Unhandcuffing Justice: Proposals to Return Rationality to Criminal Sentencing
Americans love to be number one. Unfortunately, we are now tops in two negative areas: debt and prisons.
The federal government’s national debt and unfunded liabilities total $53 trillion, wrote David Walker, former director of the Government Accountability Office, in July 2008.1 This former comptroller general opined even before our pre-election market meltdown that “Washington’s current high-spending and low-tax policies serve to benefit today’s taxpayers at the expense of tomorrow’s. This approach is not only fiscally irresponsible — it is morally reprehensible. It eventually will result in a major economic crisis and serious hardship that will impact tens of millions of Americans in ways they have never experienced before.”
Also, our nation imprisons more people per capita than any other nation.2 Florida is leading this trend with the fastest growth of any state.3 A recent Pew Report noted that Florida “will run out of prison capacity by early 2009 and will need to add another 16,500 beds to keep pace.”4 With $65,000 per bed “as the best approximation for a typical medium security facility”5 and $19,308 per year for each Florida inmate,6 Florida must raise taxes, cut programs, or finance this $1.1 billion in initial capital costs plus an additional $314 million in annual recurring costs.
Yet Florida has not been scrimping on correctional costs lately. In 2007, Florida spent $2.72 billion dollars or an estimated 9.3 percent of its budget on corrections.7 This means that for every dollar spent on education, Florida spent 66 cents on corrections in 2007.8 In fact, an estimated 15.1 percent of Florida’s state employees work in corrections.9
The Problem: Justice System Policy, Not Crime, Has Increased Prison Demand
This increase in prisoners comes not from a simple increase in crime or from judges locking up more people found dangerous to society. According to the Pew Report, “most of the [prison population] growth, analysts agree, [has] stemmed from a host of correctional policies and practices adopted by the state.”10 Debts and prisons are interrelated. Imprisoning more people costs more money. This article describes a method of addressing these two problems by returning rationality to criminal sentencing.
The Solution: Return Discretion in Criminal Sentencing to Trial Judges
The authors discuss the history of sentencing and corrections, including Florida’s meteoric prison population growth, followed by proposals that promote judicial independence as a way to help solve the budget crisis by ending any further prison growth unrelated to protecting public safety. Our prison population is burgeoning because the Florida Legislature snatched discretion in criminal sentencing from the hands of judges. A decision was made that experienced judges could no longer be trusted to rationally make criminal sentencing decisions. Sentencing decisions were made by legislators without understanding any individual case facts. Criminal sentencing discretion is now almost wholly vested in the hands of prosecutors when they decide what charges are filed or dropped.11
This legislative decision occurred although judges were intended to serve as community arbiters to balance the power between prosecutors and defense attorneys in our adversarial system. Many judges are experienced former prosecutors or criminal defense lawyers who have been handling cases for decades. More importantly, all trial judges must individually stand for election (not retention) every six years, where any individual sentence perceived as too light could weigh heavily in the electorate’s mind. But still, the legislature removed sentencing discretionary to nonelected assistant state attorneys, whose zeal may be untempered by experience or electorate accountability.
A young assistant state attorney often has more power on sentencing than the judge. It is solely the prosecutor’s decision what charges will be filed, what plea to offer, and whether the plea should follow the guidelines. The problem of inexperienced prosecutors is compounded by the budget crisis, which forces drastic turnover in prosecutors’ offices. Salary disparities exist between assistant state prosecutors and not just private attorneys, but also all other government attorneys, save those working in legal aid. These problems have resulted in growing concerns about “fee justice” and the pending inability of courts to address serious criminal matters because of budget cuts.12
The Inception of Sentencing and Corrections as Influenced by Sir Thomas More
The history of the legal system in the United Kingdom has greatly influenced the American justice system. Like all premodern societies, the U.K. once lacked prisons and judicial discretion in sentencing. Upon a determination of innocence, people were freed. Those found13 guilty were executed by public hanging.14 This approach was criticized by Sir Thomas More in 1615 in his work Utopia. More suggested that executing thieves encouraged thieves to murder to remove witnesses, given that the punishment for thievery and murder were identical.15
More’s Utopia argued that instead of execution, criminals should serve as slaves for a number of years. He opined that this would allow criminals to serve the commonwealth with their labor, serve as deterrence to other potential criminals, and added that the government should only execute rebellious slaves.16
More’s ideas were gradually adopted. Judicial discretion and judicial clemency saved many a neck from hanging. In the U.K. “incarceration had, by the end of the eighteenth century, become an increasingly important form of punishment.”17 The adoption of incarceration instead of execution hastened as penal transportation of convicts to America ended with the Revolutionary War,18 and public opinion turned against executions.
