Post Date: May 16, 2014
The 2014 Florida legislative session was in some respects the best session for sentencing reform in recent memory. In other ways, the legislature could have done some things better. Below is a round-up of bills that affected sentencing laws, and how each fared.
HB 89/SB 448, the “Threatened Use of Force Act” by Representative Neil Combee and Senator Greg Evers, was tremendously important for sentencing reform and a top priority for FAMM. The bill provides criminal immunity for the threatened use of force (which includes “warning shots” like those in the cases of Lee Wollard, Erik Weyant, Ronald Thompson, and Marissa Alexander) in circumstances where the actual use of force would have been justified. Further, the bill provides that judges may depart from otherwise applicable mandatory minimum sentences in certain aggravated assault cases. It’s very likely that none of our profile cases would have been sentenced to 20 years in prison if HB 89 were law at the time each was sentenced; the importance of this bill to sentencing reform generally cannot be overstated. This bill passed 93-24 in the House, 32-7 in the Senate, and is currently waiting on the Governor’s signature.
HB 99/SB 360, by Representative Katie Edwards and Senator Rob Bradley, reforms Florida’s prescription drug trafficking sentencing laws. Specifically, this bill raises the trafficking threshold weights for Oxycodone and hydrocodone (thus restoring judicial discretion in hydrocodone/Oxycodone cases involving weights below 14 grams and 7 grams, respectively), and recalibrates sentences for trafficking in hydrocodone and Oxycodone. This issue has been another priority for FAMM, as Florida’s sentencing laws for “trafficking” in prescription painkillers are completely indefensible. This bill takes a major step forward to restoring sanity to those laws. It passed 113-2 in the House and 37-0 in the Senate. The bill is currently waiting on the Governor’s signature.
NOTE: The reforms in both HB 89 and SB 360 are not retroactive.
Last summer, the Sun-Sentinel ran a lengthy investigative report titled “Sex Predators Unleashed,” which detailed how hundreds of sex offenders had been released from civil commitment only to re-offend. After that report ran, Senate President Don Gaetz promised that reforming sex offender laws would be the legislature’s top priority this year. He fulfilled that promise when the legislature passed an overhaul of sex offender laws during the first week of session.
The Sun-Sentinel investigation focused on the failures of Florida’s civil commitment process. None of the offenders mentioned in the piece were free because of lenient sentences given by judges, and none of the solutions offered by any of the experts in the piece included anything to do with sentencing. Nevertheless, the legislature passed HB 7027/SB 526 (117-0 in the House; 40-0 in the Senate) which, among other items, increased the current 25-year mandatory minimum for “dangerous sexual felony offenders” to 50 years.
Like many mandatory minimums, the move is more symbolic than substantive, but it is still troubling the legislature would ignore the evidence that long mandatory minimums like the one in this bill might actually be counterproductive in the prosecution of sex predators. As a result, while the bill might have made for a good press conference, it is far less clear that it makes for good public policy.
Governor Scott signed HB 7027/SB 526, and the new law took effect October 1, 2014.
Over the past couple of years, the legislature has made it a priority to crack down on “human trafficking.” Last year, the legislature passed what was supposed to be a comprehensive legislative package to stop the practice, and we were fortunate that the bill did not include mandatory minimums. However, like many other high-profile crimes, the siren song of mandatory minimums proved too enticing for the legislature this year.
HB 989/SB 768 amends 796.05, F.S., which makes it a crime for “any person with reasonable belief or knowing another person is engaged in prostitution to live or derive support or maintenance in whole or in part from what is believed to be the earnings or proceeds of such person’s prostitution.” Specifically, the bill adds a “mandatory minimum term of imprisonment of 10 years” for a “third or subsequent offense.”
Obviously the bill is intended to crack down on pimps and others who profit from prostitution with the goal of helping their victims. However, the broad language of the statute is troubling, and could lead to unintended consequences. For instance, under the statute, a prostitute who accepts a loan from another prostitute to pay rent or buy food (or escape a human trafficker) could potentially face ten years in prison.
