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Senate considers allowing judges more sentencing discretion

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Sen. Jeff BrandesThe Senate Judiciary Committee voted overwhelmingly November 6 to give judges more leeway to depart from minimum mandatory sentences for certain non-violent drug trafficking crimes.

The measure, SB 468, is sponsored by Sen. Jeff Brandes, R-St. Petersburg. A more sweeping reform measure that included judicial safety valves stalled before reaching the same committee last year.

Brandes told the committee that judges throughout Florida are asking for more discretion.

“Today, judges’ hands are tied,” Brandes said. “There are stories of judges with tears in their eyes, handing out sentences that they know are wrong. . . but they have no choice.”

The measure would allow judges to depart from minimum mandatory sentences in certain drug trafficking cases only when the defendant did not “engage in a continuing criminal enterprise,” did not use a weapon or threaten violence, or cause death or serious bodily injury.

The committee approved the measure 5-1.

Nancy Daniels, a legislative consultant for the Florida Public Defender Association, told the committee that minimum mandatory sentences apply to 47 different drug offenses, and taxpayers — as well as defendants — are paying too high a price.

She recalled defending a 64-year-old dialysis patient who went to prison after police pulled him over for a traffic violation and found a small stash of pain pills he borrowed from a sibling.

“The state had to house him and pay for his dialysis for three years,” Daniels said.

But some committee members expressed reservations.

Sen. Travis Hutson, R-Palm Coast, was concerned that the bill would allow judges to depart in cases that involved the most dangerous narcotics.

“There are some drugs on here like Fentanyl that are the worst of the worst,” Hutson said. “I think we need to have a healthier discussion.”

Hutson cast the only negative vote.

Sen. Dennis Baxley, R-Ocala, said he was worried that the legislation would encourage leniency.

“I don’t like minimum mandatories, but we went to them because we were just letting too many people go,” Baxley said. “I’m voting for it just to give judges a chance.”

Criminal reform measures have won bi-partisan support and the endorsement of diverse groups, from Americans for Prosperity to the ACLU.

Representatives from the Florida Prosecuting Attorneys Association and the Florida Sheriffs Association declined to speak against the legislation, but told the committee they remain opposed.

On November 12, the Senate Criminal Justice Committee approved a measure by Sen. Rob Bradley, R-Orange Park, that would cap sentences for purchase or possession of less than two grams of a controlled substance — excluding fentanyl — at 12 months.

In addition to directing low-level offenders away from state prisons, SB 346 would also allow judges to depart from minimum mandatory sentences, under limited circumstances, for drug trafficking crimes that carry up to a 25-year mandatory sentence.

Recent criminal justice reforms are a step in the right direction, Bradley said, “but to really make an impact, we need to go further.”

Bradley’s bill would open judicial safety valves only for non-violent cases and ones that don’t involve a continuing criminal enterprise. Defendants with prior histories of forceable felonies would not be eligible.

Bradley cited a study by the Legislature’s Office of Program Policy Analysis and Government Accountability that shows minimum mandatories can lead to higher rates of recidivism.

“We’re actually making people more likely to commit further crimes,” Bradley said. “That’s the definition of insanity.”

Gary Hester, a legislative consultant for the Florida Police Chiefs Association, said the measure would be too lenient on drug traffickers who are caught with substantial amounts of drugs, but not large enough to warrant a 25-year mandatory.

“We do not support incarcerating people that are medically addicted and have small amounts,” Hester said.

Bradley’s bill also contains provisions that would require law enforcement agencies to record custodial interviews of suspects. Another provision would make it easier for wrongfully incarcerated inmates to qualify for state compensation.

Bradley’s bill has two more committee stops before reaching the Senate floor.

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