FEDERAL JUDGE LOOKS AT BIAS AND HIS GOAL OF FAIR SENTENCING AFTER DEFENDANT ALMOST SHOOTS HIM

Recently we looked at the musings of a retired federal judge who confessed that she over-sentenced defendants to hundreds of years in prison. Now let's look at how a Federal District Judge in Florida confronts his task of fair sentencing in a Duke Law School PDF, Who appointed me God?. 

Missing Winston Churchill

His goal of fair sentencing was made more difficult at least in regard to possible bias after a defendant he'd recently sentenced shot at him while the judge was sitting at home in his favorite chair with his wife a few feet away. Though the bullet missed, the judge could not quite stomach Winston Churchill's belief that "Nothing in life is so exhilarating as to be shot at without result."

While looking at his own possible bias he notes that his staff believes he seems to give female defendants more lenient sentences. He justifies this by noting that unlike most male defendants the women often represent the sole support for children and other dependants. 

In looking for a just punishment he examines the inherent conflicts that arise with giving cooperators substantial assistance and the fact that prosecutors too often control the process since the judge can not give credit for cooperation unless the federal prosecutor files a motion for substantial assistance. Further, the judge notes that he tries to avoid randomness in sentencing so cases are consistently sentenced over a wide range of factual situations. This of course is possible only in cases that do not happen to trigger the 145 federal crimes that have federal minimum mandatory sentences.

And there lies the difference between an honest retired judge bemoaning her forced needless over-sentencing of hundreds of years and a sitting judge who blindly believes federal cases where he has actual sentencing discretion make up for all the ones where he has none. When he can truly make a difference for good in the lives of defendants, defendant's families and for victims, he does, and that's commendable. Yet it's troubling that he doesn't spend any time acknowledging the truth that for 145 federal crimes that trigger harsh minimum mandatory sentences he's just another voiceless cog within our corrupting criminal justice system justified and given authority by the false pretense that our federal judges have sentencing discretion.

FEDERAL JUDGE CONFESSES TO OVER-SENTENCING DEFENDANTS TO HUNDREDS OF YEARS OF PRISON

In a searing article a federal judge confesses to sentencing defendants to hundreds of years more than she wanted to because she had no choice due to the power of federal prosecutors in sentencing and the necessity of giving minimum mandatory sentencing for the 145 federal crimes that require it. She also notes that the United States with less than five percent of the world's population incarcerates twentyfive percent of the prisoners in the world. She could also have mentioned some of the obvious unfairness in our sentencing including the fact that although rates of drug use for whites and blacks in America are the same blacks are ten times as likely to go to prison as whites.

Finding the
Key to Fair Sentencing

After noting that sentencing factors should focus on the four elastic and at times conflicting sentencing goals of retribution, confinement, deterrence and rehabilitation. 
Yet she often had only one sentencing tool at her disposal, the authority to confine and punish federal defendants with long minimum mandatory prison terms.

... I was often prohibited from assessing a defendant’s history, personal characteristics or role in the offense. In sentencing, where judgment should matter most, I could not exercise my judgment. I felt more like a computer than a judge. And I was not alone. 

Over the years, many of my colleagues on the federal bench felt the same frustrations. 

This problem upset me as soon as I was appointed in 1994. Mandatory minimums were almost always excessive, and they made me feel unethical, even dirty. After seven years, my patience had run thin and my conscience was troubled; I began to consider resigning. I sought the advice of a revered mentor, a federal judge with more than 30 years of experience. He pointed out that quitting would serve nobody, as another judge would be required to impose identical sentences anyway. He also said that if I left, the bench would lose a judge who could advocate for criminal justice reform through her decisions. 

So I remained. But to this day, I am pained by many of the sentences I was required by law to impose. While I bore the title “Honorable Judge,” I felt less than honorable and more like a complicit tool of an unjust system.

Here is a federal judge who clearly cares about the people she is sentencing as judges often did in the era before unfair minimum mandatory sentences. Today it's much easier to simply give harsh sentences than to give fair sentences. Every judge knows that it's much less likely that a federal appeals court especially in the eleventh circuit will overturn an overly harsh sentence than a fair one. 

It's interesting and sad that this judge saw herself as little more than a computer or an adding machine for calculating the hundreds of years in prison others must serve. And somehow especially disheartening that her conscience only awoke to make her public attack on harsh federal sentencing after she'd safely retired. 

