ONLY 1/4TH OF ALL FEDERAL DRUG TRAFFICKERS ARE REINCARCERATED AFTER SERVING THEIR PRISON TIME

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.

THE SENTENCING GUIDELINE RANGE SHOULD ONLY BE ONE FACTOR USED FOR FAIR SENTENCING IN FLORIDA

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.

HARD RIGHT SHIFT TO LAW & ORDER ALLOWS SPINELESS FLORIDA JUDGES TO GIVE HARSH SENTENCES

Even the toughest sentencing judges in Florida's vast array of federal and state courts seemed to mellow over the past few years as they accepted the fact that harsh sentencing especially for nonviolent offenses such as drugs, fraud or grand theft was abhorrent. As defense lawyers focused media attention to the devastated families and loved ones of defendants ruined by the criminal justice system it slowly became clear to society at large and even to law enforcement, prosecutors and judges that in daily use the harsh sentencing based on absurd sentencing guidelines and unfair minimum mandatory sentencing that often subverted justice and that they had gone too far in criminalizing nonviolent behavior with significant jail time. 

Judges could no longer effectively convince us that when they gave inhumane sentences that it was only because they lacked discretion under the sentencing guidelines. The most politically sensitive judges were the first to see that times had changed and were happy to receive more praise for more reasonable sentences. Soon others followed till a consensus developed for nuanced sentencing based on fairness, reasonableness and rehabilitation and giving a second chance thru the pretrial intervention program rather than retribution.

Those days of aspirations toward a Florida system of fair sentencing are about to end. The political climate for greater law and order will quickly turn the most spineless judges into mere adding machines pleasantly spitting math scores and spilling blood at sentencing. Eventually the zeal of long sentencing will sweep away any of the remaining reluctant judges until they're all giving minimum mandatory sentences that corrupt the very prosecutors and judges who pursue them with no apparent shame just as they were only a few years ago. Close your eyes as they waste another generation of lives thrown away for no purpose other than the fact that judges enjoy being judges. 

WHY OUR CRIMINAL JUSTICE SYSTEM TOLERATES UNFAIR RESULTS EVEN FOR THE INNOCENT

In American criminal law is it possible to have justice without fairness? The unambiguous answer from our United States Supreme Court could be viewed as almost un-American. After all how can there be justice unless it is laced with fairness?

Yet our Court has often ruled that for expediency, also known as judicial economy, proof of absolute innocence - even for a defendant facing serious consequences such as the death penalty - is not sufficient reason alone for the Court to address a case.

Even this cold Lady Justice
is presumed innocent till proven guilty.

Thinking about the lawful definition of justice in America today leaves little room for questions of fairness. Instead the Court looks to finality. The need to always be moving forward with an ever lengthening line of criminal cases persuades the Court that each case must be resolved within its given framework of available time. When the clock runs out, the sentence stands for all time, innocence be damned. The prevailing law for criminal justice in our country is justice as convenience rather than justice as fairness.

And that makes the occasional call for fairness from a defendant's family member years after some obvious abuse easy for the criminal justice system to simply brush aside. The likelihood of success in opening a long ago closed case becomes a game of finding some method to lever the case open. It has nothing to do with guilt nor innocence. 

An example of the quality of leverage required to reopen a change of plea would be finding proof thru the Court Reporter's transcript of proceedings during the change of plea that the judge failed to ascertain if the defendant was affected by medication during the process of the plea. Other examples that could result in a plea being overturned would be incompetent counsel or not knowing the English language. In Florida most judges read questions and await responses with further probing questions when in doubt about the integrity of a plea with the goal of making certain that someone who pleads fully understands what he is doing as well as the consequences of the plea. 

If there was a trial by jury and the appeals process has run its course, then the chances of finding some lever to reopen a case are even more remote. Clearly once a person is found guilty there can no longer be any presumption of innocence. Unfortunately arguments based on fairness such as one that the defendant is actually innocent will be of little use. Allegations of unfairness and even proof of innocence will not likely to change the result of a criminal case. All of this means that the best chance for success in any criminal case is at the beginning. 

JUDGE'S DEATH MARKS THE END OF AN ERA BEFORE UNFAIR FLORIDA MINIMUM MANDATORY SENTENCING

Judge Mark McGarry

One of Pinellas County's best judges recently died. Judge Mark McGarry served as a judge from 1968 until his retirement decades later. With him goes a charming era when good judges mentored, trained and helped the lawyers who practiced before them. He often bettered lawyers with wit, charm, care and compassion, always a sly jesting glimmer in his eyes.

