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January 15, 2018
Senate bill would allow judges more discretion in sentencing

By Jim Ash
Senior Editor

Judges could deviate from harsh, one-size-fits-all, minimum mandatory sentences for drug trafficking under bipartisan proposals gaining momentum in the Florida Senate.

Sen. Jeff Brandes One measure (SB 694) by Sen. Jeff Brandes, R-St. Petersburg, would allow judges to “depart” from minimum mandatory sentences if the defendant wasn’t part of a continuing criminal enterprise, didn’t cause death or bodily harm, use a weapon, or threaten violence.

“What you’re seeing is the pendulum starting to shift,” Brandes said. “We have to have these bold conversations about criminal justice reform, and that starts with some of these things like judicial safety valves.”

Quote At a December meeting of the Senate Criminal Justice Committee, Brandes was careful to remind his colleagues that the measure doesn’t do away with minimum mandatories, and that the escape valve would be rarely used, since most trafficking cases end in plea bargains.

But he said untying judges’ hands could ultimately cut prison costs and prevent headline-grabbing cases like Cynthia Powell, the Broward County woman with an otherwise clean criminal record who in 2002 was sentenced to 25 years for selling 35 oxycodone pills, an outcome even her judge regretted.

“Frankly, we’re treating addicts like they’re kingpins with mandatory minimums,” Brandes said. “I think the last thing we want is to put judges in a position where they know they’re doing the wrong thing, but they have no choice but to do the wrong thing.”

Brandes’ measure passed 5-1, with only Sen. Denise Grimsley, R-Lake Placid, opposed.

The committee also voted 4-1 (with Grimsley opposed) for a measure (SB 482) by committee Chair Randolph Bracy, D-Ocoee, that would allow judges to depart from three-year mandatory sentences for most drug trafficking convictions, but not those involving opioids.

Another Bracy measure (SB 644) that would force police to issue “juvenile citations” instead of arresting minors for various low-level crimes, passed 4-2, with Grimsley and Brandes opposed. Critics say they support juvenile justice reform but oppose limiting police discretion.

Lawmakers sponsoring the reforms say they want to reverse decades-old get-tough-on-crime policies that have led to mass incarceration with little or no justification for the huge social and economic costs.

A report last year by the National Center for State Courts shows that more than 30 states adopted minimum mandatory sentences at the dawn of the 1980s crack cocaine epidemic, followed in the 1990s by three-strikes and truth in sentencing laws that targeted repeat offenders.

As a result, the number of inmates in state and federal prisons zoomed from 294,000 in 1978 to 1.4 million in 2008. With about 100,000 inmates, Florida has the 10th-highest incarceration rate in the nation, according to the Sentencing Project.

A 2014 National Research Council report says the crackdown may have slightly reduced crime, “but the magnitude of the reduction is highly uncertain and the results of most studies suggest it was unlikely to have been large.”

Lobbyists for the American Civil Liberties Union, Southern Poverty Law Center, Florida Public Defender Association and Florida Association of Criminal Defense Attorneys, all voiced support for the bills in the Criminal Justice Committee, as did the James Madison Institute and Families Against Minimum Mandatories.

FAMM policy director Greg Newburn said giving judges more discretion will bring Florida more in line with states like Michigan, which saw a 40 percent drop in crime in the decade after it repealed minimum mandatory laws, and Louisiana, which only recently did away with them.

“Let’s recognize the reality of how the drug underworld works. Let’s recognize the fact that some users deal and some dealers use,” Newburn said. “And let’s let the judge, at the time of sentencing, take into account all of the different factors.”

Despite a growing drumbeat, supporters still face an uphill battle. Last year, the Senate killed a measure by Sen. Daryl Rouson, D-St. Petersburg, that would have eliminated mandatory sentences for most non-violent crimes.

Sen. Rob Bradley, a Flemming Island Republican and attorney who chairs the Appropriations Committee, offered a not-so-subtle reminder that he expects the reforms to pass this time.

“I think that at the end of the day, there are some changes that perhaps would make the bill a little better,” Bradley said. “But today is about sending the message that we’re serious as a Senate in addressing this issue that we have put off as a state for too long. And I’m going to hold everybody to their word.”

[Revised: 10-19-2018]