WELCOME TO THE OFFICIAL RICHARD E GERSTEIN JUSTICE BUILDING BLOG. THIS BLOG IS DEDICATED TO JUSTICE BUILDING RUMOR, HUMOR, AND A DISCUSSION ABOUT AND BETWEEN THE JUDGES, LAWYERS AND THE DEDICATED SUPPORT STAFF, CLERKS, COURT REPORTERS, AND CORRECTIONAL OFFICERS WHO LABOR IN THE WORLD OF MIAMI'S CRIMINAL JUSTICE. POST YOUR COMMENTS, OR SEND RUMPOLE A PRIVATE EMAIL AT HOWARDROARK21@GMAIL.COM

Thursday, December 29, 2005

SENSELESS SENTENCING

A critic comments on our position on sentencing:


Rump, you have taken the politically correct and expedient position on the HVO/PRRP sentencing issue. I know what I write will be heresy among my fellow criminal defense attorneys BUT the fact remains that the Judges of the 11th judicial circuit have themselves to blame for all the Career criminal sentencing laws. When I was an ASA in the mid to late 1990's the Judges in Miami did everything they could to undermine the Guidelines and the Career criminal statutes. Rump I know you remember the days when you could send Jethro or Merry a few hundred bucks and have your client whine about his drug problem and voila', you had a BARBERA deviation and a sentence of 364 SORT on a career criminal case. That all ended when the Miami Herald in one its few decent investigative pieces, exposed the sham of the SORT program in its "crime and no punishment series". The SAO through the FPAA then lobbied and passed a law outlawing drug deviations.
The next attempt by the Miami Judges to subvert the intent of the legislators on Career Criminals came when they decided that the word "Shall" really meant may and that Judges had the Freedom to not impose Minimum Mandatory sentences on HVO cases. Incredibly the Third DCA accepted their reasoning and the response was the GORT statute which proposed min-mans which were only waivable if the judges filed a written reason stating why it was not necessary for the protection of the community to impose the min-mans. Without skipping a beat Judges waived the min-mans like there was no tomorrow and now we have the PRRP statute which only allows the state to waive a Min Man.What used to disturb me as an ASA and now helps me as defense attorney is that the judges biggest concern always seems to be getting the case off their audit as opposed to what the facts and the offenders prior record is. Sometimes with a particularly ugly case or the rare case when the media is watching the Judges were more cautious. For the most part the question on a Judges mind seems to be "what is the lowest sentence I can offer this guy to make this case go away and not have the SAO appeal me?". I know this is great as a criminal defense attorney but is that really how important criminal cases should be handled?


Also Rump I know you will never admit this but the strengthening of the Career Criminal Sentencing Laws has also helped in the enormous reduction of crime that has occurred from the late 1990's until the present. Many of your younger readers may not recall but in the Mid 1990's this town was the Wild West. German Tourists were getting gunned down with a depressing regularity and robberies were close to 50 percent higher then they are now. I know you wont admit this Rump but part of this massive reduction came about because of the tougher sentencing laws.

As to the Drug Min Mans you are right on the money. They make no sense at all and the truly insidious thing about them is that the Major Drug Dealers can get waivers because they have info to give but low level mules get stuck with the min man because they can’t rat anyone out.Finally you are incorrect that Judges have no one to lobby for them. It has come to my attention that the DCA Judges are trying to get a pay increase and that A well connected lobbyist is lobbying on their behalf without compensation. Anyone else out there heard the same rumor?

Rumpole Responds: You have taken the time to write a well thought out critique and we thank you for that. In response to your points on an individual basis:

1) Guideline Drug deviations and the actions of Judges in offering pleas that under cut the Prosecution had more to do with the epidemic of over charging cases and criminal records that do not accurately reflect a person’s criminal history, then trying to clear an audit.

Lets look at a common scenario:

A defendant gets into a fight with his girlfriend and rips a chain off her neck in her apartment and gets charged with burglary with assault and robbery. He then pleads the case out to CTS and two years probation. Three years later he pleads guilty to grand theft auto at bond hearings when he is arrested in a stolen car driven by another person. One month later the Defendant gets into a fight with the same girlfriend’s brother and is charged with agg assault for waiving a stick at him or agg assault for driving his car at him, or agg battery for punching him and giving him a black eye. The State seeks enhanced penalties based on the priors. The Defendant has a drug problem.

