PUSH TO REDUCE FLORIDA'S MINIMUM MANDATORY SENTENCES FOR MANY NONVIOLENT DRUG CRIMES

Florida has 118 state crimes that trigger tough minimum mandatory sentences, which is close but not yet outdone by the 145 federal criminal laws that have harsh minimum mandatory sentences. Minimum mandatory sentences are an unfair punishment because they take away the sentencing judge's discretion to make the best sentencing decisions. This is especially true for the many Florida drug crimes that result in arrest such as possession of marijuana, cocaine, heroin, methamphetamine, oxycodone, prescription pain pills, prescription fraud, steroids, xanax, hydrocodone and codeine. 

More Discretion well fits your
Favorite Judge

Possession of only a small amount of any of these drugs can trigger a minimum mandatory term of many years imprisonment ruining the lives of not only the defendant, but his family, friends and loved ones. Drug charges are inherently nonviolent felonies that should not result in arrest or jail sentences. Even cases that involve the sale of drugs should not result in long prison sentences. Yet in Florida sale or possession of even the smallest quantities of illicit drugs can require judges to give harsh punishment of years of prison.

Recently a group of conservative and liberal Florida lawmakers unanimously agreed to send a prison diversion bill out of committee for a vote in the Senate. The goal of the bill is to end minimum mandatory sentences in Florida for nonviolent offenses and to give Florida judges the discretion they need to create fair sentences with better sentencing options.

As citizens we need to make our representatives understand that we want all of these state and federal unfair minimum mandatory sentencing laws changed. Nonviolent people our spending too much time needlessly imprisoned in Florida and throughout our country to the point that federal prisons wrongly hold thousands of prisoners beyond their release dates.

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.

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. 

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?

Why American Law Enforcement Wages War Against Us

The current crisis of police violence, gamesmanship and civil rights violations in Ferguson, Missouri - of all places - brings to light the guiding militaristic 'win at all costs' operational guidepost of American law enforcement. Clearly law enforcement in the United States has lost its way. 

But Officer, I wasn't speeding!

One of the unfortunate consequences from the winding down of America's foreign wars has been the marshaling of militaristic slogans from veterans into the police community. But not only have ideas of war from the Middle East infiltrated the police community - the used armaments from those wars have made their way to middle America. Now the smallest police forces in America can boast of having tanks, rocket launchers, armor piercing equipment and many other battlefield tested weapons. No wonder there's a war mentality in American law enforcement. Since they have the equipment of war what are they suppose to do, simply sit on it? Who are these armaments to be used against?

Our federal and state governments share blame for periodically declaring war against various segments of American society. In the late fifties and sixties civil rights marchers were arrested in the South even as they fought police to protect their basic constitutional rights such as the right to vote. Later as the Supreme Court defended the defenseless by finally protecting civil rights, other wars emerged against Americans. Again these wars were waged by law enforcement. Among the most bitter fights is the war on drugs conducted for two generations which has successfully incarcerated millions of otherwise law abiding citizens, destroying lives without pity nor mercy while making a mockery of justice. 

Yet lost in the shameful statistics of waste and decay from harsh drug minimum mandatory sentencing found in federal and state prisons is an interesting question. What have these corrupt sentences from wars waged against our own citizens done to prosecutors and law enforcement? It has made them cynical, base, immoral and free from the burdens of conscience. It has empowered the untrustworthy with the ability to imprison those whom they hate thereby imperiling the very rule of law upon which our republic was founded.

What can be done to change the very hearts of law enforcement officers? Law Enforcement officers who want to wage war against us must find other work or face imprisonment themselves. New police leaders must be appointed and elected who will work to hire only those who are truly fit to wear their badges with honor and pride to defend American constitutional rights. In the mean time could someone please ask the cops to lock up the rocket launchers before they accidentally hurt somebody.

WHY MANDATORY MINIMUM SENTENCES SHOULD BE ABOLISHED FOR ALL STATE & FEDERAL CRIMES

Millions of lives have been ruined by unforgiving federal and state minimum mandatory sentences that have taken discretion away from judges. Minimum mandatory sentences created an imbalance of power between judges and prosecutors in which prosecutors grew more powerful than judges because it was the prosecutors who determined how to file crimes in such a way that mandatory minimum sentences were triggered. 

By threatening to artfully charge crimes in which the judge would have limited discretion, prosecutors routinely force defendants to plead guilty or risk going to trial and possibly losing without hope of a reasonable sentence. Often prosecutors will have no qualms about filing additional criminal counts even when the additional charges are unmerited by the facts and circumstances of the case. This gives prosecutors a unique and powerful strategic advantage in negotiations toward a plea bargain that may be difficult to overcome even when a defendant clearly should not be charged with a crime that triggers a mandatory minimum sentence. 

In federal drug trafficking cases for cocaine, methamphetamine, hydrocodone or marijuana defense counsel looking for the best sentencing outcomes must avoid harsh mandatory minimums, which is often a difficult task due to the strict federal sentencing guidelines. It's always important for defense counsel to look for Federal or Florida laws that may undercut the application of the mandatory minimum in drug or aggravated battery cases. In Florida the youthful offender act may allow a judge to sentence far under the threshold mandatory minimum sentence that would ordinarily apply.