From Judicial Discretion to Judicial Calculation of Mandatory Prison Time in Florida
On October 1, 1983, the Florida Legislature enacted the sentencing guidelines that greatly limited the judicial branch’s discretionary power.19 Before the guidelines, judges could levy a sentence from only a fine and no jail time up to the maximum prison time allowed by statute.20 Judges often issued indeterminate sentences, as permitted, and prisoners could be released early for good behavior on parole. The notable exceptions laid the groundwork for future judicial limitations. For example, in 1975, the Florida Supreme Court in Owens v. State, 316 So. 2d 537 (Fla. 1975), rejected a contention that separation of powers prevented the legislature from requiring a capital sexual battery convict to serve 25 years in prison before parole eligibility. The court held that setting punishment for crimes was the legislature’s domain.21
Some courts missed the writing on the wall that its discretion had been limited. For example, in 1984, the First District Court of Appeal considered and then upheld an upward departure in violation of the legislature’s guideline rules. In Garcia v. State, 454 So. 2d 714, 416-17 (Fla. 1st DCA 1984), the court explained that “[i]n our view, the traditional discretion of a sentencing court to consider all facts and circumstances surrounding the criminal conduct of the accused has not been abrogated by adoption of the sentencing guidelines.” The following year, the Florida Supreme Court rejected this reasoning in Santiago v. State, 478 So. 2d 47, 49 (Fla. 1985), when noting: “[t]he trial court’s rationale that felony drug convictions warrant a greater punishment in North Florida than is required in South Florida does not meet the clear and convincing test required by Florida Rule of Criminal Procedure 3.701(d)(11).”
The legislature next tinkered with sentencing using the 1983 guidelines, the 1994 guidelines, and the 1995 guidelines, which were all finally replaced on October 1, 1998, with the Criminal Punishment Code. The code abandoned the guideline sentencing systems, which had a sentencing floor and ceiling as guidelines for judges,22 in favor of a system with a sentencing floor where the ceiling was the maximum prison time permitted by statute.
Removing the Sentencing Ceiling from Guidelines While Keeping the Floor
Under the code, the floor is calculated using the code’s score sheet, often misleadingly called the guideline score instead of the code score. For a judge to go below the code’s score sheet recommended minimum sentence, he or she must consider evidence and find that such a departure is authorized under a very limited number of statutory departure reasons.23 The number of reasons why courts are prevented from departing is so lengthy that it would take an entire article to review these limitations.24 Any downward departure is subject to appellate review for abuse of discretion.
A judge is free to set any sentence to the maximum permitted by statute because the ceiling is absent. This enhancement is permitted except in cases of obvious judicial statements of prejudice.25 For example, a judge can and has sentenced a Floridian to 10 years in state prison for violating probation on a felony habitual driving while license revoked while possessing a small amount of cocaine. The maximum amount of time on each charge, both third degree felonies, is five years, which could be run concurrently or consecutively.
The Criminal Punishment Code: A Catch-all Downward Departure?
One way to return rationality in sentencing would be if a catch-all category existed for downward departure from the Criminal Punishment Code. This could be passed by the legislature — an unlikely prospect.26 One alternative would be for Florida courts to give meaning to current departure statute language. F.S. §921.0016(4) notes that “[m]itigating circumstances under which a departure from the sentencing guidelines is reasonably justified include, but are not limited to” and then lists several grounds for departure. The only logical inference from this language is that the legislature understood that other reasons for departure exist.
Legislature Singled Out Addiction as Sole Prohibited Reason to Depart Downward
The legislature also took the trouble to single out one reason for departure that must not be used. F.S. §921.0016(5) explains that “[a] defendant’s substance abuse or addiction, including intoxication at the time of the offense, is not a mitigating factor under subsection (4) and does not, under any circumstances, justify a downward departure from the sentence recommended under the sentencing guidelines.” Therefore, a plain meaning review of the current departure statute is that other nonstatutorily delineated reasons could justify a downward departure from the code’s minimum, save for the specifically excluded ground of substance abuse or addiction.