HB 989/SB 768 passed the House 116-0 and passed the Senate 38-0. Governor Scott signed the bill and it took effect October 1, 2014.
Dubbed the “Aaron Cohen Life Protection Act,” HB 183/SB 102 aimed to fix what supporters considered a “loophole” in Florida law. Current law provides for a mandatory minimum of four years for DUI manslaughter. However, there is no mandatory minimum for leaving the scene of an accident that causes death. (Current law does provide a two-year mandatory minimum for any person who willfully leaves the scene of an accident that causes death if that person is DUI.) The result, supporters of this bill argued, is that the law provides an incentive for drunk drivers to leave the scene of accidents (then sober up to avoid the DUI manslaughter mandatory minimum), rather than stay and provide aid to victims.
To “fix” this loophole, the original bill imposed the following mandatory minimums for leaving the scene of an accident:
This is the kind of bill that typically sails through the legislature without any kind of resistance. Fortunately, some sense of sanity prevailed, and this bill was substantially modified before it passed. In its final form, HB 183/SB 102 provides for a four-year mandatory minimum for leaving the scene of an accident that causes death. Importantly, however, the bill also provides for a broad “safety valve” that allows judges to depart from that mandatory minimum in cases where the defendant was not driving under the influence, and where the court “finds that a factor, consideration, or circumstance clearly demonstrates that imposing a mandatory minimum term of imprisonment would constitute or result in an injustice.”
Adding a new mandatory minimum to the books is never a good idea. Nevertheless, the final bill is a significant improvement over the originally filed bill. HB 183/SB 102 passed the House 118-0, and passed the Senate 39-0.Governor Scott signed the bill and it took effect July 1, 2014.
A bill to reform juvenile sentencing, HB 7035/SB 384 aimed to bring Florida law into conformity with the U.S. Supreme Court’s 2012 decision in Miller v. Alabama, which held that mandatory sentences of life without parole are unconstitutional for juvenile offenders.
I asked Natalie Kato of Human Rights Watch (who did all of the heavy lifting advocacy on this tough issue) to summarize the bill. Here’s what she wrote:
The original bill filed by [Senator] Bradley created a 35-year mandatory minimum sentence without any option for review for a youth convicted of first degree murder. For all other youth convicted of murder (second-degree, manslaughter eligible for a life sentence, etc.), the bill created the presumption of a life sentence, but the judge could impose a lower sentence after considering a list of enumerated factors. For non-homicide crimes, the youth was eligible for a single review of their sentence after 25 years, but there was no mandatory minimum.
The final version of the bill grants a single sentence review to ALL youth convicted of murder, and two sentence reviews to all youth convicted of a non-homicide crime who are sentenced to more than 20 years. The length of time that a youth must serve before their sentence review depends on the severity of the crime; a first degree murder or second degree murder conviction is eligible for a review after 25 years, a felony murder conviction is after 15 years. Non-homicide crimes get two reviews, after 20 years and 30 years.
Since the Miller decision, states across the country have struggled to bring their statutes into conformity with what the constitution requires. A similar bill last year failed before a full vote was taken. And while the bill that ultimately passed is not optimal, it could have been much worse.
The award for the worst sentencing bill passed by the legislature this year has to go to HB 47/SB 194. This bill creates a mandatory minimum prison sentence for the illegal harvest of “spiny lobster.”
At a time when the federal government and most states are looking to rein in “overcriminalization,” HB 47/SB 194 does the opposite. Specifically, the bill criminalizes “possession of spiny lobster during the closed season,” and “while on the water . . . possession of spiny lobster tails that have been wrung or separated from the body.”