For judges still working, I ask you, where are you? Where are your voices. Why aren't you speaking out against the injustices that take place in your courtrooms every day? 

EXPOSURE TO VIOLENCE AS A CHILD FOR MITIGATION IN SENTENCING IN FLORIDA FEDERAL & STATE COURTS

It's believed that children exposed to high levels of violence are much more likely later in life to commit crime. Therefore it stands to reason that proof of exposure to violence as a child should be grounds for mitigation of criminal sentences. This is clearly true for a proper defense for any juvenile defendants who have been subjected to violence, sexual battery, sexual harassment, electronic harassment, bullying or any other act of inappropriate violence. But Defense lawyers should also use this information to the advantage of their adult clients to secure the best possible outcome in all Florida criminal courts (federal and state). So in evaluating your case it's important for your criminal defense lawyer to not only gather information on the charges you may be facing, but to have a clear understanding of every facet of your life and upbringing.

In Florida criminal courts and in the federal court in the Middle District of Florida reference can be made to the National Institute of Justice compendium of research on children exposed to violence, which as its name implies is a study of the most reliable recent research on effects and attributes of childhood violence. Not only does this study define in a broad way what may constitute violence in many situations, but it also discusses factors of risks and resilience, social bonds of violence, contexts of violence, teen dating violence, clusters of violence, school violence, familial violence and many physical and mental consequences of exposure to violence. So much so that even just writing about all this violence gives me a foreboding feeling of what may be lurking in the hallway as the lights flicker. 

Having this information at hand is important for any client who is a juvenile, but may also be significant for many adult clients who have been victimized or subjected to some type of violence as a child. Clearly the goal is to humanize your client. Good judges and fair prosecutors should be led into the story of your client so that they'll gain an actual interest not only in the facts of a particular case, but also in why the facts happened and how to make certain that any possible triggers for criminal behavior is resolved so that it never happens again. So no matter how old your client is now the compendium may be helpful in finding solid scientific support in persuading prosecutors to reduce felony charges to misdemeanors or as possible mitigation at the time of sentencing instead of merely relying on Florida sentencing guidelines and scoresheets.

HOW NEW FEDERAL SENTENCING GUIDELINES EFFECT CRIMINAL CASES IN THE MIDDLE DISTRICT OF FLORIDA

For all federal defendants and their criminal law attorneys it's important to note that the new 2016 guidelines are now in effect.   For all cases sentenced or after November 1, 2016, the Judge at sentencing should rely on the Probation Office Presentencing Report to apply the new guidelines.  

If the guidelines in your federal criminal case in the Middle District of Florida were more favorable at the time the crime was committed as defined in the indictment or arguably as delineated by the plea agreement or as found by the jury during the facts found at trial, then you may elect to be sentenced under the older, more favorable guidelines.  See USSG s. 1B1.11(b)(1).  But it's important to keep in mind that the Probation office will not likely bring this fact to your attention nor will the Probation Officer assigned to complete the Pre-sentencing Report in your case include the older guidelines in the unbiased report when it sends it to the sentencing judge. If the older guidelines are more favorable for your client then you must include a request to the court in your response to the PSR or (preferably) in your Sentencing Memorandum furnishing the judge with a timely request to apply the guidelines in effect at the time the offense occurred.

The Federal Guideline Sentencing Commission issued this notice of the new amendments to the Federal Sentencing Guidelines. 

Immigration Offenses
The Commission amended the alien smuggling guideline(§2L1.1):(1)to increase the enhancement for cases involving the smuggling of unaccompanied minors from 2 levels to 4 levels,broaden its scope to offense-based rather than defendant-based, and revise the meaning of an"unaccompanied minor";(2)to expand the definition of"minor"to include an individual under the age of 18;and(3)to clarify that the"serious bodily injury "enhancement applies to any alien smuggling case involving sexual abuse. 

The Commission revised the illegal reentry guideline(§2L1.2):(1)to provide tiered enhancements based on prior convictions for illegal reentry offenses and criminal conduct that occurred before and after a defendant was ordered deported;(2)to eliminate the use of the"categorical approach"for predicate felony convictions and make several adjustments to the scope of the enhancement; and (3)to exclude "stale"convictions by requiring that prior convictions be used only if they receive criminal history points. 