The other reasons for departure could be found by the appellate courts to require that a judge make a finding upon a rational evaluation of the facts of the case and the nature of the defendant that leads them to decide that a sentence below the code’s mandated prison time is appropriate. For example, Palm Beach County has an intensive residential drug treatment program located within a lock-down facility called the Drug Farm. The Drug Farm has been quite successful in rehabilitating drug addicts. Yet, the amenability of a defendant to Drug Farm is now not considered a valid reason to depart from mandatory prison.
Addiction Status Should Not Prevent Departure if Otherwise Valid Reason Exists
The current interpretation of the limitation of departure for drug addictions in F.S. §921.0016(5) makes courts fearful of considering drug addiction. But addiction is only a condition precedent to amenability to drug treatment, not the reason for departure. A judge who recently suspended a prison sentence to give a young man a chance at treatment did not depart for the above reasons, but instead the judge conceded on the record that he had no reason to depart and that he expected reversal if the state appealed.27 Appellate counsel brought a losing argument that in-patient treatment was the functional equivalent of prison in that case, but it is unclear if the argument has ever been presented that treatment for drug addiction is a related, but fundamentally different reason for departure than drug addiction alone.
F.S. §921.0016(5) is clear that simply because drug addiction motivated a residential burglary does not mean that the young girl who did it should avoid prison.28 But why should a judge be forced to send the girl to prison after finding that probation and drug treatment would be more appropriate? Prisoners say drugs are still accessible during incarceration. The young woman will consort with unrepentant criminals and have a low chance of rehabilitation. In a strict, supervised drug treatment program, there can be a good chance of rehabilitation. Parents have kicked their children out because of unaddressed drug addiction. Then when the young person breaks back into her home, the parents call the police for help with her drug addiction. Why should the trial court ever be forced to send a defendant to prison just because the prosecutor objects if the defendant and the parent/victim seek a drug treatment departure? The U.S. Supreme Court has found it impermissible for the California Legislature to penalize a person for mere status as a drug addict,29 so why should the status of a person as a drug addict be permitted to prevent Florida courts from using F.S. §921.0016 (4) as a ground for departure? Nobody is arguing that addict status alone should be a ground for departure, but neither should it permanently exclude a defendant with a legitimate reason to depart from being considered by the court.
Potential New Reason for Downward Departure: Pleading Open to the Court
What about a departure because a person takes responsibility and pleads open to the court? Currently, this is not allowed for departure.30 A person must have shown remorse, have committed the crime in an unsophisticated manner, and have no real criminal record (meaning this was an isolated incident) to secure a legal departure.31 When the state and client agree to a downward departure, it is always justified, but the judge lacks similar power to independently grant this departure.32 Why should such power be transferred from elected judges to nonelected assistant state attorneys who often lack the experience of the judges who have developed a deeper understanding because of experience sentencing on similar cases?
Here are some more real world examples. Judges see people who have avoided serious criminal trouble for decades arrested for trying to buy cocaine from police during a reverse-sting, or after getting caught driving with a suspended license. These people can score three or four years in state prison or more under the code. These defendants are not the cream of society, but they are often repentant while their serious criminal history is decades old. But one petty charge in the past decade reactivates a code score sheet for all past charges. Judges are powerless to do anything but implore the prosecutors for a departure. Without the prosecutor exercising discretion, murder, rape, and child molestation case trials are delayed because the state will not budge from code guideline pleas on these sorts of cases.
Mandatory Minimums Should Be Limited or Abolished to Facilitate Judicial Discretion
Presently, judges have the ability to use common sense to sentence someone they believe is a large-scale drug dealer to serious prison time because of the great upward room in sentencing. For example, sale of cocaine or possession of cocaine with intent to sell is a second degree felony calling for up to 15 years in prison. Thus, judges can use their discretion to max out an unrepentant drug kingpin to 15 years, even if the defendant does not score prison under the code. On the other hand, when a judge sees a repentant 21-year-old with a petty record who made a drug sale at 11 p.m. within 1,000 feet from a school during July, this judge has no choice but to hand down a three-year minimum prison sentence. This sentence must occur even if a suitable drug treatment program is available and would, at much lower cost, greatly reduce the chance of recidivism. Without judicial discretion, everyone loses. The judge realizes that justice wasn’t done; another expensive prison bed is bought for someone who could be sent elsewhere with the threat of prison hanging over his or her head; the defendant’s risk of recidivism increases; and valuable court time may be spent on trials that should have been resolved with a reasonable plea agreement or a plea to the court.
