I’ve heard folks complain that some laws simply “legislate morality” and as such, those laws should be stricken. After all, just because my mom thinks it’s wrong to do heroin, that doesn’t make it wrong for others, right? Well, I hate to break it to you, but all of our laws legislate morality, and it seems like prostitution is a more obvious piece of moral legislation than most. After all, everyone can agree that rape and molestation are wrong, but the grey areas involve crimes that do not, on their face, harm others. The Libertarian in me says, hey, if you want to inject yourself with enough heroin to have a Near Death Experience, go for it (NDE for short, and, doesn’t it legitimize things when a string of words has an acronym? Yes, it does, don’t fight it). The problem is, how far are you willing to take this idea that an individual’s drug abuse doesn’t affect anyone else? (aren’t we all ‘connected’?) I’m guessing that most heroin addicts have no medical insurance to pay for the ambulance ride to the morgue, so the rest of us end up paying for someone else’s rock star lifestyle. And yes, you can find a better analysis of this topic in some overpriced college textbook in philosophy, political “science”, or religious studies, but I prefer a band called Cake:
“Aging black leather and hospital bills, Tattoo removal and dozens of pills. Your liver pays dearly now for youthful magic moments, but rock on completely with some brand new components.
. . .How can you afford your Rock N’ Roll lifestyle? . . .Excess ain’t rebellion, you’re drinking what they’re selling” – Rock n Roll Lifestyle, Cake
One of the “crimes” that I think shouldn’t be a crime is prostitution. The previous sentence may offend all the good people out there, but I’m just saying, consenting adults should be allowed to pay for basic human needs. Why reserve the basics for paraplegics who can afford sex surrogates? What I do like, though, is the idea of health insurance companies paying for sex, it’s what Marvin Gaye was talking about in his track Sexual Healing, right?
Ok, you’ve heard this rant before, so let me get back on track. Last year, the constitutionality of the prostitution statute was challenged because the statute imposes a $5,000.00 fine for soliciting a prostitute. Yes, you heard me. A $5,000 fine. No, beating your wife only carries a $1,000 fine. No, killing your neighbors golden retriever only gets you a $500 fine. Consensual sex between adults for money—$5,000. Isn’t this a bit much? That’s the question raised in the case of State of Florida v. Joseph Lloyd Cotton (Marion County Case No. 2013-MM-4788, May 16, 2014, Judge Robert Farrance). Cotton pled to solicitation of prostitution, and received 6 months of probation, along with a mandatory $5,000 fine. He appealed. The question posed by the court is as follows “Is the $5,000 fine mandated by Florida Statute 796.07(6) (2013) for a first violation of Florida Statute 796.07, a second degree misdemeanor under Florida law, unconstitutionally excessive, in light of the nature and gravity of the criminal offense being punished?”
To answer this question, we start with the Eight Amendment to the United States Constitution, which reads: “excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted”. And, Florida’s Constitution contains similar language in Article I, Section 17, stating that “excessive fines, cruel and unusual punishment, attainder, forfeiture of estate, indefinite imprisonment, and unreasonable detention of witnesses are forbidden.” But the mandatory $5,000 in a prostitution case is labeled a “civil penalty”, because the maximum “fine” you can impose on a prostitution charge is $500. Our sneaky elected officials have tried to get around these basic constitutional principles by labeling the $5,000 payment a “civil penalty”. The prostitution statute clearly states that the $5,000 payment is NOT a fine—it is a “mandatory civil penalty”. [In a previous article you can find here, I go deeper into an analysis of the disproportionality of a $5,000 fine on a second degree misdemeanor. The court in Cotton dismisses any sort of proportionality analysis based upon forfeiture laws, claiming that such reasoning cannot be applied to a “civil fine” like the one found in the prostitution statute.]
The judge in Cotton states that “the sole issue the Court is required to consider in the present case is whether the $5,000 civil fine is excessive, after considering the gravity of the criminal offense committed by the Defendant.” Id.
Thankfully, the Court held that “the $5,000 civil fine imposed pursuant to Fla. Stat. 796.07(6) (2013) is excessive, unduly oppressive, and unreasonably harsh, such that it would shock the conscience of reasonable men. While the Court agrees that prostitution is an ongoing concern in our community, and that the Legislature is justified in adopting a statute to prohibit, and punish the commission of that offense, the Court finds that the $5,000 civil fine recently adopted by the Legislature is disproportionate to the gravity of the offense it purports to punish, in light of the civil fines imposed for other, more serious offenses.” Id. Now, I am very happy with the judge’s ruling, but the ruling lacks any sort of analysis as to why the fine is “oppressive”, “unreasonably harsh”, or how it shocks “the conscience of reasonable men”. True, it is shocking to me, and I consider myself reasonable, so go deeper, these conclusions are just brute facts for reasonable folks, right? Well, not for the hundreds of elected officials that passed this bill. Anyway.
That being said, the court does an excellent job of making its case that the $5,000 fine is “excessive” in light of the gravity of the offense. After all, there are numerous third degree felonies that carry the same $5,000 civil penalty. This list includes winners like: Robbery (3rd Degree Felony version), Burglary of a Structure, Burglary of a Conveyance, Battery on a Law Enforcement Officer, Grand Theft (3rd Degree Felony version), Possession of Child Pornography, Aggravated Stalking, Child Abuse (3rd Degree Felony version). All of these felonies carry a maximum of five years in state prison, versus a prostitution charge that carries a maximum of 60 days in jail. How our elected officials could have passed this excessive fine is beyond