Child Pornography
The Commission revised §§2G2.1 and 2G2.2 to ensure the "sadistic or masochistic" enhancement applies when the offense involves infants or toddlers.

The Commission amended §§2G2.1,2G2.2,and 2G3.1 to provide that the 2-level enhancement for"generic" distribution applies if"the defendant knowingly engaged in distribution."
In §§2G2.2and 2G3.1,the Commission revised the 5-level enhancement for distribution not for pecuniary gain to clarify that the enhancement applies"if the defendant distributed in exchange for any valuable consideration."  

Conditions of Probation and Supervised Release

The Commission revised,clarified,and rearranged the conditions contained in §§5B1.3 and 5D1.3 in order to make them easier for defendants to understand and probation officers to enforce. 

As you can see the committee made a number of obvious changes to the Federal Guidelines. Yearly guideline changes rarely change how federal minimum mandatory sentences will play out at sentencing and did nothing to help this year. Yet it's vitally important to find the best Federal Sentencing Guidelines for your client's situation when the Guidelines can help. But it's also important to steer clear of arguments to the court about which guidelines should apply that may prove ineffective.

For example, it's possible for the practitioner to be tripped up by the "one book" rule.  See USSG 1B1.11(b)(2), see also Application Note 1. to the guideline.  This rule provides that the court cannot apply one guideline section from one edition of the guideline manual and another guideline section from a different edition of the guideline manual. In other words you can't pick and choose from different Federal Guideline years, but you want to make the most favorable decision as to which sentencing guidelines are most likely to give your client the best possible federal sentencing outcome even in tough sentencing cases such as drugs.

FEDERAL PROSECUTORS IN FLORIDA PURSUE CRIMINAL MARIJUANA CASES DESPITE MEDICAL MARIJUANA VOTE

Wouldn't you know it - the fact that Floridians overwhelmingly voted for medical marijuana has not stopped the feds from vigorous pursuit of marijuana cases in the Middle District of Florida. A couple of years ago more than 58% of voters supported a failed constitutional amendment for medical marijuana in Florida, just under the 60% threshold for passage. Recent polling indicates that medical marijuana is likely to surpass 60% to become the law in Florida at the next election. Further, many local Florida jurisdictions such as Tampa and St. Petersburg are following Miami's example by decriminalizing small quantities of marijuana.

Yet these events seem to mean nothing to federal prosecutors. Instead of tamping down the number of federal marijuana indictments there's been an increase in cases over the past few years. Once these cases are in the federal system federal judges have very limited discretion in avoiding long minimum mandatory sentences from the antiquated federal sentencing guidelines. And it's difficult to avoid harsh penalties under Florida law even when the state of Florida prosecutes marijuana cases. More troubling is the fact that the federal government for the most part no longer pursues marijuana in other states that have either decriminalized marijuana possession or allowed for medical marijuana. 

How can it be fair that marijuana indictments have increased in the southern United States while in many other parts of the country marijuana prosecutions are a thing of the past? Clearly the federal law should no longer be applied anywhere if it's not being applied everywhere. The foundation of the criminal law is that it be fairly applied in an equal manner. 

One wonders if the real cause of increased marijuana enforcement is a lack of other available productive work for the DEA. As arrests and indictments for hard drugs such as cocaine and methamphetamine have shriveled could it be that DEA agents as well as prosecutors simply do not have enough to do? It's frightening to contemplate the very real possibility that drug investigations, arrests and indictments are not based on targeting actual threats to the public. Once medical marijuana is legalized what will nosey officers smelling marijuana without a search warrant do then? Will cough medicine be next on their list?

WHY VOLKSWAGEN LEADERS SHOULD BE SENTENCED TO FEDERAL PRISON IF CRIMES ARE PROVEN

America's beleaguered criminal justice system claims to deter future crime by giving proportionally greater prison time for crimes that harm people or cause significant economic loss. In fact the Federal Sentencing Guidelines base most punishment on this criteria. 

Volkswagen's Cost-Benefit analysis for Gold
should result in prison time for executives.

Yet the truth is that significant economic crimes or crimes that bring physical harm to vast numbers of people rarely result in prison. This is true because the criminals who commit these crimes often benefit from being shielded as mere workers of corporations. But it's important to remember that when a corporation commits a crime one or more members of that company made the decision to commit fraud after weighing a cost-benefit analysis.

