Nov 292011

Minimum mandatory sentences for any criminal offense are an aberration of the separation of powers. A mandatory sentence is an established mandatory for a conviction of a certain crime. For example, having more than 100 grams of cocaine carries with it a minimum 15 year prison sentence in Florida. The judge, despite having reservations about imposing such a high prison sentence, has no recourse other than to imprison for 15 years. While there are limited reasons to deviate downward, even those have been have been further limited by the legislature.

Mandatory sentences involve politicians, most of which have no direct knowledge of the criminal justice system, mandating to those who are involved with the system. Politicians, who are inherently looking to get reelected, will always be tough on crime. No politician has ever been voted out of office by being tough on crime. A universal application of punishment without regard for the facts surrounding a particular matter, leads to perverted results. Even those generally considered educated and have influence, like newspaper editorials, can get swept up in the tough on crime stance. One of the issues addressed in a recent editorial is the fact that innocent parties get swept up in the minimum mandatory scheme and face strict sentencing guidelines.

A recent editorial concerning this issue reads in part, “We’d like to think most prosecutors would not file against a person who can convince them of their lack of knowledge of the crime.” It is without doubt that the editorial board has, at some point in their career, read the U.S. Constitution (or they have at least heard of it). The 5th Amendment reads, ” . . .nor shall be compelled in any criminal case to be a witness against himself. . .” which we recognize as the right to remain silent. The editorial comment requires, in direct violation of the Bill of Rights, that the accused convince the prosecutor of their lack of knowledge. Even if we were to forget the Constitution, as the editors think is proper, what would be enough to “convince?” Would an affidavit be enough? Video? Audio? What happens if the prosecutor does not believe the accused had no knowledge?

The editorial continues, “But it would be tough to persuade a jury to convict someone — such as the roommate or the mailman — with a reasonable explanation.” Without rehashing the issue of forcing the accused to testify with the, “reasonable explanation” let’s evaluate how appropriate it is that a mailman: gets charged with a minimum mandatory prison sentence crime; goes through the criminal process; hires a lawyer (an expensive proposition when considering a minimum mandatory prison sentence); goes through a trial; and then gets found not guilty. What a pleasure for that mailman the process must have been. He’s is fortunate to experience the system and have a wonderful story to tell. The “not guilty” mailman can tell the story of his acquittal along with the story of his vacation to the Grand Canyon.

One could argue that that would seldom happen. But once it too many times. Benjamin Franklin wrote, “That it is better that 100 guilty persons should escape than that one innocent person should suffer.” The Constitution incorporates that concept.

As an example, let’s look at the sexual battery crimes before the “Romeo & Juliet” law. In those cases an 18 year old who had sexual intercourse with his 17 year old girlfriend could be charged criminally, faced mandatory minimum prison sentences, was designated a sexual predator for the rest of his life. That abrogation of the law led to the “Romeo & Juliet” laws to address those issues. However, there are hundreds and hundreds of “sexual predators” in Florida who where charged and convicted of having sex with their girlfriend who was 6 months younger than them. Doubt it? Look up Anthony Croce’s case, or Jerry Ray Cromer who were both teenagers when they were labeled sexual predators for having sex with their girlfriends. Here is a quote from an article, “[Croce] was 17 when he started having sex with his 15-year-old girlfriend, but her mother pressed charges after he turned 18. Croce pleaded no contest to lewd and lascivious behavior, which required him to register as a sex offender. It ruined his life.” The inability to deviate from the mandatory, require the judge to label Croce as a sexual predator.

We have a separation of powers for a reason. Allowing the legislative to intrude on the judicial circumvents that separation. One would think that the editors of a newspaper, who constantly invoke the 1st amendment, would see fit to defend those protected by the other amendments. That is, apparently, not the case. It may not be long before the legislature decides that the 1st amendment is too broad.

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