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Wednesday, December 28, 2011

Sex Offender: The New Death Sentence Label

When we hear the term sex offender, we typically envision a predator: someone who lurks in dark shadows and rapes unsuspecting victims, or who molests and sexually abuses the vulnerable.  But here's the truth: a lot of people labeled as sex offenders in Florida are not bad or sick people.  They are just like you, me, or close friends/relatives.

All right, all right, calm down and put away your torches and pitchforks.  Allow me to explain.

People who have either pled or been found guilty of sexual battery or unlawful sexual activity with certain minors must register as sex offenders.  That doesn't sound too unreasonable, right?  But under Florida law, a person who is 24 years old is guilty of unlawful sexual activity if that person's partner is 17 years old and they are engaged in an vaginal, oral, or anal penetration with the other person's sex organ.  Mutual consent is irrelevant.  Yep, that's right, a 24 year old who has consentual oral sex with his/her 17 year old boyfriend/girlfriend is a sex offender in Florida.

Don't think those cases are prosecuted?  Think again.  All it takes is for someone who has a motive (like, say, Mom and Dad, who have never liked the older partner) or someone who has a duty to report (like a sex education teacher who finds out their student is sexually active with an older partner) to call the police.  And once the police are called, they have to make an arrest.  And once an arrest is made and that information is sent to the State Attorney's Office, good luck getting a prosecutor to drop a sex offender case.  Because, believe me, the State Attorney's Office is politically motivated by the very fact that the State Attorney is an elected position.  And there isn't a single State Attorney in Florida who wants a reporter to expose the fact that several sex offender charges were dropped by prosecutors in their office. It doesn't matter if the young couple are engaged to be married and have known each other for years, or that they are consenting to the activity, or that they love each other and are mature, intelligent people. The best you can hope for when an arrest in such a case has been made is that the prosecutor will allow the person to avoid prison time and to receive probation.

But even sex offender probation is different.  With the label of being a sex offender, you can't live in a lot of areas, you can't work in a lot of professions, and you can't move without updating the registry in that county.  Often times, you have to remain employed as a condition of probation.  Good luck getting someone to hire you once you have been labeled a sex offender.

Life becomes incredibly hard once you have that label.  You become the person all the neighbors hate.  You become the person no one will hire.  You become the person no landlord will rent out an apartment to.  It is a lifelong designation, and you will be hated and reviled by people who don't know the first thing about you.  And why?  Because you were 24 when you allowed your 17 year old girlfriend to perform oral sex on you.

Thursday, December 1, 2011

Minimum Mandatory Sentences...Or, Why The Legislature Thinks Discretion Is Evil

If you practice criminal defense long enough, you will inevitably end up with a case where your client is facing a minimum mandatory sentence.  In Florida, minimum mandatory sentences (or "min mans", as we call them) are sentences where you will serve that prison term day-for-day.  No early release.  No time off for good behavior.  No parole (for the record, Florida did away with parole many years ago).  The only way you will get out of custody before each of those days is served is if you die.

So, what's the big deal?  If you're facing a mandatory minimum sentence, then you did something horrible and deserve to be locked away for that amount of time, right?  Not so.  The truth is that Florida imposes mimimum mandatory sentences for a lot of crimes that don't necessarily merit those lengthy prison terms.

Here's an example: If you possess 4 grams or more of oxycodone or hydrocodone without a prescription (in your name), then you face a minimum mandatory sentence of 3 years in prison.  How much is 4 grams?  Depends on the size of the pills, but it's 20 pills if they are 200 milligrams each, or 8 pills if they are 500 milligrams each.  Makes you think twice before putting your mom's small bottle of pain pills in your purse to help you with that horrible toothache, doesn't it?

The worst part about minimum mandatory sentences is that they don't care about your prior record (or lack thereof).  You could be arrested for the first time in your entire life, and you will receive the mandatory minimum sentence if you are found guilty or plea to the offense.  Now, if you have an extensive criminal history, you may very well receive more than the mandatory minimum.  But otherwise, you prior record has zero effect on whether the mandatory minimum sentence will be imposed.

And what about the judge?  Sadly, the judge can't do a darn thing about it.  Mimum mandatory laws require that a judge sentence a defendant to at least the minimum mandatory term if the defendant either pleads to the charge or is found guilty at trial.

The only person who can waive the minimum mandatory sentence in the prosecutor, as part of a plea bargain.  Why the Florida legislature has left this modicum of discretion in the hands of prosecutors is beyond me.  Put it in the hands of young lawyers trying to make a name for themselves and probably burdened with the pressure of their office where supervisors want them to take a "hard line on crime"instead of the hands of a seasoned legal veteran who serves terms and takes an oath to be impartial and fair...

Sadly, hundreds (and perhaps thousands) of people plea to crimes they did not commit in exchange for lesser sentences because they know they will serve a minimum amount of mandatory prison if they are found guilty by 6 people they don't know from Adam, even if the judge listens to the case and is sympathetic to the defendant.