Let's look at the cost-benefit analysis of Volkswagen as an example.  The company admits that it long-term committed fraud in Europe and in America by rigging the anti-polution software on eleven million diesel vehicles causing approximately one million tons of additional toxic air pollution. Further, the addition pollution is estimated to have caused the deaths of 40 people per year for 8 years for a total of 320 deaths in the United States alone. Beyond these numbers of dead countless men, women and children suffered physical harm because of Volkswagen's greed including most anyone who walked outside in any urban area.

Volkswagen has agreed to pay substantial penalties. But is that enough to deter future companies from doing similar crimes?Should the leaders of Volkswagen be allowed to escape prison time just because they're part of a corporation? The Justice Department should make a criminal investigation of the leaders of Volkswagen a top priority. Let's see how well Volkswagen can avoid the victim loss calculations of economic crimes or reduce the valuation of goods under the Federal Sentencing Guidelines.

If the Justice Department finds that the leaders of Volkswagen committed fraud they should be indicted, shamed, extradited to America, tried and sent to long terms of prison if found guilty. 

FEDERAL PRISONS WRONGLY HOLD THOUSANDS OF INMATES BEYOND THEIR SENTENCE RELEASE DATES

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. 

AMERICAN INJUSTICE - THE FORMER HOUSE SPEAKER'S GUILTY PLEA IN HUSH MONEY CASE SHOWS FBI FAILURE

It may not be a problem a typical American daily faces, yet providing hush money, lying to the FBI about it and then being subjected to criminal prosecution for encroaching on the $10,000 bank limits is a signal that in the United States our Federal prosecutors and FBI agents have far too much leverage to force guilty pleas in questionable cases. I'm referring of course to former house speaker Dennis Hastert's plea of guilty in federal court this morning. My hope was that somehow this train wreck would be avoided and that better minds in search of authentic American justice, perhaps even a federal judge, would prevail in stopping his change of plea to guilty.

An American flag smothers Speaker Hastert 

This case stinks. Let's count the ways. First, federal prosecutors and/or federal agents broke federal law by leaking information about the case to taint the defense and benefit the federal prosecution. When Hastert was arrested, law enforcement let it be known that $3.5 million in hush money had been paid by Hastert to keep a long ago possible victim of child abuse from publicly identifying him as a former sexual batterer or predator of children. Why the leak by the feds? Because someone desperate enough to pay that kind of hush money, would do anything to avoid a public trial that airs out everything.

Second, Hastert foolishly talked to the FBI agents without a federal criminal defense attorney being present. The indictment details the essence of the actual provable crime established by the government - that Hastert lied to FBI agents about why he was taking out large sums of cash in $50,000 increments. He stated that he didn't trust the banking system when in truth he was paying hush money. So what does the FBI do? Rather than investigate the possible blackmail Hastert was subjected to, it pulled out the infamous Martha Stewart option of charging federal felonies for not being honest with FBI agents. When one ponders the Stalinist aspect of these statutes how can one help but think they are un-American. No wonder as a condition of his change of plea to the more substantial charges this one was dropped as a condition of the change of plea and the federal plea agreement. But make no mistake this was the dagger that with the leaked publicity of the hush money forced Hastert to change his plea to guilty.

Third, the federal prosecutors and the FBI have placed themselves in the unfortunate position of appearing to condone blackmail. Whatever Hastert did or didn't do the FBI investigation revealed that he broke the banking law in order to provide a substantial amount of money to keep a dark secret hidden. 

As for the alleged blackmailer, did he report this windfall of cash as income and pay proper taxes on it? Did he place the cash in banks under the $10,000 limit in an attempt to skirt the banking law, thus breaking it? Was the alleged blackmailer as direct and honest with the FBI agents as Hastert was when they came to say hello? Was the agreement of payments between the alleged blackmailer and the congressman simply a cover for another crime? 

Finally, Hastert is 73 years of age and does not appear to be in good health. A reasonable prosecution and investigation would take his age, health and the underlying facts of his situation into account in making a finding that it would be in no ones best interest to prosecute Hastert least of all whoever it was who was  blackmailing him. Congressman or Blackmailer balance the words on your tongue till they both come spitting out. 

