Friday, February 24, 2017


Florida has 118 state crimes that trigger tough minimum mandatory sentences, which is close but not yet outdone by the 145 federal criminal laws that have harsh minimum mandatory sentences. Minimum mandatory sentences are an unfair punishment because they take away the sentencing judge's discretion to make the best sentencing decisions. This is especially true for the many Florida drug crimes that result in arrest such as possession of marijuana, cocaine, heroin, methamphetamine, oxycodone, prescription pain pills, prescription fraud, steroids, xanax, hydrocodone and codeine. 

More Discretion well fits your
Favorite Judge
Possession of only a small amount of any of these drugs can trigger a minimum mandatory term of many years imprisonment ruining the lives of not only the defendant, but his family, friends and loved ones. Drug charges are inherently nonviolent felonies that should not result in arrest or jail sentences. Even cases that involve the sale of drugs should not result in long prison sentences. Yet in Florida sale or possession of even the smallest quantities of illicit drugs can require judges to give harsh punishment of years of prison.

Recently a group of conservative and liberal Florida lawmakers unanimously agreed to send a prison diversion bill out of committee for a vote in the Senate. The goal of the bill is to end minimum mandatory sentences in Florida for nonviolent offenses and to give Florida judges the discretion they need to create fair sentences with better sentencing options.

As citizens we need to make our representatives understand that we want all of these state and federal unfair minimum mandatory sentencing laws changed. Nonviolent people our spending too much time needlessly imprisoned in Florida and throughout our country to the point that federal prisons wrongly hold thousands of prisoners beyond their release dates.

Thursday, February 23, 2017


Despite attempts to overlook bias for the goal of fair sentencing at least one federal judge has confessed to over-sentencing defendants to hundreds of years in prison. Most of the over-sentencing results from federal crimes where minimum mandatory sentences are applicable. Many of those crimes are drug related. The crimes are broken down by substance such as trafficking and conspiracy to traffick in marijuana, heroin, cocaine (powder versus crack) or methamphetamine. 

A new study by the sentencing commission on recidivism rates among federal drug trafficking offenders offers plenty of evidence that the sentences given by judges in these crimes is far too harsh. 

Bayer Bottle of Heroin
Cough Suppressant, 1910
Sentencing commission reviews are useful and important studies to leverage unique sentencing arguments. Here are some important facts found by the sentencing commission that lend support to arguments that the minimum mandatory prison terms set by federal statute for these crimes are far too harsh. These facts may also be used for mitigation arguments at sentencing to secure a below guidelines sentence if the federal guidelines call for a prison term above the minimum mandatory threshold. 

First, the reincarceration rate for federal drug traffickers is only 23.4% while just over half were rearrested for a crime. The most serious crime most likely to be arrested for was only a misdemeanor assault.

Second, those who did commit another crime after being released from federal prison did so at a median time of 25 months from release. This is a good argument for less actual imprisonment but more supervision upon release.

Third, age of the defendant is an important factor in risk of future crime. The older the defendant is at the time of release the less likely it is that he'll be arrested again.

Fourth, other than the age of a defendant the criminal history score is the most likely indicator of recidivism. This makes sense since the prior criminal acts of the defendant would tend to establish greater risk of association with future criminal activity.

The question of recidivism goes directly to a key issue in fair sentencing of whether the defendant has some likely predisposition to commit another crime after conviction and release from prison. The facts found in the new report can be useful in making arguments for reduction of sentences.

Wednesday, February 22, 2017


Recently we looked at the musings of a retired federal judge who confessed that she over-sentenced defendants to hundreds of years in prison. Now let's look at how a Federal District Judge in Florida confronts his task of fair sentencing in a Duke Law School PDF, Who appointed me God?

Missing Winston Churchill
His goal of fair sentencing was made more difficult at least in regard to possible bias after a defendant he'd recently sentenced shot at him while the judge was sitting at home in his favorite chair with his wife a few feet away. Though the bullet missed, the judge could not quite stomach Winston Churchill's belief that "Nothing in life is so exhilarating as to be shot at without result."