What’s the solution? 10 years? 20. 30?

Read Judge Seals well reasoned concurrence in : Schaffer v. State, 779 So.2d 485 (Fla.App. 2 Dist. 2000) portions of which we have excerpted here. It answers most if not all of your points more eloquently than we could.


Mr. Schaeffer committed the instant offense at the age of twenty-five in the twenty-fifth month following his release from a Florida prison on December 29, 1995. Thus, Mr. Schaeffer was eligible for punishment pursuant to the PRRPA…

The events leading to this young man's incarceration for thirty years began at a Burdines Department Store…

In the young men and boys' department, they took merchandise off of hangers and hid it inside the purse. They exited the store the same way they had entered…

Mr. Schaeffer's conduct technically met the elements of an armed robbery. ..

What occurred here was nothing like the familiar, and far more dangerous, "stick up," where the perpetrator's deliberate intent from the start is to confront his victims with a deadly weapon for the sole purpose of freezing them in fear and rendering them incapable of interfering with the successful execution of the ensuing theft and getaway...

The prosecutor, however, made the choice to charge Mr. Schaeffer with the far more serious crime, the elements of which were technically and fortuitously met, rather than to bring charges that more accurately reflected the events that actually occurred. ..

The prosecutor's charging decision was lawful. Because reasonable people may disagree about the suitability of the charging decision, let that issue be debated elsewhere. It is the next decision the prosecutor made which in all truth profoundly shocked my judicial conscience. ..

Because the criteria for the PRRPA were met, the sentence could follow one of two paths: a judicial sentencing under the sentencing guidelines or an executive sentencing. The choice was in the hands of the prosecution. ..


At sentencing the defense attorney attempted to persuade the trial judge to find that "[o]ther extenuating circumstances exist[ed] which preclude[d] the just prosecution" of Mr. Schaeffer as a prison releasee reoffender.

Mr. Schaeffer's employer, his father, his wife, and a family friend testified without exception that in the year between the commission of this crime and his sentencing Mr. Schaeffer had done everything in his power to "turn his life around." He held a steady job, he purchased a home, he married his fiancee, and he became a father. His attorney argued that his prior offenses were drug-related and that Mr. Schaeffer had been an addict from a young age, but now he was doing all he could to reform his criminal behaviors. Recognizing that the facts were "technically" sufficient to convict Mr. Schaeffer for armed robbery, his attorney pointed out that the sentence he was receiving was as severe as if he had taken a gun and pointed it at the victim...


The prosecution countered that the judge did not have the discretion the defense was urging him to exercise and averred that the victim, Ms. Mumford, had requested that the prosecution seek the maximum sentencing range for the offense.

The record, however, does not tell us what "maximum sentence" she had in mind when she made this out-of-court declaration to the prosecution. Was it the maximum sentence for shoplifting and resisting a merchant? Was it the maximum sentencing guidelines sentence for armed robbery? Or was it the PRRPA sentence? Did she know that the PRRPA sentence was over four times greater than the high end of the sentencing guidelines range? Did she know that he had only been to prison once for nonviolent crimes that apparently resulted from a drug problem? Did she know what was now happening in Mr. Schaeffer's life as described at the time of sentencing by the witnesses? Did she know that the PRRPA sentence would prevent him from raising a new son? Did she know how much it would cost the State of Florida to incarcerate him for 10,958 days? Did she really believe that the retribution of a thirty-year sentence was worth the potential cost this sentence would exact upon Mr. Schaeffer's wife and baby?

Although there were plenty of extenuating circumstances in this case to outweigh even a fully informed victim recommendation for a sentence to the fullest extent of the law, the prosecution was free to ignore each and every one of them — and did.

.. The PRRPA does not require the prosecution to consider anything in the exercise of its discretion because the prosecution's decision cannot be challenged, appealed or set aside. In a time when the legislature is more and more frequently requiring trial judges to make written findings to support their discretionary decisions, all of which are reviewable for abuse, it has contemporaneously given the prosecutor, a party with an interest in the case, the absolute, unchecked power to make choices that could have a drastic effect on a person's liberty. This anomaly is quite a departure from our state's journey to a more just and fair jurisprudence.

... In one county Mr. Schaeffer could have received a short county jail sentence for shoplifting and resisting a merchant followed by probation with a requirement to repair the harm done to Ms. Mumford and Burdines.