The example of Richard Paey stands as a testament to the idiocy of removing judicial discretion. Paey, a graduate of the Law School of the University of Pennsylvania, never took the bar exam after a car accident and subsequent surgeries, which led him to extensively use prescription painkillers.33 Law enforcement watched Paey for months while he bought 1,200 pills. There was only mere speculation that Paey did anything other than take these relatively low-level narcotics34 on a constant basis instead of taking a stronger medication less often. Paey, a 45-year-old father of three, got a mandatory minimum of a 25-year prison sentence and a $500,000 fine for drug trafficking. Paey’s judge could not exercise judicial discretion because of state mandatory minimum sentencing guidelines. “This is [a] problem for the Florida state legislature and the governor,” Judge Diskey said.35
Gov. Charlie Crist stepped in and did the right thing by pardoning Paey. But the executive clemency process can never prevent the number of injustices that trial court judges could if they had retained traditional sentencing discretion. Our system has been set up by the legislature so that judges can easily increase prison sentences, but any departure downward is difficult.
Shifting Power from the Judiciary to the Executive Branch Violates the Constitution
This recent shift in power from the judiciary to the executive was described by Judge Winifred Sharp of the Fifth DCA as unconstitutional.36 She argued in dissent in two cases that the Prison Releasee Reoffender Act “appears to me to violate the provisions in the state and federal constitutions which require separation of powers between the executive, legislative and judicial branches of government.”37 Judge Sharp explained that the legislature had taken the power of sentencing from judges and given it to the executive. “The judicial branch is shut out of the process entirely,” she wrote. “That is contrary to the traditional role played by the courts in sentencing, a role which in my view, is constitutionally mandated.”38
Conclusion: Save Money, Return the Power of Sentencing Mercy to the Bench
In these troubled financial times, solutions must be sought. Public defender offices are suing to refuse cases; state attorney’s offices are enacting hiring freezes and mandatory furloughs. This depletes our criminal justice system by driving competent and experienced practitioners on both sides from their positions due to financial pressures and the pressing burden of student loans. The courts themselves are under enormous pressure due to the financial problems with recent cuts.
Professor Bowman echoed the concerns of Judge Sharp when he aptly wrote in the Stanford Law Review that:
Careful analysis of the twenty-year-old federal experiment with structured sentencing suggests one overriding conclusion about the design of sentencing systems: a sentencing system that sensibly distributes power — both the power to make sentencing rules and the power to determine sentences in particular cases — among the institutional sentencing actors is likely to work pretty well. Conversely, a system that concentrates sentencing power disproportionately in the hands of one or even two institutional sentencing actors is headed for trouble. The federal sentencing experience of the past three decades is a case study in Madisonian political theory. It demonstrates that a governmental system that fails to erect a properly conceived set of checks and balances against the inevitable tendency of political actors toward personal and institutional self-aggrandizement is prone to degenerate into a despotism of the most powerful branch or, as Madison particularly feared, into an alliance of two branches against the third.39
Florida also sees this despotism of the executive and the legislative branches subjugating the judicial branch. As Professor Bowman recognized in the federal system, the alliance between the legislative and executive has created a time machine in Florida: “Not an H.G. Wells time machine that travels in the fourth dimension, but a machine whose only product is incarcerative time.”40 Florida cannot afford such a time machine.
Our current approach to criminal justice sentencing is not only fiscally irresponsible — it is morally questionable. This approach will result in a continuing, chronic economic crisis. Even to the extent that judges are imperfect and make errors, the argument that prosecutors will do better when they alone possess the power runs contrary to the founding fathers’ intentions. Our country was founded on the idea that separation of powers in government would protect the people. The idea is that the ambitions of each branch will check and balance the ambitions of the other branches.
Why should judges be so abhorred that the legislature can decide that judges shall no longer be trusted to make the important criminal sentencing decisions that they’ve been making for centuries? Judicial power to check the executive and legislative branches is a uniquely American tradition that has been eroded greatly in recent years in an experiment that has abjectly failed. The best solution to Florida’s increasing need for money to build and operate more prisons is to return parity to the judicial branch so that it can operate equally with the executive and legislative branches, particularly on the key issue of criminal sentencing.
1 David M. Walker, Memo to U.S.: We’re tapped out, Medicare, Social Security and other programs cannot be sustained without major reforms; the nation’s fiscal well-being is at risk, Milwaukee Journal Sentinel, July 12, 2008, available at www.jsonline.com/story/index.aspx?id’771645.
