Monday, July 21, 2014

Nearly 50,000 Current Federal Prisoners Will Have Their Drug Sentences Reduced

Nearly 50,000 federal prisoners will receive a two level drug reduction that on average will result in more than two year reductions of their original sentences.

Federal Sentencing HandbookThe Federal Sentencing Commission unanimously voted to retroactively apply the Attorney General's recent decision to grant two level drug reductions in federal drug cases to achieve greater fundamental fairness for those already sentenced. Although the Sentencing Commission states that federal judges may apply the new two level lower guideline range in older cases, there is no requirement that federal judges do so. In fact because of the significant number of current federal prisoners who were sentenced under harsh federal guideline ranges, there will likely be a backlog of cases even for those who should be released under the new drug provisions.

Though the Commission states that fairness is the over-riding consideration for the retroactive federal drug sentence reductions, a look at the Commission's memorandum announcing the decision gives other reasons.


1. The Federal Bureau of Prisons population exceeds capacity by around 32%. Under today’s change addressing this problem, the Commission estimates that  46,290 offenders would be eligible to have their cases reviewed by a judge to determine if their sentences should be reduced;
2. Offenders eligible for a reduction could have their sentences reduced by an average of 25 months, or 18.8%. 
3. They would still serve 108 months, on average. 
4. Over time, these sentence reductions could result in a savings of up to 79,740 bed years (a bed year is the equivalent of one federal prisoner occupying a prison bed for a year).  

What the Commission is really saying is that because the federal prison system is now jammed by nearly a third over its actual capacity due to the harsh federal sentencing guidelines which the Commission created, the Commission now needs to save a few thousand bed years and this seems like a sensible way to do it. It's not about fair sentencing; it's about clearing the federal prisons for the next war on American citizens - not one hopes, another futile war on drugs.

For far too long the federal sentencing guidelines have needlessly destroyed the lives of our fellow Americans. It's good that the sentencing commission as well as politicians from both parties finally agree that federal drug sentences were too harsh for too long. 

Yet what does this say about the cowardly federal judges who did not have the courage to sentence federal drug defendants to treatment rather than punishment at the time of the original sentencing hearings? What does this say about the craven federal prosecutors who argued for ever more prison time for nonviolent drug crimes even when it was firmly established that prison would be of no benefit to the defendants nor for society? 

More than anything that can be bought or sold, in life what matters most is time. Time to spend in the countess ways that makes each of our lives worth living. And it was time that was stolen from these defendants. How will the lives of those needlessly imprisoned ever be made complete? The least these federal prosecutors and judges can do is to set new sentencing hearings for each of these men with all deliberate speed as if that hearing were for someone they knew from their own neighborhood or from their own family. 


Tuesday, July 15, 2014

THE FIVE BEST WAYS TO AVOID FELONY CHARGES & NOT LET A FELONY RUIN YOUR LIFE

A felony charge in Florida is defined as a criminal act for which a judge may give probation, house arrest or a prison term of more than one year; whereas for a misdemeanor a judge may give probation or jail only up to one year. When officers conduct any criminal investigation or make an arrest for any type of criminal charge one's reputation, freedom and future are always at risk. 


Handcuffs are used in felony arrests in Tampa Bay, Florida. When a felony is charged the risks become much graver, yet even a felony need not ruin someone's life if the charge is handled in an effective manner. 
Here are the best ways a clever criminal defense lawyer can work with you so that even a felony charge need not ruin your life.

