As the Florida legislative session gets underway this month, there is more criminal justice reform potentially up for discussion. Last year, Florida followed the federal government’s lead and passed a major criminal justice reform bill. That bill garnered widespread, bipartisan support and only suffered one ‘no’ vote in the Florida House. One of the issues that passed the Senate but did not make the House bill, nor the final law, was a reduction in the minimum amount of time that must be served on a prison sentence.
Currently, Florida requires that a DOC inmate must serve at least 85% of their sentence, and can only qualify for up to 15% time off for good behavior. The courts do not have any discretion to go any lower, and Florida no longer grants parole. There are some circumstances where inmates are released onto a parole-like ‘supervised release’, but they must first serve out 85% of their sentence. There is a new proposal this year that would potentially allow inmates to have a chance at release after serving 65% of their sentence. That modest reduction would save the state $860 million and remove 9,000 people from prison by 2024.
Also, the bill limits eligible reductions to non-forcible felonies, so murders, rapists and other dangerous individuals will still be subject to the 85% requirement, even if the bill passes. There is an argument to be made that some sentences for violent offenders are excessive, but the proposed bill does not reach that far and should not bar its consideration. One of the biggest hurdles it faces are that there are private companies that stand to profit from mass incarceration, and will lobby hard to shoot it down again. That’s going to cost Florida taxpayers money, even though both political parties agree sentencing reform makes sense.
The legislature will also be considering changes that would allow judges some discretion for sentencing certain drug offenders below current minimum mandatory requirements. This bill would be even more limited in scope than the gain time provision, and would not give relief to the most serious drug dealers for example. (It sounds similar to the ‘safety valve’ provisions of federal sentencing laws.) The bill contains other provisions limiting personal-use possession type offenses to county jail sentences, as well as requirements that when suspects of some offenses interviewed in a detention facility, that the entirety of the interview be recorded. The bill was already unanimously approved in the Senate committee which speaks to its bipartisan appeal.
Attorney General Jeff Sessions issued a new memo indicating a policy change for Federal Prosecutors to “charge and pursue the most serious, readily provable offense”. This overturns a policy memo issued by Eric Holder two years ago, which instructed prosecutors to avoid charging defendants with offenses that would trigger long mandatory minimum sentences on many drug offenses, in an effort to reduce non-violent drug offenders in our over-crowded prison system.
Prosecutors praised the decision as they enjoy having as much leverage as possible to prosecute offenders, and felt handcuffed by the Holder Memo. Critics feel this is a return to harsh mandatory sentences that do not serve their intended purpose. Under this policy, federal prosecutors would be seeking a 10-year mandatory sentence for a kilogram of heroin. In contrast, the State of Florida mandates a 15-year mandatory minimum sentence for possession of more than 14 grams of heroin (about half an ounce). And yes, there are extended prison sanctions for marijuana offenders, as well.
Posted in Criminal Law, Drugs, Federal, Florida, Uncategorized
Tagged drugs, eric holder, florida laws, jeff sessions, mandatory minimum, new laws, sentencing
As the legislative session neared a close last week, the Florida House and Senate reached a compromise to a bill that substantially changes the Stand Your Ground Law in Florida. The new law would shift the burden from from the Defendant to the prosecutor at the pretrial hearing to prove that the case is strong enough to proceed against the Defendant. If Governor Scott signs the bill, the burden will no longer be on the Defendant at the ‘Stand Your Ground Hearing’.
Though both the House and Senate agreed that they wanted to put the burden on the prosecutor for the pretrial hearings, it wasn’t until the last day of session on Friday that both houses came to a compromise on what that burden should be. The Senate was pushing for a beyond a reasonable doubt standard, while the House position to use a clear and convincing standard ultimately won out. The bill will now go to Governor Scott’s desk to sign before it becomes law. It is expected he will sign it, as the bill garnered widespread Republican support in both houses of the legislature.
