2 Strikes and You’re Out, Florida’s Harsh Career Criminal Sentencing

A recent article took a look at Florida’s Prison Releasee Reoffender statute, which mandates a maximum penalty for designated offenders. The problem with sentencing strictures that take discretion away, is that imbalanced sentences can follow. The man discussed in this article, Steve Brana, was sentenced to life for robbery, except the robber with the gun got less time. Brana’s only prior offenses were juvenile burglaries. It’s appropriate to take a violent offender off the streets for a time to ensure the safety of the community, but life in prison for an accomplice (or principle) who has no violent history may not be necessary.

Bi-Partisan Criminal Justice Reform is Gaining Momentum

Criminal justice reform has been a growing topic of late, and has been garnering more and more support from both sides of the aisle. Recently, even President Trump has signaled his support for such reform. It makes sense from a lot of standpoints: more efficient justice, less recidivism and less expense, while reuniting families: especially those separated by excessively long prison sentences for non-violent offenses. The growing movement has finally gained enough steam that the Senate appears poised to vote on a justice-bill, albeit a ‘slimmed-down’ version, before the end of the year. This is a good thing, though as the name of the bill, the “First Step Act”, implies, it should be merely the beginning of positive reforms.

Bar President Michelle Suskauer

Florida also has a need for criminal justice reform. Florida has a very draconian sentencing structure, in many cases imposing decades-long mandatory minimum sentences on non-violent offenses that far exceed the federal sentences that are being reconsidered. Florida Bar President Michelle Suskauer, who has spent many years in the justice system as a defense attorney and is acutely aware of the issues has made a push for consideration of the issue to raise awareness. The Florida Bar recently held a Criminal Justice summit to discuss the issue (the Bar cannot take a position), and Suskauer wrote an informative update in an OpEd published in the News-Press this week, and elsewhere. You should definitely check out her more detailed article, here.

AG to Shift Policy to seek Harsher Penalties on Federal Drug Offenses

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.

Florida’s New Death Penalty Declared Unconstitutional

Florida’s Death Penalty laws are once again in disarray.

The Supreme Court

Last year, the Supreme Court struck down the procedure Florida was using to determine when the death penalty should be imposed, in the Hurst case. That meant that there was functionally no death penalty in the state of Florida. The legislature moved quickly to amend the law to establish a new procedure to prosecute the death penalty in Florida, and a new version was signed into law in March. Now, all that work is out the window…

Judge Milton Hirsch, a circuit judge in Miami-Dade, has ruled that the new procedure is also unconstitutionally inadequate. The Florida procedure does not require a unanimous jury verdict before the death penalty can be imposed. Florida and Alabama are the only states that did not require unanimity, and that specific issue was not discussed by the Supreme Court in the Hurst case. Ultimately, the issue is likely to be appealed to the Florida Supreme court, and potentially the U.S. Supreme Court again, but Judge Hirsch’s opinion is the first to address the issue since the new procedure was passed.

Hirsch was critical of the law, finding that the changes were not enough. He wrote, “Arithmetically the difference between twelve and ten is slight, but the question before me is not a question of arithmetic. It is a question of constitutional law. It is a question of justice.”

Timothy Hurst, currently on Death Row

Meanwhile, the other issue up in the air is whether the Hurst decision is retroactive. That is, are all of the Floridians on death row entitled to new sentencing hearings?- 390 of them are currently on death row. While they would still be subject to a new death sentence, a ruling finding that Hurst is retroactive would likely spare a great number of inmates that the state would not wish to retry their sentencing hearings.

While it seems to be a no-brainer that if the procedure used to impose death was unconstitutional that the sentences could not stand, the courts have often held that these types of rulings are procedural, and do not apply retroactively. It will be interesting to see what the Florida Supreme Court does on the issue. Until then, Florida executions will have to be on hold. The Florida Supreme Court recently heard arguments regarding whether Hurst will mandate that he, and many other similarly situated cases will be reduced to life without parole.