And now what will happen to Hastert? Isn't it punishment enough that this man must admit he was once a Congressman and was even elected their speaker? Under the Federal Sentencing Guidelines that the Federal sentencing judge must use in determine a fair sentence for Hastert he could receive up to five years for the crime, but more likely under the prevailing federal sentencing scoresheet a sentence of between zero to six months is likely.

WHY FEDERAL ECONOMIC CRIMES UNDER SECTION 2B1.1 SHOULD NOT BE DRIVEN BY VICTIM LOSS CALCULATIONS

Despite entrenched opposition from the Department of Justice and other prosecutorial organizations the United States Sentencing Commission's new changes for federal economic crimes (also known as white collar crimes) will take effect on November 1, 2015. Because federal sentencing for these crimes is driven almost entirely by dollar amounts of victim loss, many years of inflation made it far easier for federal prosecutors to demand hefty sentences in these cases with many federal judges lacking the courage to go under the sentencing guideline ranges.

Inflation Adjusted Victim Loss but no Common Sense

The new inflation adjusted victim loss amounts will reduce guideline ranges for most federal defendants facing these economic crimes that include scheme to defraud, fraud, embezzlement, theft and tax evasion. Yet the underlying problem in federal sentencing for these Section 2B1.1 economic crime cases has not changed in that the dollar amount of loss still drives the federal guideline range sentencing structure to the belittlement of other factors that should be relevant in sentencing. This is absurd. Although the dollar amount is important and a wise judge should certainly give it some consideration, in many cases the dollar amount alone dictates a long prison term. 

In fact many first time nonviolent offenders are sent to federal prison for hefty terms for these economic crimes, thus denying the defendants the ability to ever make restitution to their victims. Since federal sentencing is rigged so that the amount of loss is the over-riding factor in these cases, you'd think some consideration might be given to those who actually suffered the monetary loss. What do the victims actually want? Isn't it likely that most victims would prefer defendants to make restitution than languish in prison? In a just society it should be a very rare thing to punish any first time nonviolent economic crime offender with prison.

Clearly Federal Judges (rather courageous or not) should be given an array of sentencing options in these federal criminal cases based on the entire criminal conduct including factors such as the number of victims, the average loss per victim, the likelihood of restitution and the period of time over which the crime occurred. These factors combined with any prior history of criminal conduct and personal characteristics of the defendant should then be weighed by the judge in forming the sentence without the judge forced to give undue consideration to the total loss amount as delineated in the Section 2B1.1 federal sentencing guideline amendment. 
Ultimately fair sentencing should be about more than merely adding up a list of losses to place nonviolent economic criminals in federal prison, it's about doing what's right for the victim, for the defendant and for society.

BEST EARLY RELEASE STRATEGY IN FEDERAL CRIMINAL SENTENCING IN THE MIDDLE DISTRICT OF FLORIDA

After the initial sentencing in federal court it is still possible to secure a second sentencing to obtain a better sentence under Rule 35. This is true even if your client has already received a lower sentence under the 5K provision for co-operation. Typically in the Middle District of Florida the Government will not file for a Rule 35 sentencing departure unless there has been extraordinary work from the defendant on the Government's behalf. 

A typical example of extraordinary co-operation after conviction and sentencing for a federal crime would be the giving of testimony to a grand jury or federal trial jury against a fellow co-conspirator in a complex criminal case that results in an indictment or a conviction of a federal crime. In one significant federal criminal case in the Middle District of Florida that I handled a defendant was well rewarded by prosecutors after he lured a co-conspirator from a country without an extradition treaty with the United States to a country with an extradition treaty. 

Federal Prison Drug Program for early release?

Another significant way to reduce the release date after sentencing is for the defendant to successfully complete the federal drug program while in federal custody. Typically there is a long waiting list for acceptance into the program. The federal inmate drug program itself includes classes that must be taken over the course of about eighteen months or so while in custody. The benefit is an entire year early of the sentenced release date. 

Unfortunately, because of the time it takes to complete the course and the waiting list, the beneficiaries of this federal prison program tend to be those defendants convicted of drug trafficking cases. Also, the program is open only to those federal prisoners who have established a drug problem with addictive behavior at sentencing or thru the Pre-sentencing Report. All too often defendants will mischaracterize and minimize their addiction problems to the probation officer assigned to conduct and complete the Pre-sentencing Report (PSR) with the result that the Bureau of Prisons (BOP) as directed by federal law will not grant access to the drug treatment program.