  1. Attempt to have the charged felony dismissed. The facts of the case should be filtered thru any laws that may prosecution of the case impossible. For example, one defense to a felony aggravated battery charge would be self defense, which if successfully deployed could result in complete dismissal of the criminal charge. In an aggravated assault case a successful defense could in dismissal of the charges if facts establish that the victim was not in actual fear of immediate bodily harm from the alleged misconduct.
  2. Make every effort to have the felony charge reduced to a misdemeanor. If the charge can be reduced then the criminal justice system is limited to control of a defendant's life for a maximum time of one year. For example, in an aggravated battery the charge should be reduced to a misdemeanor battery if the victim's injuries are not severe. In a felony grand theft case the charge could be reduced if the amount were proven to be under the felony threshold in Florida of $300.
  3. Make certain that if you plead to a felony charge you're given a withholding of adjudication. In some felonies, such as third degree felonies or cases involving a juvenile, the judge may have the discretion to literally withhold adjudication of guilt, meaning that a defendant may later honestly claim to a future employer that he was not adjudicated for the felony.
  4. Reduce punishment so that you do not serve time in prison. When a criminal case is unlikely to be won because of significant evidence of guilt, then it may be necessary to reduce the punishment by persuading prosecutors that there is no justification for prison time. For example, it's important to remind prosecutors that in most nonviolent crimes serving prison time for someone who has no prior record is unlikely to prevent further crime and in fact may have the opposite effect of making the person a hardened criminal.
  5. Help you articulate why the felony happened and why it will never happen again so that you can become a functional member of the community. If you can demonstrably understand the underlying causes that triggered the crime you'll be much more effective in living a full life again. For example, in job interviews someone convicted of a felony can help assure a prospective employer by showing what was learned from the felony charge and punishment and why going thru that has made you a better person - a person more fit for the job than others who didn't have that learning experience.
If you and your criminal defense lawyer work hard to reduce the consequences of any felony charges, then the criminal justice system in Tampa Bay, Florida need not ruin your life.

Thursday, June 26, 2014

WILL LAW ENFORCEMENT OFFICERS ABIDE BY THE NEW SUPREME COURT CELL PHONE SEARCH REQUIREMENTS

Will the Supreme Court's recent cell phone search decision really protect cell phone users from improper police searches? The good news is that the Supreme Court threw out the red hearing of officer safety which law enforcement often use as an excuse in warrantless searches. 

In the vast majority of cases a cell phone can not jeopardize officer safety. Yet cowardly courts would buy into the facetious arguments of prosecutors. Chief Justice Roberts noted the distinction between checking a cell phone to be certain there's not a dangerous razor blade hidden within as opposed to roaming thru the contents of a phone to randomly find unlawful acts. 


Justice Roberts not only protected his cell phone from improper police searches but protect ever cell phone in Tampa Bay, Florida and the United States from government intrusion.
Justice Roberts' cell phone is safe
Further, Roberts noted that the potential for destroying incriminating evidence by remote wiping of the phone was unlikely and something that the officers could stop by simply taking out the phone battery or by slipping the phone in an aluminum case. For too many years judges have given law enforcement officers the benefit of the doubt in new technology even when logic, if not common sense, was strained.

Although the decision requires a search warrant to search the phone of a defendant for cell phone evidence Robert's left some leeway in a "now or never" situation and even then a worst case scenario would merely be that the evidence might not be useable to gain a conviction at trial. Roberts further noted that the cell phone of today are much more than phones with the capacity to show much more of a person's life, frame of mind, political standing and common interests.

In Florida the law has been settled for some time and at least one Tampa Bay, Florida judge had the courage to no longer allow officers to search based on a lie under oath. Last year the Florida Supreme Court made a similar decision to restrict warrantless cell phone searches when it threw out evidence gleaned from a cell phone in a robbery case. It's good that the United States Supreme Court has now settled the issue of personal privacy rights in favor of citizens as a decision for law enforcement would have reduced the privacy of every American.

Friday, June 20, 2014

NEW BILL WOULD STOP FEDERAL PROSECUTORIAL MISCONDUCT BY PROVIDING FOR OPEN-FILE DISCOVERY



Despite the Department of Justice's new 'open discovery rules' and 'ethics re Brady seminars' many federal prosecutors continue to give inadequate discovery in violation of the prevailing Brady rules. In an attempt to address the 'epidemic of Brady violations' a new bill proposed in Congress by the Center for Prosecutorial Integrity would add muscle to the Brady rules by "...requiring prosecutors to implement an Open-File policy" for the following evidence:


In the future Perry Mason will be given timely discovery of the federal prosecutor's entire file.
Prosecutor, give Mason the damn discovery!
1. All witness statements would be subject to discovery.
2. All forensic test results would be made available to the defense.
3. All other evidence gathered by the prosecution that exists within the case file of the prosecutor.

