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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.

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