After thirty years of practicing law I've found that putting on that black robe often changes folks for the worse. I wonder why. Is the power? No, if anything most of a judge's time is spent in boring ways. Pushing shopping carts full of court documents and files thru the criminal justice system with endless status checks, pretrials, hearings, trials and appeals.

The only way a person of genuine intelligence like Judge McGarry was able to sit still on that bench for hours at a time that became years and then decades was because he spent much of that time dissecting those before him, often drawing New Yorker styled cartoons lampooning the judicial system, witnesses, bailiffs, and hapless lawyers who somehow bungled their way into his courtroom. He was deliciously pleased by the casual inadvertant catastrophy that make trials interesting for spectators and nightmarish for lawyers. The police officer who submitted that wrong evidence, say mislabeled cocaine in the marijuana trial, could happily lay claim to immortality, at least for us - laughing -who later saw the cartoon.

And yes, he could be cruel now and then, especially as retirement drew closer. He didn't like the way one somewhat pretentious, politically well-connected prosecutor treated a witness during a jury trial. The prosecutor's last name was Todd.  Judge McGarry waited for the prosecutor to finish questioning the witness by simply saying, "Mr. Toad, do you have any other witnesses?" I don't recall hearing the judge ever use the correct name again.

Of course, it was a different world then. During most of his time while serving as a Circuit Court Judge in Pinellas County only white men could wear those black robes. Bringing more women and minorities onto the bench should also have brought fresh awareness of how the criminal law should be applied. 

Yet Judge McGarry was ahead of his time in understanding the dynamics of fair sentencing. He understood that harsh minimum mandatory drug sentencing merely takes away the judge's discretion to sentence fairly. He knew sentencing guidelines and sentencing scoresheets were simply wrong and he did everything he could to ensure fairness in the sentencing process.

No wonder Judge McGarry left the bench when he did, head held high, an courageous, honest judge. Not long after he left the bench judges, prosecutors and defense lawyers became little more than calculators - adding machines to compute the scoresheets for Florida sentencing guidelines - as nothing but numbers now mattered. There would be no time for laughter nor for cartoons, it was to be all about punishment.

HOW TO STOP JUDGES FROM GIVING PREFERENCE TO PROSECUTORS IN FLORIDA CRIMINAL SENTENCING

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. 

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.

HOW RADICAL JUDGES & PROSECUTORS USED HARSH SENTENCES TO IMPRISON MILLIONS OF AMERICANS

The principle now being accepted about American justice is that the needless imprisonment of millions of Americans over the past thirty years was a waste of time, resources and immeasurably lost lives. Yet the radical law makers, judges and prosecutors who did this will never be punished. Instead as it becomes common thought to now decry the abuses of harsh sentencing, they'll simply embrace the changes and receive praise for their wisdom.

It was a radical movement that resulted in America - land of the free - having the highest number of citizens imprisoned that any other country. The radicals persuaded otherwise reasonable people that many Americans were not fit to live among us even if those Americans were never accused of any violent crime. 

They were not fit to live among us because they used drugs, committed theft or damaged property. Federal and state governments declared war on drugs by sending millions of Americans needlessly to long minimum mandatory prison sentences where many otherwise good people still languish. Property rights were elevated above the rights of defendants.

And a failure of morality combined with a warped sense of justice led judges and prosecutors to somehow believe that what they were doing was best for all of us even those they incarcerated. The more punishment given to those unfortunate few would free the rest of us from having to worry about our possessions being devalued.

Still every criminal defense lawyer knows that the most effective arguments aren't made at sentencing at all; they're framed and reframed a thousand times until the culture develops an acceptance of basic principles. The basic principles of any society ebb and flows in tidal fashion, today in America finally bending toward less punishment for nonviolent offenders. Even as our trusted law makers, judges and prosecutors subverted the law to use it as a bludgeon destroying those who lived in ways they denounced as immoral. But what about the lost lives, the lost years, the lost loves of every person recklessly sent to prison?

Shouldn't those who instigated this needles  be treated to public shame? Shouldn't we not only free the victims of this injustice, but find some way to punish those who failed to observe basic American values?

True American values as embraced within an ideal American justice system must always rise toward granting fair trials, reasonable sentencing and impartial results. It's time to demand that our American gulag stop punishing nonviolent crimes with long terms of prison. 

THOUSANDS OF NONVIOLENT FEDERAL PRISONERS MAY GET EARLY RELEASE UNDER NEW CLEMENCY CRITERIA

In an effort to "restore a degree of justice, fairness and proportionality" in federal sentencing the Department of Justice is finally moving to directly reduce unfair sentences for nonviolent defendants by broadening clemency criteria.