As far as Florida’s mandatory minimums go, the one in HB 47/SB 194 would be among the least pernicious. The mandatory minimum provisions don’t kick in until the “fourth or subsequent violation” (or the third if it’s within one year of the second), and the minimum prison sentence established in the bill is “just” one year. So, it isn’t really the sentence itself that makes HB 47/SB 194 the worst sentencing bill of the year; it’s the underlying premise of the bill. It’s clear that the authors of the bill included the mandatory minimum as a signal that the legislature is taking the issue seriously. (Which also explains why the bill contains language like, “It is a major violation . . .”) In that respect, the bill is more symbolic than substantive, and rooted more in politics than policy.
But this kind of thing – using sentencing laws as a way of signaling disapproval of a behavior – is what we should be moving away from, not embracing. It’s become an axiom among “smart on crime” conservatives that we should reserve prison space for “people we’re afraid of, not people we’re mad at.” There’s a lot of wisdom in that phrase, and HB 47/SB 194 represents exactly the opposite philosophy. Worse, the bill’s sponsors wouldn’t even entertain amending the bill to add a safety valve to cover potential unintended consequences.
For all those reasons, HB 47/SB 194 has the ignoble distinction of being the very worst sentencing bill the legislature passed this year. The bill passed 117-0 in the House, and 38-0 in the Senate. It was signed by Governor Scott and took effect July 1, 2014.
You don’t become the state with the worst sentencing laws in the country by passing too many good sentencing bills, and unfortunately the legislature continued that embarrassing trend by killing some very good bills. Let’s take a look at some good sentencing bills that died this year.
Senators Arthenia Joyner and Jeff Clemens filed SB 328, which would have created a safety valve for certain drug offenders. Specifically, the bill would have authorized a downward departure from an otherwise applicable three-year mandatory minimum for “trafficking” in “cocaine, certain opiates or opioids, phencyclidine, amphetamine, methamphetamine, flunitrazepam, phenethylamines, and lysergic acid diethylamide (LSD).”
The downward departure exception in SB 328 was very narrowly tailored. Among other limitations, the safety valve applied only to defendants who 1) had not been previously convicted of selling or “trafficking” in illegal drugs; 2) possessed the relevant drugs without intent to sell them; 3) did not use a minor to obtain the drugs; 4) did not possess or threaten to use a firearm; and 5) were “amenable to substance abuse treatment if the court determines that he or she is in need of such treatment.”
No reasonable person believes prison is the only appropriate sentence for low-level, first-time drug offenders. Further, the Criminal Justice Impact Conference found that the bill would have “resulted in 456 fewer prison beds by FY 2018-19 with a projected cost savings of $11,003,567 in operating costs and $20,512,926 in fixed capital outlay costs.”
Nevertheless, although the bill passed the Senate Criminal Justice Committee 4-3 – do yourself a favor and watch Chairman Evers’ masterful questioning of State Attorney Dave Aronberg, who opposed the bill on behalf of the Florida Prosecuting Attorneys Association, but admitted that judges in his circuit could be trusted to impose appropriate sentences – it was not heard in any other Senate committee.
HB 247, sponsored by Rep. Shevrin Jones, was similar to SB 328. While SB 328 (as filed) created an exception to drug trafficking mandatory minimums and then created exceptions to that exception, HB 247 would have made mandatory minimum sentences (for the lowest-level “trafficking” offenses) applicable only upon a second or subsequent conviction for “trafficking” in cocaine, heroin/opiates, PCP, amphetamines, Rohypnol, Phenethylamines, and LSD.
Like SB 328, the idea behind HB 247 is simple and obviously correct: prison is simply not the only appropriate sentence for first-time drug offenders. Nevertheless, this completely reasonable bill did not receive a hearing in the House. There was no Senate companion bill. (NOTE: The Senate Criminal Justice Subcommittee amended SB 328 to conform to the language of HB 247 before voting on the bill.)
These bills, by Representatives Antone and Rogers and Senators Bullard and Clemens, would have allowed judges to depart from the mandatory minimum sentences under 10-20-Life “if the unique circumstances of the case indicate that the offender does not pose a threat to the public and the minimum term does not fulfill the goals of punishment and other sentencing criteria.” The factors the bill required a judge to consider included: “1. The defendant’s history as a survivor of domestic violence; 2. The defendant’s mental health; and 3. Information presented at trial or sentencing which indicates that imposing the mandatory minimum sentence would frustrate justice or the original legislative intent of this section.”