Although the judge could exceed the guideline maximum, what judge who had been present throughout all the proceedings and heard all the facts in this record would have found adequate reasons to require the continued expenditure of tax dollars to keep this foolish but repentant new father behind prison walls beyond 88.75 months? Yet a prosecutor was given authority to quadruple that sentence. That alone is unreasonable. The fact that the authority was exercised is incredible.

The legislature was not present at Mr. Schaeffer's trial or sentencing. We do not know if the person in the prosecutor's office who elected to have him sentenced under the PRRPA was present at trial or sentencing. We do know that the judge who heard all evidence at both trial and sentencing was there. Yet his experience, his specialized training, his knowledge, and his independent judgment, which he and countless other judges use when fashioning a punishment to fairly and justly fit each individual defendant's crime and surrounding circumstances, were all pre-empted. Instead the sentencing decision was made, if not entirely at least in part, somewhere other than in the courtroom.


The result, in my opinion, is draconian. It does not sound like the sentence of an American court.

In 1798 the Congress of a young nation with vast unprotected borders and a fledgling national defense passed the Alien and Sedition Acts. Fearing disruption of this great new democratic republic from both the outside and within, Congress gave the President the extraordinary power to deport, detain, or require sureties of certain citizens of any foreign nation deemed hostile to the United States. It was the responsibility of the courts and its marshals to carry out whatever proclamation the President set forth.

These laws raised cries of protest from the states. They prompted the Virginia General Assembly to pass the Virginia Resolutions of 1798 only five months after Congress passed the Alien and Sedition Acts. Among their complaints the Resolutions pointed out that under the Alien Act Congress united legislative and judicial powers and delegated them to the executive, which, according to the Resolutions, "subverts the general principles of free government." Congress soon thereafter repealed the Alien Act.

Two hundred and two years later our legislature, under the PRRPA, has united legislative and judicial powers and delegated them to the executive — the state attorney. What is the legislature so concerned about today that it takes traditional judicial authority away from judges and gives it to prosecutors?

Rumpole mourns: This is the damage, the injustice, the draconian sentences that legislative mandated sentences create in the hands of an unwise, over-zealous, or just plain mean prosecutor.

See you in court preventing horrors like this from reoccurring.

8 comments:

Anonymous said...

you need to learn how to write in nice easy to read short posts. borrrrring.

Anonymous said...

From "13 Steps To Successful Blogging:"

8) Short & Concise

Anonymous said...

Rump this may be the most intellectually dishonest post you have ever written. Its interesting how when someone generalizes about people you like (eg Public defenders with the exception of the incurably lazy danish eating rory stein) you repeatedly warn about the writer "using a broad brush". Here one of your writers made a valid point--that Judges in this town brought this on themselves with all the games they play in order to pursue thier highest value of low audits and closing cases. In reply, you pick one particularly loathsome case and say that it answers all of the writers points. In my opinion one bad case does not deal with all of the previous writers points.
Come now rump do you really disagree with the writer when he states that Dade Judges approach most cases with the idea "what is the lowest sentence I can offer without the state appealing me?". You may be not be intellectualy honest enough to admit it but you know this is the truth.
You write that drug deaviations had "more to do with overcharging cases and criminal records that do nt reflect a persons criminal history then trying to clear audits?" Do you really believe this party line? You have written thoughtfully about how Judges, in order to reduce thier audits, punish people for going to trial and how wrong that is. Can't you at least acknowledge that the same malevolent forces of audit reduction also cause Judges to use Drug deviations for the same purpose?
It always amazes me how defense attorneys (I am a former Prosecutor now in civil practice happily denying money to accident victims) will always rail about how unfair something is but cant admit that in Dade County you guys really have it pretty good. I can tell you from a few executive assignments I handled, Judges North of County Line Road do not make court offers the way Dade Judges do. They dont let Simple cases sit for years and years and accept the lamest of excuses as to why a case should be continued. They dont let people violate probation seven times before sending them to prison etc.

Come on Rump quit your whining sit back and enjoy the fact that you practice in Dade.

Anonymous said...

Our insurance defense lawyer above is correct - we do have it great in Miami-Dade County. We also have the most volume, and the most contested judicial elections. In northern counties, no one runs against anyone, and they dont have the volume - KIND OF LIKE FEDERAL COURT

Anonymous said...

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