If the PSR does not reference any addictive behavior that can be proven, then the initial sentencing should include evidence to the federal district judge of addiction thru the testimony of the defendant, family, friends, psychiatrist or therapist for the judge to make an informed finding on the record that the addiction exists and recommend the drug program. It's also important to formally request that the judge amend the PSR to include the reference to the formal finding of addiction. Otherwise the BOP may not have ready access to the judge's decision that overruled the probation officer's assessment in the PSR.

These examples show that it's necessary to have an effective strategy before the initial sentencing which successfully will lay the groundwork for either a more beneficial second sentencing or early release thru Bureau of Prisons programs. Because the vast majority of federal defendants are forced to plead guilty, effective defense lawyers should plan early release strategies within and outside the federal sentencing guidelines well before sentencing in federal criminal in the Middle District of Florida in Tampa. 

HOW TO REDUCE VALUATION OF GOODS IN FEDERAL CRIMINAL CASES FOR BETTER SENTENCING RESULTS

In many federal and Florida criminal cases the dollar amount of a scheme to defraud or theft becomes an important issue at sentencing. In the Middle District of Florida at the Tampa Federal Court many federal crimes are parsed by way of damage done. The federal sentencing guidelines determine economic damage based on dollar calculations. Sometimes these calculations call into question the sanity of the guidelines.

An Innocent Florida Lobster of Great Value

A fellow lawyer sent me a question about how the federal government values lobsters that illustrates the absurdity of federal criminal law.

I have a question about the valuation of goods for purposes of calculating the sentencing guidelines. 

Defendant illegally harvested Florida spiny lobsters in the Florida Keys. Sold them to local seafood stores for $5.50 per pound. He was surveilled and videotaped while committing the illegal harvesting. He was arrested pursuant to the Lacey Act and pled guilty to a federal misdemeanor.

If lobsters are valued at $5.50 per pound the guidelines allow probation, but the PSR values the lobsters at around $24 a pound because there is a big market for them in Asia if they are shipped live to say, Hong Kong, for example.
The federal government is keeping the fishing boat (that’s punishment enough one would think).  At the higher value the guidelines call for incarcerationThe probation officer who wrote the Pre-sentencing Report refuses to disclose what source or information was used to value the lobsters at $24 per pound.Any suggestions?
Thanks

As you can see value in federal terms is all about dollars even when talking about the illegal harvesting of Florida lobsters. The absurd result of the probation officer's findings for lobster value are similar to what happens in federal criminal cases all of the time. FBI and DEA agents are notoriously off the mark when confronted on cross-examination with valuation issues in a wide variety of criminal cases involving the street value of drugs, the value of stolen property or actual monetary fraud loss.  

Perhaps the probation officer in the lobster case should also take into account currency fluctuations, the strength of the yen to the dollar and the financial disarray in the Eurozone. So how should value be determined? Doesn't the nearest local value make the most sense? Doesn't it matter what the Defendant thought the lobsters were worth when he sold them? We know what he thought they were worth, exactly what he was paid, $5 per pound. 

But for some probation officers and federal prosecutors that ready knowledge is not enough. Instead the value calculation includes added airfare and effort with the not inexpensive means to keep the lobsters alive all the way to Asia, which happens to be the most expensive market in the world. Clearly, an objection and Sentencing Memorandum should be filed detailing for the federal judge the ridiculous analysis of the Pre-sentencing report (PSR) and the need to not give preference to the prosecution in sentencing.

FINDING FEDERAL SENTENCE REDUCTIONS BASED ON THE NEW DOJ STUDY OF PRISONS FILLED WITH OLD MEN

Yesterday, I finally received a late Pre-sentencing Report in a federal drug case from the probation office in Tampa. By law the Report must include, for the prosecutor's delight and the federal judge's perusal, the the cost of incarceration versus the cost of probation. As of yesterday the cost per year of federal incarceration is $29,291.62, whereas the cost of supervision by a probation officer is $3,162.03. 

Why send Sir John Falstaff to Prison?