The best reason to abolish mandatory minimum sentences is that the laws thwart the goals of fairness, justice and equality before the law, since some people will be charged with the mandatory minimum while others aren't for the same set of facts. When facing a possible minimum mandatory sentence every defendant must make the stark choice of pleading to one crime or going to trial on a far riskier crime. 

One might argue that the mandatory minimum sentences could be made fairer by taking this discretion away from prosecutors. Although it might at first seem much better to have a fair-minded judge not a career prosecutor making this important decision, in time many judges would also abuse this power just as prosecutors have done. Too often judges, just like prosecutors, have been known to twist arms to force a change of plea. Further, traditionally it is prosecutors who determine the appropriate charge that they believe they can prove at trial, because it is the prosecutors who will be stuck trying the case if it's not filed in a reasonable way.

No, the problem is not who decides which cases should trigger a mandatory minimum sentence; the problem is the mandatory minimum sentences themselves. The very application of such strict sentencing is destructive not only to those unfortunately imprisoned but also corrupts those who enforce and prosecute the laws. This is especially true in nonviolent criminal cases such as drug cases where mandatory minimum sentences are routinely abused by prosecutors to force defendants to serve long sentences instead of receiving help for their drug addictions. 

In Florida criminal laws now make mandatory minimums required for some forms of aggravated assault and other crimes if a firearm was allegedly used though the victim was never harmed. Because every case is different, every sentence should be based on the facts and circumstances of that case, with some leeway based on the defendant's prior record and the harm, if any, to the victim. Yet too often only the harsh minimum mandatory sentence is all that really matters and that's why as a civilized society we must abolish all mandatory minimum sentences.

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. 

HOW FLORIDA'S YOUTHFUL OFFENDER ACT HELPS JUVENILES AVOID HARSH DRUG SENTENCES

The trend of current criminal law acknowledges that whenever possible children charged with crime should not be treated as adults. The Florida Bar has been pushing for judges rather than prosecutors to determine when a child should be treated as an adult.

Free Our Gang from Prison

In Florida, juveniles whom prosecutors have charged as adults or young adults up to the age of twenty-two may be granted Youthful Offender status for a second chance. This may happen even over the objection of the State Attorney's Office if a judge can be persuaded with effective arguments to make a finding that a child  or young adult qualifies under the statute. 

A young person who pleads guilty under the Youthful Offender Statute may preempt the application of draconian sentencing laws in the following ways:

First, any harsh drug minimum mandatory sentences that would normally be triggered by conviction of a significant drug offense may be avoided. For example, in drug trafficking cases for drugs such as marijuana, heroin, cocaine, methamphetamine or oxycodone the outrageous long term sentences typically of three, ten, fifteen and twenty-five years of prison may be avoided. 

Second, a young person charged with various firearm counts may be able to avoid specified minimum mandatory sentencing which a judge would otherwise not be able to sentence below. For example, in a case of possession of a sawed-off shotgun, a young defendant could avoid a minimum mandatory sentence of three years on the firearm count. 

Third, in cases of sexual battery, lewd and lascivious conduct or sexual assault, mandatory sex offender probation conditions can be avoided under the Youthful Offender statute. Many times young people are charged as adults even when the actual sexual conduct was consensual. For example, when a High School senior has consensual sexual relations with a freshman whose age falls just shy of recently amended Florida Romeo and Juliet statutes. Also, in a recent article Richard Sanders makes a compelling argument that imposing mandatory sex offender probation conditions is not required under the Youthful Offender Statute despite some poorly reasoned case law to the contrary.

Finally, the large fines typically imposed in significant criminal cases can also be avoided under the Florida Youthful Offender Statute if the presiding judge is persuaded that the young offender neither has the means nor ability to pay or that a fine would be detrimental to becoming a productive citizen in the future.


Young people perceive the passage of time differently than adults and imposing any jail on a young person is a much harsher punishment in actual deprivation than a similar punishment to an adult. Further, as psychiatrists have long noted and as the U.S. Supreme Court has recently come to realize, the brain functioning properties of children may them more likely to do foolish things, to not think thru things as an adult would and to not be as responsible as an adult might be.

Under Chapter 958 of the Florida Statutes the Court merely needs to make a finding that a qualifying defendant would benefit from a set of sanctions which are likely to improve his or her "... chances of correction and successful return to the community." This, of course, should be the aim of every judge in every criminal case. Yet too often our best judges have their decision making tied by legal restrictions and are kept from doing their most important job, which is constructing a sentence that punishes as little as possible while still deterring crime. The goal of a good judge is to sentence is such a way that a defendant does not become a ward of the state, but instead becomes a productive, law-abiding citizen.

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.

FEDERAL PROSECUTORS TOLD TO NO LONGER ENFORCE MARIJUANA LAWS IN STATES WHERE IT'S LEGALIZED

Your favorite Clearwater criminal defense attorney just obtained a memorandum sent today to each federal prosecutor working in every United States Attorney's office. The memorandum outlines the factors which every prosecutor must now consider before pursuing marijuana trafficking cases.