The goal is to correct widespread sentence disparities which have escalated with the implementation of harsh Federal Sentencing Guidelines that gave federal judges little discretion in federal sentencing. In fact for a number of years it has been federal prosecutors rather than federal judges who made the most important sentencing decisions. And with the Justice Department decision to broaden clemency criteria it's ever more clear that punishment in America is dominated not by judges but by prosecutors. Criminal defense lawyers could do little but force cases to trial or search for the best sentencing alternatives by persuading prosecutors that the case was weak.

Some federal judges even noted in opinions apparently not co-written by prosecutors that they had become little more than adding machines totally calculations for the sentencing guidelines without any real human input. In many cases wary federal judges have been unwilling to give lower sentences especially in jurisdictions such as the Middle District of Florida, where there existed the threat of successful appeal of the sentence by prosecutors. Even good judges found themselves hemmed in between harsh sentencing guidelines, minimum mandatory sentences and overzealous prosecutors. 

Clearly this is an important step toward fairer sentencing by the justice department. And at least this gives every sitting president the ability to right the wrongs of sentences that are unfair by granting clemency to clear up past unfair sentencing for those in prison awaiting American justice. One example of unfair sentence due to sentencing disparity given in the attorney general's statement on clemency is crack cocaine. At one point those caught with crack cocaine were routinely sentenced to 100 times as much prison time as those prosecuted and punished for other forms of cocaine, which the Supreme Court reduced it to 18 to one. Yet even at 18 to one, many of those people convicted of this nonviolent drug possession charge still remain in prison. But what we really need is fair sentencing. 

And the only way to gain fair sentencing is to change the entire criminal justice system. We need judges who are brave, articulate and compassionate, who understand what serving time in jail really means and who are willing to do what is right no matter what the public consequences. We need new laws that give the power of sentencing to judges not prosecutors. We need overzealous prosecutors to understand that their first duty is to implement justice. And we need federal criminal defense lawyers who never give up, who never stop fighting for their clients to find the best possible sentencing outcomes.

FIVE EFFECTIVE WAYS TO PERSUADE SENTENCING JUDGES TO APPLY LENIENT PUNISHMENTS EVEN IF FAIRNESS SEEMS TO DEMAND A HARSH PENALTY

As Americans we often may lay claim to the notion that we want fairness in our criminal justice system. In truth what we want is consistent applications of our laws when applied to others but something less consistent when applied to us or the people we care about. Only when the ugly head of the law bites us do we fully understand that in the application of justice we really require some wiggle room. 

For Tampa Bay criminal defense lawyers justice should be fair except when a client faces a fair result which will also ruin his life, then what? Here are five effective arguments to leverage a judge's discretion to make sentencing findings running against the grain of harsh laws dictating excessive punishment while finding the best possible sentence.

First, look to the law's intended consequences to show that they are irrational when applied broadly. Even the best written laws should be narrowly construed so as not to ensnare those who may never have intended to do wrong at least in the broadest definition of the crime. 

Second, show that the law has unintended consequences that could result in unduly harsh sentencing results. Establish that the facts and circumstances of a case are unique outliers in the law's true intent.

Third, follow up the argument on the law's intended and unintended consequences by finding and presenting evidence of the legislative history of the law. In Florida the legislative history often includes information from committee hearings, debates, votes and amendments made during the legislative process. This evidence can establish that the law maker's intent was not to target the actions under consideration with significant punishment.

Fourth, establish that the harsh punishment for a broken law was not readily foreseeable by the average citizen. This is especially easy when the sentencing judge on the record expresses some surprise when told by the prosecutor where the Florida guideline scoresheet range of prison is for a defendant.

When Defendants were first being sentenced to the initial set of harsh minimum mandatory sentences for drugs some twenty years ago, the best judges were reluctant to sentence people to that much time. They looked for every possible avenue to avoid the law. As a prosecutor at the time I even observed a judge grant a new trial to force prosecutors and defense lawyers to come up with a non-minimum mandatory sentence. 

But as the sentences became more common habit displaced sympathy. With every additional minimum mandatory sentence issued, it became that much more difficult for judges to ignore the heft of the law for others in a misplaced notion that simple fairness dictated heartless sentences for everyone. No, simple fairness means that every judge best honors the law by finding the least possible punishment, despite sentencing guidelines, that provides deterrence and protects the public based on the facts of each case with the unique personal qualities of every defendant. 

And that leads to the the fifth argument which is to appeal to the sentencing judge's sense of wanting to do what is right, which is the most effective argument of all.