Bipartisan Coalition Looks Targets Florida for Sentencing Reform

Advocates of sentencing reform have been doing a nationwide tour for their push, and came to Florida this past week. Brian Elderbroom, of the Urban Institute, took part in a “Fair Sentencing” event at the Florida State University College of Law. Also taking part was Lauren Galik, who’s report “The High Cost of Incarceration in Florida: Recommendations for Reform” can be found online, HERE.

There is a serious movement from both sides of the aisle to put more common sense in sentencing, and in doing so, reduce the cost and potentially be more proactive in preventing crime. It’s a movement to keep an eye on.

read more here. and here.

Supreme Court Strikes Down Florida’s Death Penalty Sentencing

The Supreme Court has found that Florida’s unique death penalty sentencing procedure is unconstitutional. The court found years ago that a jury must find the aggravating factors necessary and to makes the ultimate selection of a sentence of death. Florida’s procedure requires the jury to find the factors and to make a recommendation of death, but then allows the judge to make the final decision. The court was not satisfied with this advisory function of the jury. The death penalty sentencing procedure was found to be insufficient and the cases that previously supported it have been overturned by this week’s 8-1 decision.

Some news sites have said that the Court found Florida’s death penalty Unconstitutional. This is incorrect… it was the procedure by which Florida imposes the death sentence that has been found lacking. Currently there are about 365 inmates on Florida’s death row, and probably all a product of this sentencing scheme. Undoubtedly, they will all be raising this issue. The legislature is already considering bills to adjust the sentencing scheme to comport with the court’s ruling.

Convicted Killer Timothy Hurst via FL DOC

However, this decision may not provide relief for many of the inmates already sentenced to death. Generally, a decision won’t be retroactive if it deals with a procedural issue, and this is very much a procedural ruling. It would seem shocking that courts in the future might allow dozens or hundreds of death sentences to stand based on sentences that did not include the Constitutionally required fact finding by juries… but that remains to be seen. We’ll be watching closely.

Here’s the slip opinion in Hurst v. Florida.

Risk Assessments: Will People be Sentenced for Crimes they Might Commit in the Future

Fivethirtyeight.com took an in-depth look at the growing use of Risk Assessments in the criminal justice system. Risk Assessments generally use statistical comparisons to determine whether people’s circumstances are more likely to re-offend. So far, they have primarily been used as part of the evaluation as to what bond, if any, is appropriate for pretrial release. One of the main functions of bond are to protect the community from future harm, and the statistics can help predict the likelihood of additional offenses while the person is on community release. They are used here in Lee County as part of the First Appearance (bond) hearing, as well as statewide in Juvenile court.

Now, some places are considering using them in sentencing, the article specifically references Pennsylvania considering it. In theory, such a sentencing plan could help provide less harsh sentences for people who are unlikely to re-offend. However, the big problem that jumps out is the converse… that people could be sentenced more harshly for the chance that they could commit more crimes. That is, they would be punished for crimes they had not committed. That’s inherently problematic, and would likely face Constitutional challenges if the doctrine ever becomes law. There are additional problems, such as inherent racial imbalances that would likely permeate a statistical system, and departing from individual, case by case sentencing that could specifically consider the characteristics of each case and each Defendant.

The use of Risk Assessments in sentencing runs a severe risk unfairly punishing people based on speculative, generic “likelihood” guesses of future offenses. That doesn’t do a good job of evaluating the person involved, and may not sentence people for the crimes they actually commit. Further, it is likely to run afoul of Constitutional safeguards against unusual punishment.

Federal Judge Helps Reduce a Sentence he was Forced to Impose

I’ve complained about the inequities of mandatory sentences, and the problems inherent in removing all judicial discretion from sentencing. When you impose blanket rules, you will end up with unjust results. The Federal system has already moved to roll back some of the mandatory sentences that have been imposed on drug offenses. Now, one federal judge took it upon himself to push the prosecutor’s office to drop some charges to allow a re-sentencing of an offender the judge had been forced to impose an extremely harsh sentence. Some might not have any sympathy for Francois Holloway, as he was undoubtedly guilty of the crimes, but the required stacking provisions meant he got sentences several times longer than his codefendants, and he wasn’t even the one carrying the firearm.