Here are the six critical factors to be used by prosecutors in the future for every Department of Justice prosecution as delineated in the memorandum:

Is Cannabis Legal?

1. Preventing the distribution of marijuana to minors. 

2. Preventing revenue from the sale of marijuana from going to criminal enterprises, gangs and cartels. 

3. Preventing the diversion of marijuana from states where it is legal under state law from being dispersed to states where it is not legal. 

4. Preventing state-authorized marijuana activity from being used as a cover or pretext for trafficking in other illegal drugs or other illegal activity. 

5. Preventing violence and firearm use. 

6. Preventing DUI impairment from marijuana. Preventing the growing of marijuana on public parks or other public land or other federal property. 

What is most interesting is the fourth paragraph which represents a sea change of policy from Attorney General Holder's previous guidelines for his prosecutors. 

Now state authorized marijuana activity will be monitored to prevent its use in other illegal drugs or other illegal activity, whereas before even if a state had legalized marijuana, the federal government viewed the marijuana growing as illegal activity subject to the federal law of drug trafficking in itself. 

Clearly citizens in states that do not allow marijuana will not be as likely as other citizens to be subject to the harsh minimum mandatory sentences for marijuana drug trafficking cases, which should bring some disparity of sentencing arguments as well as disparity of prosecution arguments into play by enterprising defense attorneys in every jurisdiction.

Here in Tampa Bay, Florida we can only hope that a new constitutional amendment legalizing medical marijuana will not only make the drug legal for medicinal purposes, but will stop at least some overzealous federal prosecutions that often result in unfair minimum mandatory prison sentences that judges do not have the discretion to go under. Because prosecutors always had more discretion under the Federal Sentencing Guidelines, this roll back of harsh sentencing by Attorney General Holder will save many people from being branded as criminal by our government.

ATTORNEY GENERAL ATTACKS LONG PRISON SENTENCES: TWO MILLION AMERICANS IN PRISON IS FAR TOO MANY

Your favorite Clearwater Criminal Defense Lawyer recommends that every American listen to last night's heroic speech by Attorney General Holder in which he outlines the failed brutality of harsh minimum mandatory sentences in America, a country that incarcerates one out of every twenty-eight of it's children as well as two million of its adults.

DOJ for Fair Sentencing?

The truth is that minimum mandatory sentences especially in nonviolent drug cases are destroying far more lives than the underlying crimes being punished. 
Federal Sentencing Guidelines have taken far too much discretion from fair minded federal judges and given that discretion to ambitious prosecutors out to make a name for themselves by scoring ever longer prison sentences in high profile drug cases. 


Their boss, the Attorney General, states in his speech that the Federal Sentencing Commission and Congress need to rein these prosecutors in by working to reduce tragic outcomes by giving discretion back to federal judges. After noting that more than two million Americans are in prison he gave some hope for change:

The Department of Justice is determined to continue working alongside Congressional leaders, judges, law enforcement officials, and independent groups – like the American Bar Association – to study the unintended collateral consequences of certain convictions; to address unwarranted sentencing disparities; and – where appropriate – to explore ways to give judges more flexibility in determining certain sentences.  

Too many people go to too many prisons for far too long for no good law enforcement reason.   It is time to ask ourselves some fundamental questions about our criminal justice system.   Statutes passed by legislatures that mandate sentences, irrespective of the unique facts of an individual case, too often bear no relation to the conduct at issue, breed disrespect for the system, and are ultimately counterproductive.   It is time to examine our systems and determine what truly works.   We need to ensure that incarceration is used to punish, to rehabilitate, and to deter – and not simply to warehouse and forget.

The Attorney General also described the enduring problem of disparity of sentencing in his speech:

  I am concerned by a troubling report released by the United States Sentencing Commission in February, which indicates that – in recent years – black male offenders have received sentences that are nearly 20 percent longer than those imposed on white males convicted of similar crimes.

It took far too many years for the Sentencing Commission and Congress to finally change the disparity of sentencing in cocaine versus crack cases. Clearly the criminal justice system in America today is failing in its primary obligation to provide fair sentencing which as the Attorney General notes in his speech must also "promote public safety and deterrence." We finally have an Attorney General, now free from political constraints from the President's re-election bid, who can do what he knows is right, first by acknowledging the recent studies and reports against harsh sentencing and then by pushing the Justice Department to begin the hard work of creating fair sentences by giving federal judges more discretion in sentencing.
But why wait for Congress and the Sentencing Commission to change the Federal Sentencing Guidelines? Too often Federal Prosecutors are restrained by internal Justice Department rules and local Federal United States Attorneys who allow only one Defendant in a conspiracy to be granted a downward departure. 
Why not allow greater use of downward sentencing by filing 5K co-operation motions more freely so that Judges will have the discretion to give fair sentences? Tampa Bay Defense Attorneys often find that Middle District of Florida prosecutors in Tampa deny federal judges the opportunity to go under minimum mandatory sentences by strategically failing to file an appropriate motion for downward departure even where there has been adequate co-operation just to keep the sentence high.