We all presume that the title of “judge” requires the exercise of some judgment. But when you consider the fact that our legislature requires judges to impose minimum mandatory sentences–on everything ranging from misdemeanor DUI, misdemeanor domestic violence battery, all the way up to trafficking cases–there’s often time little room for a judge to maneuver in one of the most important decisions a judge can make. Sentencing.
We taxpayers pay good money to our judges so that they can sort out real life human dramas. For example, what can a judge do with a defendant that (1) has a mental problem that requires special treatment, yet (2) the legislature’s score sheet “requires” that the judge impose a minimum mandatory prison sentence? The good news is that there is a tiny loophole in the sentencing law found in subsection 921.0026(2)(d). This subsection permits the judge to go below a mandatory sentence if the defendant requires specialized treatment for a mental disorder. Sounds easy, right? Not. In reality, this subsection is rarely used, because the burden is on the defendant to show that the needed treatment is not available at the Department of Corrections. Even though the subsection does not spell out such a requirement, our courts have interpreted the statute as requiring that “the defendant must also establish…that the Department of Corrections cannot provide the required ‘specialized treatment’.” Yikes. How do you prove this negative?
There is light at the end of this tunnel. The light comes from the case of State v. Chubbuck, 83 So.3d 918 (Fla. 4th DCA 2012). Harry Chubbuck violated his probation (vop) by testing positive for cocaine, and the state requested that the court impose a minimum sentence of 37.65 months in prison. You heard me. 37+ months for testing positive for cocaine on a VOP. Harry’s criminal defense attorney argued that the court should give him only the 97 or 98 days time already served in jail, because Harry is very sick.
Here’s Harry’s background, straight from the court record: “Chubbuck testified that he was in the United States Army between 1961 and 1971, where he served in Vietnam as a surgical technician on air ambulances during the Tet Offensive. During his time in the service, he was awarded a Bronze Star and a Silver Star, as well as 22 air medals, one air medal for each half hour of combat flight time. Chubbuck said that he was shot down four times in one day trying to retrieve a radio operator. He was undergoing treatment for Post-Traumatic Stress Disorder at a Veterans Administration hospital, which was helping his condition. Chubbuck also suffered from chronic obstructive pulmonary disease, “some sort of lower left ventricle problem,” and diabetes.” Id.
Really. After hearing that, some prosecutor wanted 37.65 months prison? Really. Sadly enough, this happens every day.
But, maybe this case can give you some understanding of what defendants and criminal defense attorneys are up against. Thank God Harry’s judge had the human decency to respond to the prosecutor as follows:
“This defendant does not belong in prison, and it’s absurd to have a 66-year-old man, who put his life on the line for our country, and has the problems he now has under the supervision of the Department of Corrections …
The defendant has spent 97 days in jail because he tested positive for cocaine[.] [E]ven if he used cocaine[,] I question whether anybody in this courtroom or this world, who went through in Vietnam when people like me sat home in our own living rooms and watched the war on television, would have handled this any better than the defendant.
The defendant is not accused of committing any new crimes. He is 66 years old. He has so many problems now dealing with mental health and physical problems. The common sense says enough is enough.”
With that, the judge gave Harry 98 days time served.
With that, the prosecutors appealed the judge.
The appeals court denied the prosecutor’s appeal–instead they agreed with Harry’s time served sentence. The reasons are somewhat technical, but summed up nicely by Judge Gross’ concurring opinion: “I write to emphasize that the record presents reasons for a downward departure that support the circuit court’s sentencing decision, in addition to the ground contained in subsection 921.0026(2)(d).
For the purpose of deciding whether to downwardly depart from the lowest permissible guidelines sentence, section 921.0026, Florida Statutes (2009) does not limit a sentencing judge to those “mitigating factors” specified in subsection 921.0026(2). Rather, subsection 921.0026(1) states that a judge is “prohibited” from downwardly departing unless there are circumstances or factors that reasonably justify the downward departure. Mitigating factors to be considered include, but are not limited to, those listed in subsection (2). (emphasis added). The statute thus allows the sentencing judge some discretion in identifying those mitigating factors and circumstances that justify a downward departure. Here, in addition to Chubbuck’s mental health and physical problems under subsection 921.0026(2)(d), the trial court also considered his age and the fact that he was not a danger to the general public.”
Ladies and Gentleman, do you really want to know where your taxpayer dollars are being spent? Look at our prison system–with higher populations than any other country on planet Earth. How did we get there? Look at this appeal. For every Harry that has fought an appeal like this one, there’s a thousand others that were not so lucky.
Thankfully, the appeals court upheld this brave judge’s decision to give Harry a time served sentence. And, in doing so, the appeals court gave us all hope that justice is slowly returning to the judicial branch of government. I don’t know Harry’s judge. Never met him or her. But, the world is a better place because of judges like this one.