While looking at his own possible bias he notes that his staff believes he seems to give female defendants more lenient sentences. He justifies this by noting that unlike most male defendants the women often represent the sole support for children and other dependants. 

In looking for a just punishment he examines the inherent conflicts that arise with giving cooperators substantial assistance and the fact that prosecutors too often control the process since the judge can not give credit for cooperation unless the federal prosecutor files a motion for substantial assistance. Further, the judge notes that he tries to avoid randomness in sentencing so cases are consistently sentenced over a wide range of factual situations. This of course is possible only in cases that do not happen to trigger the 145 federal crimes that have federal minimum mandatory sentences.

And there lies the difference between an honest retired judge bemoaning her forced needless over-sentencing of hundreds of years and a sitting judge who blindly believes federal cases where he has actual sentencing discretion make up for all the ones where he has none. When he can truly make a difference for good in the lives of defendants, defendant's families and for victims, he does, and that's commendable. Yet it's troubling that he doesn't spend any time acknowledging the truth that for 145 federal crimes that trigger harsh minimum mandatory sentences he's just another voiceless cog within our corrupting criminal justice system justified and given authority by the false pretense that our federal judges have sentencing discretion.

Tuesday, February 21, 2017


In a searing article a federal judge confesses to sentencing defendants to hundreds of years more than she wanted to because she had no choice due to the power of federal prosecutors in sentencing and the necessity of giving minimum mandatory sentencing for the 145 federal crimes that require it. She also notes that the United States with less than five percent of the world's population incarcerates twentyfive percent of the prisoners in the world. She could also have mentioned some of the obvious unfairness in our sentencing including the fact that although rates of drug use for whites and blacks in America are the same blacks are ten times as likely to go to prison as whites.

Finding the
Key to Fair Sentencing
After noting that sentencing factors should focus on the four elastic and at times conflicting sentencing goals of retribution, confinement, deterrence and rehabilitation. 
Yet she often had only one sentencing tool at her disposal, the authority to confine and punish federal defendants with long minimum mandatory prison terms.

... I was often prohibited from assessing a defendant’s history, personal characteristics or role in the offense. In sentencing, where judgment should matter most, I could not exercise my judgment. I felt more like a computer than a judge. And I was not alone. 
Over the years, many of my colleagues on the federal bench felt the same frustrations. 
This problem upset me as soon as I was appointed in 1994. Mandatory minimums were almost always excessive, and they made me feel unethical, even dirty. After seven years, my patience had run thin and my conscience was troubled; I began to consider resigning. I sought the advice of a revered mentor, a federal judge with more than 30 years of experience. He pointed out that quitting would serve nobody, as another judge would be required to impose identical sentences anyway. He also said that if I left, the bench would lose a judge who could advocate for criminal justice reform through her decisions. 
So I remained. But to this day, I am pained by many of the sentences I was required by law to impose. While I bore the title “Honorable Judge,” I felt less than honorable and more like a complicit tool of an unjust system.

Here is a federal judge who clearly cares about the people she is sentencing as judges often did in the era before unfair minimum mandatory sentences. Today it's much easier to simply give harsh sentences than to give fair sentences. Every judge knows that it's much less likely that a federal appeals court especially in the eleventh circuit will overturn an overly harsh sentence than a fair one. 

It's interesting and sad that this judge saw herself as little more than a computer or an adding machine for calculating the hundreds of years in prison others must serve. And somehow especially disheartening that her conscience only awoke to make her public attack on harsh federal sentencing after she'd safely retired. 

For judges still working, I ask you, where are you? Where are your voices. Why aren't you speaking out against the injustices that take place in your courtrooms every day? 