2 Pew Charitable Trusts, Public Safety Performance Project, One in 100: Behind Bars in America 2008 at 3, available at www.pewcenteronthestates.org/uploadedFiles/One%20in%20100.pdf (“Three decades of growth in America’s prison population has quietly nudged the nation across a sobering threshold: for the first time, more than one in every 100 adults is now confined in an American jail or prison.”). The United States has a 750 per capita prison population per 100,000. In comparison, England has 148; Spain has 147; Germany has 83; and Italy has 67. Id. at 35.
3 Id. at 9 (“For policy makers keen on understanding the dynamics of prison growth, Florida serves as a compelling case. Between 1993 and 2007, the state’s inmate population has increased from 53,000 to over 97,000. While crime and a growing resident population play a role, most of the growth, analysts agree, stemmed from a host of correctional policies and practices adopted by the state.”).
4 Id. at 10.
5 Id. at 11.
6 Florida Department of Corrections, Statistics in Brief September 2008, Inmate Cost Per Day, www.dc.state.fl.us/pub/statsbrief/cost.html.
7 Pew Charitable Trusts, Public Safety Performance Project, One in 100: Behind Bars in America 2008 at 14, 30.
8 Id. at 16.
9 Id. at 33.
10 Id. at 9.
11 See, e.g., Frank O. Bowman, Mr. Madison Meets a Time Machine: The Political Science of Federal Sentencing Reform, 58 Stan. L. Rev. 235, 248 (2005) (“The combination of complex [g]uidelines overlaid on a system of statutory minimum mandatories and fact-based enhancements has turned prosecutors into primary decisionmakers whose choices can, to a far greater extent than was ever before possible, unilaterally constrain the judge’s discretion.”).
12 See, e.g., Gary Blankenship, Cutbacks Play Havoc with the Criminal Justice System, Florida Bar News, October 15, 2008; and Jan Pudlow, Should Floridians Care About Court System Funding?, Florida Bar News, October 15, 2008, at 1.
13 Anglo-Saxon England had two trial methods: compurgation, where 12 juratores (those sworn) evaluated a case using their knowledge of the disputants and the alleged offenses; and ordeal, such as ordeal by hot water/stone, by consecrated bread, or by cold water. One proved innocence in these ordeals by either having one’s hand heal cleanly, by being able to swallow a piece of consecrated bread, or by being able to sink into water to the depth of a knot tied in a rope the length of one’s hair. John Briggs, Christopher Harrison, Angus McInnes and David Vincent, Crime and Punishment in England: An Introductory History 3-5 (1996).
14 Id.
15 More presciently noted a critique levied against executing rapists: Society’s interest in encouraging rapists to become murderers because rational rapists would understand that there could be no additional punishment for eliminating the rape victim as a witness.
16 Sir Thomas More, Utopia, Book II: of Their Slaves, and of Their Marriages, available at oregonstate.edu/instruct/phl302/texts/more/utopia-slaves.html (“For the most part, slavery is the punishment even of the greatest crimes; for as that is no less terrible to the criminals themselves than death, so they think that preserving them in a state of servitude is more for the interest of the commonwealth than killing them; since as their labor is a greater benefit to the public than their death could be, so the sight of their misery is a more lasting terror to other men than that which would be given by their death.”).
17 Briggs, et al., Crime and Punishment in England: An Introductory History at 50 (1996).
18 At which point Australia became the preferred destination.
19 See William H. Burgess, III, Overview of Sentencing in Florida. Structured Sentencing, Guidelines, and the Criminal Punishment Code, 16 Fla. Prac. Sentencing 1:57 (2008).
20 Id.
21 In Owens v. State, 316 So. 2d 537 (Fla. 1975) (“In presenting materials and arguments relative to modern penology’s approach to the rehabilitation of criminals, appellant has really asked us to breach the separation of constitutional powers by usurping the acknowledged legislative function of prescribing punishments for crimes.”).
22 Akin to the current federal criminal sentencing system.
23 Fla. Stat. §921.0016 (4) (2008).
24 See Burgess, 16 Fla. Prac. Sentencing at 6:39. Alternatives to, and mitigation of, Criminal Punishment Code sentencing; downward departure from the presumptive minimum calculated sentence; limits on sentence mitigation.
25 See Wanda Ellen Wakefield, Judge’s participation in plea bargaining negotiations as rendering accused’s guilty plea involuntary, 10 A.L.R.4th 689 (2008) (citing, State v. Warner, 762 So. 2d 507 (Fla. 2000) (Judicial participation is permissible in the plea bargaining process at the request of a party, but it must be limited to minimize the potential coercive effect on the defendant, to retain the function of the judge as a neutral arbiter, and to preserve the public perception of the judge as an impartial dispenser of justice.)).