These bills created a broad safety valve to 10-20-Life. That safety valve would reduce the likelihood of further unintended consequences of Florida’s mandatory minimum gun sentencing laws, and restore some sanity to that process. They were not heard in either chamber.
HB 103/SB 112, by Representative Mia Jones and Senators Joyner and Clemens was another attempt at reforming Florida’s 10-20-Life law. This bill would have allowed sentencing courts to depart from an otherwise applicable mandatory minimum “that the totality of the circumstances involved in the offense do not reasonably justify the imposition of a mandatory minimum term.” Among the “circumstances” a court could use to justify the downward departure were: 1. The person’s actions did not result in injury to another person; 2. the person’s actions were a response to exigent circumstances; 3. the person does not have a prior felony conviction involving violence; 4. the victim was an initiator, willing participant, aggressor, or provoker of the incident. Like HB 1301/HB 967/SB 432, HB 103/SB 112 would have created a broad safety valve for 10-20-Life cases and restored a considerable amount of discretion to judges in gun cases. Like the other 10-20-Life reform bills, this bill would have been an enormous improvement over the status quo.
As we’ve seen, the legislature passed some pretty bad sentencing bills this year. Thankfully, however, they didn’t pass all of the bad sentencing bills filed. A couple slipped through the cracks and our state is better for it.
This bill, by Representative Hutson and Senator Abruzzo, would havecreated a mandatory minimum prison sentence of 30 months – why not 29 or 31? Who knows?! – for “aggravated animal cruelty,” which is committed when “A person … intentionally commits an act to any animal, or a person who owns or has the custody or control of any animal and fails to act, which results in the cruel death, or excessive or repeated infliction of unnecessary pain or suffering, or causes the same to be done.”
The premise of this bill seems to be that there is a category of people who are sick and twisted enough to intentionally cause the “cruel death” or the “excessive or repeated infliction of unnecessary pain or suffering” of an animal, and who are not presently deterred by the prospect of spending five years in prison, but who would be deterred if 30 months of that sentence were guaranteed (as long as the defendant went to trial and didn’t accept a plea bargain for a lesser sentence and avoid the mandatory minimum altogether). I’d like to think that the implausibility of that premise was the reason the bill didn’t get a hearing in either chamber. In any event, a win’s a win and I’m just happy the legislature decided to keep this mandatory minimum off the books (for now).
Despite the fact that “Florida’s shark fishery operates almost exclusively in federal waters,” and the fact that “the FWC Division of Law Enforcement has issued eight citations for shark finning and seven citations for failing to land a shark in whole condition, which may or may not have included finning, since January 2009,” three Senate committees actually felt the problem of “shark finning” in Florida was so severe that the only way to combat the scourge was through mandatory minimum penalties. To the credit of the sponsors of the original bill, mandatory minimums were not part of the original bill; they were added by amendment at the first committee stop. And to the credit of the House of Representatives, those mandatory minimums were never added to the House companion bill. Fortunately, this bill – which would have tied for worst sentencing bill had it passed – died before receiving a full vote in the Senate. Score one for sanity!
By any metric, the 2014 legislative session was one of the best sessions for sentencing policy recently. Not only did the legislature restrict the application of 10-20-Life, but it also eliminated an entire category of drug “trafficking” and restored sentencing discretion in certain low-level prescription drug cases. And, while the legislature added new mandatory minimums to the books for the first time in several years, many of those changes (e.g., the 50-year mandatory minimum for certain sex predators) are more symbolic rather than substantive, and one included a broad safety valve, further underscoring what we hope is a new respect for judicial discretion in Tallahassee. All in all, FAMM members and supporters of sentencing reform should be very happy with the outcome of this session and the prospect for future reform.