As a member of the Florida Association of Criminal Defense Lawyers (FACDL), I often get e-mails about pending legislation that impacts to the criminal justice system. I wanted to pass along some of that information about Florida House Bill 159 that just passed out of the House Criminal Justice Committee by a vote of 8 to 5 on March 12, 2013.
The legislation is now pending in the House and Senate Judiciary Committees. Florida House Bill 159 was sponsored by Katie Edwards, is a freshman representative and recent law school graduate. The related bill in the Senate is
Florida Senate Bill 0420 which was introduced by Florida State
Senator Maria Lorts Sachs.
What's the Problem with the Minimum Mandatory Sentencing Scheme for Trafficking?
When a person is convicted of a crime punishable by a mandatory minimum sentence, the judge MUST sentence the person to at least the "minimum mandatory" term or to a higher sentence. In order words, any discretion to fashion a more reasonable sentence is taken away from the trial court.
A prescription for Vicodin may contain 10 milligrams of
hydrocodone and 500 millgrams of acetaminophen sold under the brand name
Tylenol. So if the defendant gets caught with a prescription bottle containing 90
pills, the total amount of the controlled substance is actually only 90
milligrams. But under Florida's statutory scheme, the prosecutor gets to use the aggregate weight of the pills which is
approximately 45 grams. So a bottle of Vicodin is treated the same as a bottle of pure heroin which carries with it a twenty-five year minimum
mandatory sentence in Florida State Prison.
Let's say a young woman becomes addicted to Vicodin after recovering from a serious car accident. The woman buys a bottle of the pills on the street because she can not longer get a prescription for the medication. Later that day, the woman is caught by the police with the bottle of Vicodin.
The woman possesses the bottle of Vicodin to feed her own habit and not because she intends to sell the pills to anyone else. Does this woman deserve to serve 25 years day for day in Florida State Prison for drug trafficking? Should the judge have the discretion to send the woman to drug court for treatment instead?
Under the current system, the judge has no discretion to impose a lighter sentence. Only the prosecutor can allow an escape from the 25 year minimum mandatory sentence. Maybe you trust the prosecutor with such power, but if that woman can't provide substantial assistance in setting up another addict for a trafficking offense like the one she got caught in, that woman may get the minimum mandatory.
Criteria for the Safety Valve Provisions
Under
Florida House Bill 159, if the defendant meets the following
criteria, the safety valve provision would allow the trial judge to depart below the minimum mandatory sentencing requirements of
Florida's drug trafficking penalties under Florida Statute Section
893.135.
The safety value provisions would only apply if all of the following are true:
- The drugs possessed were prescription drugs;
- The defendant does not have any prior felony conviction;
- The defendant does not have any prior conviction for a violent misdemeanor;
- The defendant did not have or use a firearm at the time of the arrest;
- The amount of pills possessed evidence that it was for personal use;
- There was no intent to distribute the drugs;
- The defendant has a history of alcohol and substance abuse;
- The person has never been previously granted a "safety value" departure.
What? It Cost Money to Warehouse These Drug Addicts in Florida State Prison?
Did you know that warehousing non-violent drug addicts in Florida State Prison for decades actually cost money? Not only does it cost money to warehouse non-violent addicts in a cage at a Florida State Prison for decades, it also diverts important law enforcement resources away from real crimes and dangerous criminals. Resources are also wasted in the public defenders office as these attorneys fight for some semblance of justice under Florida's minimum mandatory provisions.
An entire industry in the law enforcement community has been created that wants to maintain the status quo of warehousing non-violent drug offenders. After all, law enforcement agencies love being able to find a low level addict with a bottle of prescription pills and call it a "trafficking" arrest. The war on drugs is so futile, that these officers have no real incentive to reach for the higher hanging fruit.
The current system helps their "crime statistics" look better. It helps justify their bloated budgets. It makes the public think the money is not being wasted. The only good thing about a budget crisis is that it forces the state and its citizens to really look at all the waste and injustice built into the current system.
The taxpayers of this state should rally behind this legislation. If you feel like I do about it, leave a comment on this post, send a letter to your representative in the Florida Legislature (especially if they serve on the judicial committee), or give their office a call.
What Does Florida House Bill 159 Do?
Florida House Bill 159 authorizes the trial court judge to depart from the minimum mandatory sentence (in some limited cases where the safety valve applies) and diverts the defendant
to drug court and treatment. Although the legislation doesn't go far enough, it does provide a safety value in the most obvious cases where imposing the minimum mandatory sentence would be absurd.
Make no mistake about it, drug court and treatment is FAR cheaper and more effective than putting an addict in a cage in Florida State Prison for decades. The legislation is necessary because Florida law prevents trial courts from going below stiff minimum mandatory sentences in "trafficking" cases.
Anyone who practices in the criminal justice system in Florida knows that many of these "trafficking cases" involve someone found with a bottle of prescription pills who is addicted to the pain medication. The term "trafficking" is misleading because it is based solely on the amount of the substance found, not any intent to sell it. The weight of the substance is what elevates the crime to something higher than mere possession of a controlled substance.
The second problem under Florida law, is that the entire pill or bottle of pills is weighted for the purpose of determining whether it is a "trafficking" amount instead of just determining the weight of the controlled substance (which is easy to determine). So having a bottle of pills is often treated the same as having a bottle of pure cocaine or heroin.
Florida Citizens who are Addicted to Prescription Drugs are Currently Being Sentenced under Mandatory Minimums
Individuals who are addicted to prescription drugs are being sentenced under harsh mandatory minimum sentences. The assistant public defenders throughout this state are often given the difficult job of convincing the prosecutor to exercise their discretion. In exchange, prosecutors and law enforcement officers often demand "substantial assistance" in setting up drug dealers or other addicts.
Although drug dealers have no trouble setting up other people, a typical addict often has few connections in the underground drug trade. Drug dealers get big breaks for providing "substantial assistance" while addicts get minimum mandatory sentences in Florida State Prison. Under the current system, judges can only shake their head in disbelief as they impose the required statutory maximum system.
Prosecutors and law enforcement officers can not be trusted as the sole source for providing mercy under the harsh minimum mandatory sentencing guidelines
Take Action
The bills are now in the House and Senate Judiciary Committees. The public needs to take action so that this law that would allow judges discretion in sentencing drug offenders is passed. Reach out to your State Senator or House Member if they are on the judiciary committee and ask them to support the legislation.
Leave a comment below if you have an opinion how whether the legislation would be "smart of crime."