It's clear that Brady violations are the leading type of prosecutorial misconduct perpetrated by the Government while prosecuting federal criminal cases.

Clearly prosecutors have an obligation to do their best to seek justice rather than merely to seek convictions yet too often prosecutors have tunnel vision that rejects evidence of innocence. Yet too often prosecutors view any evidence inconsistent with guilt as unreliable. But this is not a game. This is the lives, reputations and future of those who face the entire power of the federal government. Shouldn't they have access to all of the evidence, not just the evidence which prosecutors say is Brady material? As long as prosecutors decide which evidence is Brady material, there'll be incentive for prosecutors to obscure the actual value of evidence for the defense.  

For fair and just outcomes in federal criminal cases in the Middle District of Florida in Tampa and thru out the United States it's essential that all evidence must be given to defense lawyers. Why would prosecutors want anything less if they are interested in providing justice instead of mere convictions? 

The only way to insure that all evidence is made available to the defense is to have a complete Open-file system as the proposed bill would mandate. Then everything within the prosecutor's possession goes straight to the defense. Then let an American jury find a just verdict having seen all the evidence the lawyers provide. 

Thursday, June 19, 2014

OLDER FEDERAL JUDGES SHOULD HAVE TO PASS MENTAL EVALUATIONS OR NOT BE APPOINTED FOR LIFE

One federal judge who recently died was still going strong and even trying cases at 104 years of age. I'm not so certain I'd have enjoyed being a defendant in his courtroom, but as an attorney it'd have been beneficial learning from the judge's wealth of experience and knowledge. 

In federal courts in Florida the judges are appointed for life but should be subject to mental tests because the judges can not evaluate themselves effectively and defendants have the right to have a mentally competent judge presiding over their cases.
Only time will tell.
Would the broad sweep of time have given the judge special insights into the failure and success of federal law with a 'this too will pass' mindset of not letting the details be too troublesome? Or would he have been a nuts and bolts man looking over his shoulder to the federal court of appeals afraid  any slight error might result in being over turned? 

Yet for all of any judge's value to any particular court, within the American system of government only federal judges are appointed for life. Life can be a very long pleasant span of time despite an occasional Cuban cigar, the smoking of which at least in the Middle District of Florida in Tampa is a requirement for appointment.

So how long is life? Over many generations lifespans have expanded rapidly. In Elizabethan times Shakespeare died a fairly old man at age 52.  By the time of the constitutional convention in America the average life expectancy of an American was only 35 years; by the year 1900 the life expectancy for an American had gone up to 47 years, still quite young compared to the life expectancy of Americans by the year 2002 which was 77 years of age. 

But it's more than age, it's really a question of whether the judge still has the perspective, knowledge, talent, acumen and lets face it, the mental sharpness to be a federal judge. Sadly if the judge is losing his marbles, he's the least able to recognize it. The New Yorker recently had a brilliant article from a sufferer of parkinson's who tries to evaluate his mental decline. Though doctors give him tests that indisputably show decline, his internal evaluation of his mental capacity is more benign. 

Perhaps it's finally time to reconsider the constitutional protection afforded federal judges with life time appointments? Even a twenty year appointment would have a beginning and an end. The greatest benefit of a life appointment is that there is no end in sight, making it less likely that a federal judges would bow to political or popular favor in the way an elected state judge might.

If the term for a federal judge remains life, then federal judges should not be allowed to evaluate themselves as being mentally and physically fit to serve after a reasonable age. Is the judge mentally competent? There needs to be a system in place that forces federal judges to accept the evaluation of trained professionals who determine whether the judges are fit and this should include every federal judge even those on the Supreme Court.

Wednesday, June 18, 2014

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.