Wednesday, May 25, 2016


A new report from the Justice Department's Inspector General finds that federal prisoners are routinely held for months, and for a few unfortunate inmates, even years passed the release dates of the sentences handed out by federal judges. In effect the incompetence of the Federal Bureau of Prisons (BOP) is arbitrarily lengthening prison sentences for those caught within the web of the criminal justice system. Every defense lawyer and every federal judge should be angered by the report. 

Federal Prisoners Singing
for Freedom
At federal sentencing hearings prosecutors and defense counsel often argue over minute details of how to apply the infamous sentencing grid of the federal sentencing guidelines in which the number of levels given to the defendant may add months or years of imprisonment. Despite numerous Supreme Court decisions stating that Federal Judges have sentencing discretion, the truth is that the sentencing guidelines dictate most federal sentencing decisions and that federal judges have limited discretion in sentencing

Prisons must inform federal judges in some circumstances of early releases of inmates, but there's no set procedure by BOP for informing judges of late releases that may require prisoner compensation and that randomly circumvent the federal judge's sentence. In fact neither the judge, the defense lawyer nor the prosecutor may ever find out. The report notes that the federal prison system does "not have a process to consider whether to notify the sentencing court of an untimely release." Yet the report also specifies that the prison system does have a process to timely notify the relevant federal probation office, despite making no effort to notify the federal sentencing judge, the prosecutor nor the defense counsel. This makes no sense. If all the parties were notified at least defense counsel would have an opportunity to file an emergency motion for a renewed sentencing hearing. 

Clearly BOP has been given too much arbitrary power. No wonder so many federal defendants refuse jury trials because they believe the game of justice is rigged for guilt. Everyone involved in the criminal justice system needs to rein BOP in by first requiring BOP to give notice of any unilateral enhanced sentencing to all of the parties involved and second to establish judicial review even if limited in scope of BOP release date procedures. Another important step would be for BOP to send its release date schedule to all concerned parties within ten days of an inmate's arrival into the prison system and to require any subsequent amendment of that date to be given to all parties within ten days of the change with an explanation of why the date was changed and how the new date is consistent with the federal judge's original sentencing order.

The report is another blow to the notion of fair sentencing in America. At federal sentencing defense counsel should ask the judge to include in the sentencing order time limits for BOP action on release dates with demands that the federal judge, defense counsel and prosecutor be notified should the release date be changed with an explanation as to why it was changed. 

Tuesday, May 10, 2016


Judge Susan Schaeffer with those who enabled her during her long career might have hoped time would erase her history of abusive behavior as a Circuit Judge, but I'm obliged in decency to take up the task of reassessing her judicial career. She was not as one local paper put it "the best of the best" rather she embodied the worst qualities any judge could have. She was, for those of us who actually practiced before her not a judge worthy of the praise and respect we held for Judge Mark McGarry

Long Sentences for an appointment to the
Supreme Court of Florida
Good judges are people who value justice laced with a keen sense of fairness. They're humbled by the aspects of their work that compels them to daily make god-like decisions on the fate of other people. That uncomfortableness of judgment naturally comes from an awareness that no amount of knowledge is ever complete. Those who don't possess an inkling of the limits of self awareness are unfit to wear the black robe of judgment. 

Judge Schaeffer, a graduate of Stetson Law School, often scorned all the fools she had to endure in hearings or trials, even belittling one particularly earnest Harvard Law graduate soon after the shell-shocked lawyer walked out of her courtroom. Her unlimited hatred and scorn was clearly roused by that Harvard degree, something she neither had the intelligence, wit, nor grit to acquire

Yet there was never a moment in her courtroom when she did not endeavor to prove she was the smartest person there. Judge Schaeffer was the star of every motion, the center of every hearing and the brilliant decision maker for every trial in her courtroom. The facts, the lawyers, the defendants were of little consequence - it was her story that counted. To get the best possible results sharp lawyers expressed every argument within the limited framework of her self perceived brilliance showering their presiding judge with the false praises that only made the malignancy of her megalomania grow. 

It is now universally understood that millions of lives were needlessly ruined during America's failed drug war. Countless nonviolent defendants had their freedom and dignity needlessly taken. During that time every Florida judge's moral center was tested. Judge Susan Schaeffer failed that test. She often made it clear in drug minimum mandatory cases that she wished she could give even more prison time. 

At the time even attorneys with the prosecutor's office were shocked at the level of her ugly ruthlessness. Yet this was a judge who believed in the political necessity of giving maximum sentences. Judge Schaeffer, a former agent of the Internal Revenue Service, abused her new power to sentence harshly as a battering ram to further her career in the hope of being appointed to the Florida Supreme Court. In her view thoughtful, deliberate and fair sentences were given only by judges who were fools.

One judge noted that at a judicial conference Judge Schaeffer clearly labored under the influence of alcohol and/or drugs as she bragged that the Governor would appoint her to the Supreme Court, "it's in the bag, damn it...yea... in the bag." The appointment instead went to someone who graduated from a better law school,  displayed better judicial temperament, had greater experience and who apparently managed to keep a sober disposition at judicial conferences, restaurants and golf courses.

Sadly she still possessed the Circuit bench and her failure to win the appointment only made her more hostile and unpredictable. As she bullied and blindsided lawyers they'd mutter - Why is she so angry? Is she mentally unstable? Is she under the influence of drugs and alcohol? 

Shrug your shoulders and wonder why as you walk into the darkness; all I can think about are the hundreds of people convicted of nonviolent crimes in her courtroom who still wait out their lives imprisoned in needless misery.