matter the crime, if the rewards are great enough, people will ignore the risk of getting caught.”
Would a sign saying, “I am an INSIDER TRADING THIEF,” hung around the Defendant’s neck effectively persuade others contemplating similar crimes not to corrupt capitalism?
Nor does the Professor note that the NYTs reported that Judge Howell did reduce the guidelines sentence based on personal factors including his charity work in the community, his age and his advanced diabetes which the Court noted would make his jail time harsher than time served by a typical inmate.
And the Judge makes some telling points that show shame to be a weak cure for this disease: “Insider trading is an assault on the free markets,” said Judge Holwell, who also imposed a $10 million fine and ordered Mr. Rajaratnam to forfeit $53.8 million in ill-gotten profits, “His crimes reflect a virus in our business culture that needs to be eradicated.”
Sentenced to 11 Insider Case – NYTimes.com
Ten top American fraudsters – Telegraph
Here are two paragraph excerpts from the Professor’s Time article. What Will Deter Insider Trading? | TIME Ideas | TIME.com
Raj Rajaratnam, who was convicted of masterminding the biggest hedge-fund insider trading scheme in American history, federal prosecutors urged U.S. District Judge Richard Holwell to give him at least 20 years in prison “to send a clear and unequivocal message that illegal insider trading will not be tolerated.” Judge Holwell imposed 11 years — a relatively long sentence compared to insider-trading-Hall-of-Famers such as Ivan Boesky, who served only two years in federal prison.
A variety of shaming sanctions were widely used during the 18th Century in America, in part because prisons did not then exist and in part because shaming was viewed as a humane alternative to the death penalty, banishment or brutal physical punishments. More recently, academics have debated the potential virtues and vices of modern shaming sanctions — often after a judge has ordered a shoplifter to wear publicly a sign saying “I am a thief” or a police department has published drunk drivers’ names on billboards. Because we have never tried to make white-collar offenders “pay” for their crimes through extensive and prominent use of shaming sanctions, I cannot say with confidence that this alternative form of punishment will be more effective. But because deterrence research suggests very long prison terms for white-collar offenders may greatly extend their suffering (and taxpayer-funded imprisonment costs) with no corresponding benefit to society, I think it is time to start considering creative alternatives.
Federal Crimes Trial Lawyer & Criminal Defense Attorney in Florida
White Collar Crime Criminal Defense Attorney in St. Petersburg, Pinellas, Clearwater, FL
Criminal Defense Attorney in St. Petersburg, Pinellas, Clearwater, FL
Raj Rajaratnam sentenced to 11 years in prison for insider trading – Telegraph
Raj Rajaratnam; insider trading; sentence; hedge funds; federal prison – Los Angeles Times
FBI — Hedge Fund Founder Raj Rajaratnam Sentenced in Manhattan Federal Court to 11 Years in Prison for Insider Trading Crimes
Prison Time for Inside Trading Is Climbing – WSJ.com
Sentencing Law and Policy: Purposes of Punishment and Sentencing
|Stealing fire isn’t singe free — Prometheus having his liver eaten by an eagle. Painting byJacob Jordaens, c. 1640