26 See, e.g., Bowman, Mr. Madison Meets a Time Machine: The Political Science of Federal Sentencing Reform, 58 Stan. L. Rev. at 246 (2005) (“First, the federal sentencing rulemaking power has become a one-way upward ratchet in which the sentences nominally required by the Guidelines are raised easily and often and lowered only rarely and with the greatest difficulty.”).
27 State v. Harvey, 909 So. 2d 989, 990 (Fla. 5th D.C.A. 2005) (defendant’s suspended sentence conditioned on completion of inpatient treatment at drug rehabilitation facility was not functional equivalent of incarceration, in violation of statutes forbidding downward departure of a sentence due to a defendant’s substance addiction).
28 All burglary of dwelling convicts will score prison under the code regardless of prior criminal history.
29 Robinson v. State of California, 370 U.S. 660, 667 (1962) (invalidating a state statute for making it a crime to “be addicted to the use of narcotics” because this inflicts cruel and unusual punishment).
30 State v. Thomas, 516 So. 2d 1058 (Fla. 3d D.C.A. 1987); State v. Arvinger, 751 So. 2d 74 (Fla. 5th D.C.A. 1999) (citing, Fla. Stat. §921.0016(i), and State v. Collins, 482 So. 2d 388 (Fla. 5th D.C.A. 1985)).
31 Fla. Stat. §921.0016 (j).
32 Federal prosecutors lack this power for downward departure. Judge John Gleeson, The Sentencing Commission and Prosecutorial Discretion: The Role of the Courts in Policing Sentence Bargains, 36 Hofstra L. Rev. 639 (2008) (“My topic is an important defect in the United States Sentencing Guidelines: their attempt to withhold from federal prosecutors the power to enter into sentence bargains pursuant to Rule 11(c)(1)(C) of the Federal Rules of Criminal Procedure.”).
33 Richard Raeke, Third Trial Ends in 15 Guilty Verdicts, St. Petersburg Times, Mar 6, 2004, available at www.painreliefnetwork.org/prn/third-trial-ends-in-15-guilty-verdicts.php.
34 But the weight of the pills was aggregated despite the fact the pill was only partially narcotic and mostly legal medicine. The current state of the law means that if a person takes a pound of sugar and mixes in a small amount of cocaine, one can reach trafficking for possessing a pound of cocaine if the cocaine can be tested in this pound of sugar.
35 Richard Raeke, Drug Case Yields Sympathy, Sentence, St. Petersburg Times, April 17, 2004, available at www.sptimes.com/2004/04/17/news_pf/Pasco/Drug_case_yields_symp.shtml.
36 Lookadoo v. State, 737 So. 2d 637 (Fla. 5th D.C.A. 1999); Gray v. State, 742 So. 2d 805 (Fla. 5th D.C.A. 1999).
37 Lookadoo, 737 So. 2d at 603; Gray, 742 So. 2d at 807.
38 Id. (“Sentencing is traditionally the function of the judiciary. The statute here completely removes the trial judge from the discretionary sentencing function and places it in the hands of the executive branch, the attorney general, or the victim. This violates the constitutional division between the executive and judicial branches of government. I can find no provision for judicial discretion in the statute. It requires the court to determine whether the prosecution has proven by a preponderance of the evidence that a defendant meets the statutory criteria for imposition of the longer sentence ( i.e., that he or she has committed a certain specified kind of crime within three years after being released from prison). Based on a plain reading of the statute, once statutory criteria is established, the court must impose the mandatory sentence, whether it wants to or not.”) (citations omitted).
39 Bowman, Mr. Madison Meets a Time Machine: The Political Science of Federal Sentencing Reform, 58 Stan. L. Rev. at 236 (2005) (footnotes omitted).
40 Id.
Aaron M. Clemens is an assistant public defender in Florida’s 15th Judicial Circuit. He received his J.D. from Georgetown University Law Center and a B.A. in political science from the University of Nevada, Las Vegas.
Hale R. Stancil is a circuit judge in Florida’s Fifth Judicial Circuit. He received his J.D. from Stetson University and a B.A. in business administration from the University of Florida.
The views expressed in this article are solely the authors’ and are not attributable to any affiliated party.
The column is submitted on behalf of the Criminal Law Section, Donnie Murrell, chair, and Georgina Jimenez-Orosa, editor.
