Friday, April 05, 2013


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.

The DOJ must provide the means for Tampa Bay Federal Judges to give fair sentences.
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.

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