Monday, February 02, 2015


Since time immemorial under common law sentencing decisions have not been made by juries, nor by defense attorneys, nor thankfully, by prosecutors. Yet many judges either from laziness or abject cowardice defer to prosecutors at the time of sentencing. 

My fair lady poster.jpg for a fair federal or state judge in Tampa Bay, Florida
Fair Judge of more than Accent
In the Tampa Bay criminal courts in the Clearwater courthouse most prosecutors are assigned to specific divisions. Each criminal division has its own presiding judge. The judges see the prosecutors almost every day, see them when a search warrant needs to be signed at night, see them occasionally on weekends at advisories for the newly arrested's bond hearings, see them at parties for court personnel such as the bailiffs or the judge's judicial assistant or the judge herself. In short the judges trust and know the prosecutors much better than they do private defense lawyers. Clearly, prosecutors should be assigned cases randomly in different divisions so that they do not have an unfair advantage during sentencing hearings.

But besides trust and knowledge the prosecutors also have leverage over judges. They have the ready means to appeal unlawful sentences that many defendants can not readily afford. And the implicit threat of possible appeal forces some judges to abandon fairness in favor of the easier path of accommodating the prosecutor. This could be stopped by having the prosecutors office share the costs of any appeal made by any party or by defraying the expenses of appeal with additional damages for time, expense and aggravation when defendants successfully win a criminal appeal.

In federal court in the Middle District of Florida in Tampa the judges would at first glance appear to be bound to give due consideration in sentencing to the federal sentencing guidelines as well as to the Pre-sentencing Investigative Reports (PSR) created by federal probation officers at the behest of federal magistrates for the district judges who actually preside over each sentencing. The goal for a PSR is to present for the federal judge an unbiased view of the defendants life, criminal history and criminal conduct while also establishing an accurate assessment of how the federal sentencing guidelines should be calculated. 

Yet the federal probation officers tasked by the court to write each PSR are anything but unbiased. They use the case reports from case agents from the FBI and DEA with conversations with federal prosecutors to determine how the sentencing guideline range for each federal defendant should be implemented. They often have little or no contact with defense counsel until after the PSR is filed. The defense attorney may object to the report in writing, but often the damage has been done. And usually the PSR will not be amended unless the federal prosecutor agrees. 

Clearly, the federal sentencing guidelines should bar any contact, collusion or conversations between prosecutors or case agents and probation officers assigned to complete the PSR. Instead both the prosecutor and the lawyer for the federal defendant should give a written proposed PSR with the officer. If there were fair Pre-sentencing Reports, fairer sentencing based on compassion would result. 

Ultimately the criminal justice system in Tampa Bay, Florida needs unbiased judges who have the courage to sentence defendants in a fair manner. And we need defense lawyers who aren't intimidated by the process nor afraid to demand fair sentencing for criminal defendants.

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