Mandatory sentences that eliminate discretion spawn cases like Marissa Alexander, who may be facing 60 years for firing a warning shot that harmed nobody. Very rarely to violent offenders have sympathetic stories with a chance of swaying the legislature, but hers is the rare exception that may affect positive change. There are not many judges like Judge Gleeson, who took it on his own initiative to push for a just sentence. Gleeson criticized the system further, blaming prosecutorial abuse for a “significant number of federal inmates who are serving grotesquely severe sentences.” I counter that the prosecutors are not abusing their power, merely exercising the power granted to them through harsh sentencing schemes. The legislators have told them, both on the federal level and in states like Florida, that they want harsh sentences: it’s literally mandated by law. Those draconian rules should be the ultimate focus of our concern: they merely provide the framework under which the criminal justice system operates.

Also, the buildup in lengthy incarceration is wildly expensive and taxing on our system. Ironically, crime rates have been dropping just as incarceration rates are finally coming down. Harsh sentences are probably not the most effective crime deterrent, and certainly not the most cost effective.

Man Facing Life in Prison for Pot Brownies

• Teen sold pot brownies.
• Could be sentenced to life in prison.

Jacob Lavoro Mug

Texas authorities have enhanced the charges against Jacob Lavoro, a 19-year-old, because he drew the oil out of the marijuana leaves, thereby ‘refining’ it. He baked the marijuana in to pot brownies, which he sold for $25 each. So, he committed a crime, but a life penalty doesn’t fit the crime. Keep in mind, he hasn’t been sentenced to life in prison, and its unlikely any prosecutor or judge would do so. But he could be looking at some serious jail time. It may not be a crime in Colorado, but it certainly is in Texas, as it is in Florida.

via nbc-2: http://www.nbc-2.com/story/25588521/life-sentence-for-pot-brownies#.U34YbJRdU_M

Thoughts on NBC-2’s Drug Sentencing Story

• Michael B. Edwards was sentenced to 60 years in prison for cocaine charges in 1993
• He has already served more than 20 years behind bars, so far

Michael Edwards in DOC

If you didn’t get a chance to check out the NBC-2 story, spend a few minutes reading or watching it. Mr. Edwards was a drug addict, who got arrested for his involvement, and then hammered by the courts with an extremely harsh sentence. According to the story, the state will pay over $1,000,000 to pay for his incarceration, as he faces decades more than the 20 years he has already served. A review of the file discloses that even the sentencing judge found his efforts at reforming his life while incarcerated to be commendable.

The story does sugar coat the story, or gloss over some of the bad facts. Mr. Edwards didn’t merely possess cocaine, he was convicted of selling it, on two separate occasions. His prior record was terrible; he’d already been to prison multiple times for many charges, including a prior cocaine trafficking conviction. His plea offer was for 15 years, and that was due to his substantial record.

I stated in my previous article that the sentence was more than he could get in state court for a possession charge. To extend his sentence out to 60 years, he really had to get hammered. First, it wasn’t merely possession: it was two counts of sale. Secondly, he was classified as a Habitual Felony Offender, which double the potential penalty on each of the sale counts. Finally, he had to be completely maxed out. The court double him up under the habitual statue, and then ran the sentences concurrent. Basically, he got doubled up twice. Since there were two sale charges on different days, the sentences are legal. As I’ve said before, Florida has an extremely harsh sentencing regime. He is not slated for release until 2044.

According to the article and the case file, Mr. Edwards has one of the harshest sentences in Florida for sales of such small amounts of drugs. In addition to punitive value, harsh sentences are intended to serve as a deterrent to others who might sell. However, there comes a point where the punishment, when extended to its fullest limit, may not fit with the actual facts of the crime. That’s a pretty basic principle of law: the punishment should fit the crime. Either way, you, me, and the other taxpayers of Florida are footing the bill for the million dollar cost of the case, for an individual who never was given a shot at rehab.

UPDATE: Link to NBC fixed: http://www.nbc-2.com/story/25371390/should-a-tablespoon-of-cocaine-equate-to-life-in-prison