What does this change mean? The original ‘Stand Your Ground’ law, among other things, created a right of immunity from prosecution for people who use justifiable force to defend themselves. Unfortunately, the legislature did not clearly establish a procedure for determining when immunity was appropriate, that is, how do you know when force is justified so that a person cannot be prosecuted. Over the next 12 years, the courts formulated a procedure whereby a hearing would be held prior to the case going to trial. The courts put the burden on the Defendant to demonstrate that he was immune from prosecution.
The legislature has now essentially said, hey wait: the burden is on the state to prove a case. We didn’t establish immunity to burden the Defendant, or to remove the burden from the State… we created it to protect those who used force to defend themselves. This new law, if it is signed by the Governor, will put the burden on the prosecutors to demonstrate by clear and convincing the likelihood that the defendant was not justified in using force before they can put the defendant to trial (where they will still have the burden beyond and to the exclusion of every reasonable doubt).
While there was strong support for the bill, there was opposition from anti-gun activists, as well as from many prosecutors. The opposition from prosecutors may seem surprising from a generally conservative profession, but this bill directly affects them by making it more difficult to prosecute cases where use of force will be raised as a defense. It has been speculated that prosecution costs will rise, but the other effect of the bill may be to discourage prosecutors from proceeding on cases they are less likely to win. The cost may end up being a wash when all the factors come to bear, but only time will tell. In the meantime, this bill will definitely help people who claim justifiable use of force.
FL Supreme Court
When the Florida legislature passed the “Stand Your Ground” law, one of the provisions is for immunity from prosecution from those who used force in self-defense, under the law. The lawmakers failed to explain exactly how this immunity would be exercised. The courts then worked to apply the law, and crafted a system where the accused can file a motion to dismiss based on that promise of immunity, and would have a chance to show the court at hearing they were entitled to immunity.
At issue is that the courts have found the burden is on the accused to prove their entitlement to immunity, instead of the state. The state normally bears the burden of proof, and some proponents of the law do not like that the burden has shifted onto the protected people the law was designed to protect. Unfortunately for them, the Florida Supreme Court upheld that procedure, since there was no specificity in the law. Lawmakers are now looking at the possibility of amending the law to put the burden to demonstrate that individuals are not immune in self-defense cases back on the state.
See Also: Florida Supreme Court Opinion upholding the procedure, Bretherick v. State
and the latest story via NBC-2
Here’s a pretty thorough look from Time Magazine at the changing mores and laws of marijuana regulation, lead by the states that have legalized recreational use: http://nation.time.com/2013/10/19/new-laws-chart-course-for-marijuana-legalization/
Famous TV attorney John Morgan, known for his ubiquitous commercials for Morgan & Morgan, is a big time supporter of medical marijuana, and he’s putting his money where his mouth is. Not only has he been heard in advertisements touting a ballot measure to legalize medical marijuana in Florida, reports indicate he is throwing substantial financial support behind the effort: to the tune of a quarter million in the last three months.
When I did a radio guest spot on B103.9 a few weeks back, someone asked if their out-of-state marijuana card did any good here: no, marijuana is ALWAYS criminal in Florida. And they suspend your driver’s license if you are convicted of even the smallest amount of possession. The caller asked if that was ever going to change, and until recently I had not seen any movement on it. There has not been any perceivable interest from Tallahassee. However, this kind of financial backing may give the grassroots movement the backing to make a change. Crimcourts will continue to track the issue.
For more info, you can visit the website for the group pushing the ballot amendment, People United for Medical Marijuana.
The Florida Senate Judiciary Committee approved a bill today that would make a few minor changes to the Stand Your Ground Law. It’s nothing major, it won’t affect the Stand Your Ground provision that has had some controversy. It will, if passed into law, create guidelines for neighborhood watches and clarify liability for harming bystanders. It will also make it clear that law enforcement must fully investigate when there is a self-defense claim. That’s not a very meaningful provision, as the old law did not discourage investigation, merely prohibited arrest when stand your ground was found. This is presumably to address the law enforcement shortcomings in the Zimmerman case, but it should be noted there was extensive investigation by Sanford Police in that case; many people disagreed with the outcome of the investigation.