More Injustice From Minimum Mandatory Sentences

flag tattered.jpgHow long had human beings been ruled by Kings, Queens, Pharaohs, and the like? Then along comes the first big experiment in governance–we Americans decided to rule ourselves. Now, for this experiment to work, the powers that corrupt must be separated, so as to provide a check on each other’s behavior. And this, my friends, is straight out of your fourth grade government textbook, the one with the big flag on the front.

The judicial branch has long held the awesome responsibility of sentencing citizens when they break the law. Judges are in the best position to understand all the facts and circumstances surrounding an offense, so they can best decide the consequences. Unfortunately, the legislative branch decided that judges are not doing a good enough job at sentencing, so our elected officials created “minimum mandatory sentences”. If a person is found guilty of committing such an offense, the judge has no sentencing discretion–the judge must impose the minimum mandatory sentence. For example, if you are caught with enough weed, you would be “trafficking in cannabis”, and sentenced to a 3 year minimum mandatory prison sentence. The judge would have no option to go lower than three years prison.

But wait, there’s more. The Florida legislature has set forth some conditions under which, if all the planets align, a citizen may petition the judge for a lower sentence than the minimum mandatory. We call this a “downward departure” sentence, and the rules governing a downward departure can be found in Florida Statute 921.0026. This statute lists over 10 circumstances under which a judge may depart, such as (1) pursuant to a plea bargain, (2) defendant requires specialized treatment for a mental disorder, (3) the victim provoked the incident, (4) the defendant was too young at the time to appreciate the consequences of the offense, or (5) the defendant played a minor role in the offense.

A downward departure sentence permits a judge to inject a bit of justice into the raw, sloppy, and intellectually lazy legislative mandates behind a minimum mandatory sentence. And that brings us to our case of the day, Rochester v. State, 140 So. 3d 973 (Fla. 2014). The case was decided incorrectly by our Florida Supreme Court, but before I tell you why, I first want you to know the facts of the case, as spelled out in Judge Pariente’s dissent:

The evidence at trial established that Rochester was visiting the home of JC, the victim, when he asked JC’s mother if he could go outside and look at the swimming pool. JC, who was nine years old at the time, was in the backyard when Rochester came outside to look at the swimming pool. JC testified that she was alone with Rochester in the backyard when he asked her “if [she] could keep a secret” and lifted her up, touched her on her clothed genitalia and clothed buttocks, and asked her to not tell anyone.

In a police recorded phone conversation with JC’s mother, Rochester admitted that he touched JC’s clothed genitalia, but not her buttocks. Further, in a videotaped confession to police, which was played for the jury at trial, Rochester admitted that he touched JC’s clothed genitalia. He stated that he touched her for “no more than ten seconds” and admitted that his fingers were moving “a little bit” when he did it, but that he was not aroused by the touching and “wasn’t thinking anything” when he touched her.” Id.

Rochester was offered 7 ½ years prison followed by 7 ½ years sex offender probation. He declined the offer and lost at trial. Not sure why he went to trial with a confession, but that’s a story for another day. The bottom line is, when you are found guilty of lewd molestation of a child under twelve, the sentencing options found in Section 775.082(3)(a)(4) are pretty straight forward–the sentence is either (I) a term of imprisonment for life; or (II) a split sentence that is a term of not less than 25 years imprisonment followed by probation for the remainder of the person’s life. To get around these two harsh options, Rochester’s defense attorney requested a downward departure sentence, arguing that “[m]itigating circumstances under which a departure from the lowest permissible sentence is reasonably justified include, but are not limited to . . . [t]he offense was committed in an unsophisticated manner and was an isolated incident for which the defendant has shown remorse.” § 921.0026, Fla. Stat. Id.

Clearly, Rochester qualified for a downward departure because the crime met three statutory criteria: it was an isolated incident, committed in an unsophisticated manner, and Rochester had shown remorse. Id. But, as you have probably already figured out, the trial court gave Rochester 25 years prison anyway. Why so much? Just a harsh judge? No. The trial judge felt powerless in the face of this minimum mandatory, complaining on the record that “I think that 25 years is extremely excessive on a case like this. If I had any authority whatsoever to go below, I would certainly go below. I don’t think I have any discretion in this case.” Id.

Judge Pariente correctly stated that Rochester’s sentence presented the following issue to the Florida Supreme Court; “whether the Legislature has expressly precluded trial courts from imposing a downward departure sentence of less than the twenty-five-year sentencing minimum provided in the statute — assuming the statutory requirements for a downward departure sentence are satisfied.” Id. And, add to the analysis the fact that Florida Statute section 775.021(1) provides that when statutory “language is susceptible of differing constructions, it shall be construed most favorably to the accused.” There is nothing in Section 775.082 which expressly excludes a downward departure. Unfortunately, the Florida Supreme Court ignored both the downward departure statute (and section 775.021) when they upheld Rochester’s 25 year sentence. Not once did the majority’s opinion earnestly address the issue above, as articulated by Judge Pariente. But, as I’ve been saying for years now, our courts will bend over backwards to uphold a sex offender’s sentence, even if it means ignoring several statutes along the way. I’m just saying.