Monday, July 15, 2013


A recurring sentencing scenario that Clearwater criminal defense attorneys often experience is a frowning Judge who states on the record that regretfully the onerous sentencing guidelines call for a harsh sentence which must be imposed. At least the Sentencing Guidelines don't yet call for being sent to the old Village Stocks as punishment or Judges would do that as well. It's not enough that the United States Supreme Court has ruled that the Federal Sentencing Guidelines are merely advisory. 

Old Village Stocks are as dated as the sentencing guidelines in Florida criminal cases in Tampa Bay, Florida.
Sentencing Options have changed.
If it's a Federal Judge he'll remind the lawyers that despite what the Supreme Court has stated, the Federal Sentencing Guidelines as they pertain to lengthy minimum mandatory sentences can only be pierced by substantial assistance based on co-operation or by the rarely invoked safety valve provision which only applies in drug cases and only if the Defendant is in the first criminal history category. 

Yet even when no minimum mandatory sentence is triggered under the Federal Sentencing Guidelines the Judge feels bound by them and will work from the guidelines toward a fair sentence.

In the state criminal justice system of Florida, the Judge will maintain that the Supreme Court's opinion on the Federal criminal justice system has no bearing on the state of Florida and at this point the Judge is correct. So the Judge will look to Florida scoresheets calculations that create a sentencing guideline range to determine an appropreate sentence.

Here are some of the best ways to present better sentencing options for a Judge that trump the sentencing guidelines.

First, the facts of the case need to be exploited and explained in such a way that the Court will differentiate the case from others that seem similar but aren't. This must be based on a fact based presentation and comparison of the case at hand in comparison to the typical case for which the criminal statute was clearly written. For example, intentionally spitting on an officer is a Felony Battery, but should the law apply with equal heft in punishment where the officer in question is shown to have egged the Defendant  on?

Second, the Defendant must be made to seem much more sympathetic than a typical Defendant. At the heart of this is finding the lynchpin that explains to the Judge why this event happened and why it will never happen again. One purpose of sentencing may be punishment, but another purpose of sentencing is rehabilitation. How does it help society to punish a Defendant if at sentencing the defense can establish a high likelihood that the Defendant will never commit another crime?

At issue in every sentencing case should be the question: is this a fair sentence and if not, why not? Showing a wide disparity of sentences within a given law's sentencing history may establish the inherent unfairness of a sentence. This is what happened in the abolition of the 100 to 1 mandatory minimum ratio of crack cocaine punishment to powder cocaine punishment in Federal Courts. But thousands of Americans suffered years of wasted prison time before the Courts, and finally Congress, were brave enough to make the needed change based on disparity of sentence.

Finding leverage for a fair sentence thru special personal characteristics of the Defendant is specified under the Federal Guidelines as giving the sentencing Judge discretion to go under the guidelines to provide for a fair sentence. This federal framework can also be very successful in state court system. 

As an example would be a case involving a million dollar fraud scheme for which a client who also happens to have an on-going, non-curable disease accepts responsibility for his criminal conduct by pleading guilty. The Sentencing Guidelines call for jail based on the amount of the taking in the scheme to defraud. Yet establishing to the Judge that the client is taking non-FDA approved drugs for his illness, forces the Judge to go under the guidelines and give no prison time whatsoever, because non-FDA approved drugs are not allowed in the Federal Prison System.

If someone you care about is concerned about how the Sentencing Guidelines will affect a Judge's sentencing decisions you need to find a Clearwater criminal lawyer who will find the best options that are available by making sure the Judge creates a sentence which gives the least amount of punishment while still protecting the community.

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