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Have a Little Heart

Have A Little HeartSome things are simply hard to explain.

Why is there something rather than nothing?

How did self-conscious beings arise out of lifeless star dust?

And, how can prosecutors be so cold-hearted?

To help answer question number three, above, we’re going to review a recent case. To mentally prep you, let’s start with some stretching exercises. For sentencing purposes, assume that drugs are bad, and selling them is even worse. Contrary to what you’ve seen on TV, most of the drug sales force out there consist of poor people trying to support their habit. They don’t own fast cars or 22″ rims. And, it’s probably a myth that they’re “selling” anything. Philosopher Chris Rock argues that no one really “sells” drugs–drugs sell themselves. If you can get someone to buy life insurance, you’re a sales person with real sales skills.

Anyway, our true story of the day involves a single mother of three young children, and she was caught selling drugs in order to support her addiction. State v. Sawyer, 2016 Fla. App. LEXIS 17723 (Fla. 1st DCA 2016). The penalties facing Ms. Sawyer were steep. She scored a minimum prison term of 39 months, a maximum sentence of 15 years prison. But, does minimum really mean minimum? Well, not really, ’cause you know sometimes words have two meanings’, as Robert Plant would sing.

Obviously, Ms. Sawyer’s defense attorney wanted the judge to give her something less than the minimum sentence, but to do that she would have to qualify for a downward departure. I know, boring legal terminology just a few sentences into this. Sorry. And, this mandatory prison term clouds other important issues, like, does Ms. Sawyer deserve over three years in prison? What will that cost taxpayers? Why wouldn’t we address Ms. Sawyer’s addiction, and have her ready to raise her three kids? Isn’t it cheaper for the taxpayers, and better for society?

These questions were irrelevant to the prosecutor. The knee-jerk reaction to someone scoring prison is, “give them the prison time” (you know that when your knee jerks your brain isn’t even processing information). Some folks would say that your success in life is directly related to the number of uncomfortable conversations you are willing to have. I’ve had plenty of these uncomfortable conversations with prosecutors unwilling to think these matters through. Why think? The legislature has mandated a prison term, so we don’t have to give any thought to this, right? Well, we’re going to do some thinking here. Was Ms. Sawyer’s attorney able to get her to qualify for less than 39 months via a downward departure?

Obviously, the prosecutor would not agree to a lower sentence, so the only option was to ask the judge for a lower, departure, sentence. Ms. Sawyer had several witnesses testify, indicating “that she has a long history of substance abuse, and that there was a high level of substance abuse in the home as she was growing up. Until very recently she has never been involved in a substance abuse treatment program. She is currently involved in a treatment program offered to inmates in the Franklin County Jail, and the director of that program indicated that she has actively participated in the program, and he believes she is serious about wanting to conquer her addictions, and would benefit from further treatment.” Id.

Now, getting a sentence less than the minimum can be a tricky maneuver (we have addressed downward departures here, or here, and other places). Even if the judge agrees that your client qualifies for a downward departure, the judge is not compelled to give a lower sentence. It can be a bit confusing to realize that a “minimum” doesn’t really mean “The Minimum” if the option to impose a downward departure is available. To muddy the waters further, let’s take a look at a legal analysis from the Unfrozen Caveman Lawyer:

“Ladies and gentlemen of the jury, I’m just a caveman. I fell on some ice and was later thawed by some of your scientists. Your world frightens and confuses me! Sometimes when I fly to Europe on the Concorde, I wonder, am I inside some sort of giant bird? Am I gonna be digested? I don’t know, because I’m a caveman, and that’s the way I think! When I’m courtside at a Knicks game, I wonder if the ball is some sort of food they’re fighting over.” – Saturday Night Live, Season 21, Episode 16, Phil Hartman

Ok, back to Ms. Sawyer. I know what you’re thinking. You’ve heard the whole drug addict routine before. And, if you’ve seen William H. Macy as Frank on Shameless–you probably have a pretty good understanding of what its like to live with an addict (Shameless is Showtime’s best show, other than Homeland, and Billions is growing on me). Ms. Sawyer’s problems don’t end at addiction. At her hearing, a health care professional testified, and indicated that Ms. Sawyer “needs to be seen by a mental health provider” because she “has been a battered woman, she has had experiences with ill-fated relationships that have left her victimized; and then she victimizes.” Id. So, even if you don’t have much sympathy for addicts, how about a battered woman? We’re getting somewhere, right? Yes, we are.

The judge decided to give Ms. Sawyer residential drug treatment–instead of prison.

The prison thirsty prosecutor was furious. So much so, that the prosecutor filed an appeal–the very appeal we’re talking about today. And yes, this appeal cost money. Your taxpayer dollars. This appeal seeks to yank Ms. Sawyer out of residential treatment, and have her thrown into prison for at least 39 months. This will cost taxpayers even more money, because a year of residential treatment is far cheaper than 39 months prison. Add to that cost the three young children who will not get to see a rehabilitated mommy, but must wait several more years to see mommy released from prison with no rehab.

Like I said. Cold-hearted.

So, how did the appeal go?

I regret to inform you that the prosecutor won. Sort of. The appeals court overturned the residential treatment sentence, but only because the judge didn’t give a good enough reason for the downward departure. Clearly, the appellate judges did not like what they saw here. Judge Wolf indicating that he only overturned the sentence “because the law requires me to do so. However, the trial court, which heard extensive testimony and was present to evaluate the witnesses, made findings explaining that the interests of society and [Ms. Sawyer] would be best served by sentencing [her] to inpatient substance abuse treatment followed by community control and probation, rather than incarceration”. Wolf goes on to reason that a “trial judge should have the discretion to listen to the evidence, evaluate the witnesses, and come up with a reasonable downward departure sentence based upon the circumstances present in a particular case.” Id.


Now, why did I say the prosecutor “sort of” won? Why use air-quotes here? Because, basically, the appellate court gave the lower court their blessing to depart “if there are valid grounds”. Yes, I’m sure they’ll be valid grounds the next go-around.

Still, its disappointing to see so much turmoil due to addiction. Its sad to see children suffer (either way). When people need help, and are willing to work for it (as is the case with residential treatment, government sponsored rehabs are nothing like the beach spas utilized by celebrities), its cold-hearted not give someone a chance to change their life. Undoubtedly, Sawyer’s lawyer will present testimony on remand which will make this rehab sentence perfectly legal.

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