My client is accused of the significant but nonviolent federal crime of trafficking in cocaine. The punishment includes a minimum mandatory 10 year sentence. So the cost to imprison my client for the next 10 years will be at least $292,916.20 and this unreasonably assumes that the cost will not be greater a few years from now as my client ages. Many federal defendants face much longer sentences such as twenty-five year minimum mandatory sentences or life sentences. 

Think about those numbers. Think about the fact that the United States incarcerates a greater portion of it's population than any country on earth. How did this happen and what does it mean for our country? As these inmates age the financial impact becomes much greater forcing the federal Bureau of Prisons to become something closer to a nursing home of elderly prisoners.

A new DOJ study on aging inmates from it's own inspector general's office reinforces what we already knew - our American war on drugs is an abject failure not only for America but for the bureau of prisons. It turns out that thirty years of Federal minimum mandatory drug sentences have resulted in a prison population that is mostly populated by men over fifty years of age. Here is an excerpt from the report.

…the Federal Bureau of Prisons (BOP) incarcerated 164,566 federal inmates in 119 BOP-managed institutions.1 According to BOP data, inmates age 50 and older were the fastest growing segment of its inmate population, increasing 25 percent from 24,857 in fiscal year

The OIG found that aging inmates are more costly to incarcerate than their younger counterparts due to increased medical needs. We further found that limited institution staff and inadequate staff training affect the BOP’s ability to address the needs of aging inmates. The physical infrastructure of BOP institutions also limits the availability of appropriate housing for aging inmates. Further, the BOP does not provide programming opportunities designed specifically to meet the needs of aging inmates. We also determined that aging inmates engage in fewer misconduct incidents while incarcerated and have a lower rate of re-arrest once released; however, BOP policies limit the number of aging inmates who can be considered for early release and, as a result, few are actually released early.

Those nonviolent drug users now need more medical care and other services that the BOP (Bureau of Prisons) can not possibly provide to an adequate level even if it spends more money.

For federal defense lawyers this study provides excellent arguments for requests to district judges at sentencing for sentence reductions and variances under the federal sentencing guidelines for older federal defendants. Clearly, the Justice Department now admits that Bureau of Prisons is incapable of handling the vast number of aged defendants yearly sent to federal prison. 

Isn't it finally time for the DOJ, federal judges and Congress to do something about these inhumane sentences?

STOP HARSH FEDERAL DRUG SENTENCING FOR HALLUCINOGENS THAT BENEFIT CANCER PATIENTS

Cary Grant: On Mushrooms & LSD  

Should outlawed drugs be legalized for medical use? New studies indicate that marijuana is not the only federally outlawed drug that has legitimate medical uses. 

Psilocybin is a natural hallucinogenic found in magic mushrooms, that was once used by native Americans in ancient mystical healing and hunting rituals. A stunning New Yorker article analyzes current medical studies at teaching hospitals such as John Hopkins that have found that psilocybin - one of the harshest penalized schedule one drugs under federal law - is very beneficial for many cancer patients facing death.

The drug temporarily reduces time and space while widening empathy thus allowing the user to forget his or her existence while expanding the definition of self as part of the universe absolved from the indignity of death. When administered by therapists patients unburden their minds of the dread of death and separation from those they love. Those given the drugs often find that it was one of the most comprehensive, important and memorable episodes of their lives on a par with the birth of a child. 

Patients make their way thru a classic 'psychedelic drug trip' not unlike those described by groups such as the Beatles in the turbulent sixties before psilocybin and other drugs such as LSD were designated as unlawful. During the sixties it wasn't only Lennon and McCartney who found that the drugs opened up their feelings, to love and to life, but so too many Hollywood elites such as the graying middle aged Cary Grant. He noted that taking LSD helped him understand that he was merely a child of the universe, albeit a debonair one, forever lifting the fear of death from his shoulders, even as Alfred Hitchcock's crop dusting plane flew closer.

So why were these drugs designated by Richard Nixon as unlawful federal schedule one drugs - the most dangerous category - on a par with trafficking in heroin under harsh federal sentencing guidelines? Peace, love, and conscience raising combined with licentiousness was feared as socially explosive. 

The tragic solution was to outlaw the drugs to dampen the cultural rebellion of the sixties. The world of Woodstock would become a crime. Those who delved into these chemicals would become criminals filling our prisons with the most nonviolent, antiwar members of society. It's time for the federal government to right these wrongs and legalize every drug that helps people.

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.