Wednesday, February 15, 2017


Finding the appropriate sentencing guideline range is one of the most important factors in sentencing since judges and prosecutors use the guidelines as a base point for sentencing. When the sentencing guidelines call for prison time it's very important for to find the best ways to avoid the implications of the guideline range so the judge has better sentencing options. Within the state and federal sentencing guidelines systems prosecutors often have far more power than judges in determining the final outcome of sentencing so judges must be stopped from giving prosecutors preference in sentencing to achieve the best results for defendants.

Weighing the real costs of prison.
Vermeer, Woman Holding a Balance
The most important factor in sentencing other than the application of the sentencing guidelines is persuading the judge who may be human that you're a person and not just a case number and that just maybe you're a human too. Let's face it judges see the worst of humanity in their courtrooms every day. Imagine spending hour after hour listening to lawyers constantly arguing and belittling each other. It'd make anyone less inclined to be sympathetic. And it would be difficult to actually listen for mitigating factors in sentencing thru the fog of arguments.

Ultimately the goal of the process for some judges seems to be simply to harshly punish rather than to find the best remedy for whatever caused the criminal allegation in the first place. For a defense lawyer the driving force of presentations to the judge should be to read the judge's mind to find the best arguments for a non-prison sentence of probation, house arrest or work release. For most cases within the criminal justice system a prison only ruins the lives of the offender and his family and does nothing to help rehabilitate him. Is jail really necessary for a drug crime such as possession of cocaine or for a crime against property such as grand theft? What are the real costs of sending someone to prison?

Does the judge consider that the defendant will lose his job? Does the judge know that the family will lose their home? Does the judge understand that the children will no longer have a parent? Therefore it's necessary for the criminal defense attorney to touch the very heart of the sentencing judge so that he fully comprehends all of the dire consequences a sentence of prison will mean in balancing for a fair decision. So often in criminal law we see the results of a harsh sentencing is far worse than the very crime being answered.

Monday, February 13, 2017


The dead of night. My phone rings. No less than a beleaguered Michael Flynn seeking advice again. For his sake I don't answer. These calls I've learned may be recorded who knows by whom or why.

Speaking to the Ambassador
Before we explore whether or not our new National Security Adviser has broken federal laws we can certainly agree that like the boss he serves, he is not competent. Only in Washington for a few weeks and he's already under threat of criminal prosecution under the Hood Act for undermining the foreign policy of the former administration in recorded calls to a foreign power's ambassador. It will depend on the recordings themselves as to whether his actions rise to the level of a crime. 

But the FBI investigates in mysterious ways. If they can't pin a criminal case based on the facts the most effective way to force a guilty plea to a federal crime under federal law is merely to establish that the defendant lied to the FBI. In fact the real threat from federal prosecution comes if he told the investigating FBI agents the same lies he told to the Vice President. If so, recent history of FBI investigations should give the National Security Adviser cause to make ever more late night calls to federal criminal defense lawyers in need of sleep.

The FBI's treatment of former House Speaker Hastert in a hush money case was unjust because they used his lies to the FBI about why he went over the $10,000 banking withdrawal limits to force a leveraged federal criminal plea to effectively punish his admittedly disgusting but unprosecutable sexual abuse of children which at the time allegedly committed was not even a federal crime. Martha Stewart was also undone not so much for the underlying allegations of stock manipulations the FBI suspected but couldn't prove but for being caught in not being honest to the FBI.

Here's what I wrote about the Hastert case at the time:

He stated that he didn't trust the banking system when in truth he was paying hush money. So what does the FBI do? Rather than investigate the possible blackmail Hastert was subjected to, it pulled out the infamous Martha Stewart option of charging federal felonies for not being honest with FBI agents. When one ponders the Stalinist aspect of these statutes how can one help but think they are un-American.
My problem here is with the federal criminal law. It simply should not be a crime to lie to FBI agents. It gives them too much power. If anything our criminal justice system actually provides incentives for law enforcement officers to commit perjury and those officers who do lie in official reports or under oath should be disciplined and prosecuted but often aren't. And it clearly gives them the ability to leverage that power in such a way as to force guilty pleas in cases where there is insufficient evidence to win a conviction on the actual criminal act under investigation.