Judge Robert Pineiro (or someone pretending to be him) posted the following provocative comment on
Rumpole's blog. It's very long for a post, but I think it's worth reprinting (reblogging?) in full. Please feel free to comment on this post. Here it is (hat tip to Marc Seitles):
Judge Roberto M. Pineiro said...
Horace,You have posed some very interesting questions.In response I offer the attached excerpts from a speach I gave some years ago at FIU.Please, excuse my verbosity. You have accused "robed ones" of loving to pontificate so surely, this diatribe must be to your liking as proof positive of your allegations."In order to impose an appropriate and just sentence the judge must factor in the nature of the crime and the nature of individual who has been found guilty of that crime. When I first stated my legal career as an Assistant Dade County State Attorney, 25 years ago, during the dark ages, a judge had full discretion to impose whatever sentence she felt appropriate; the only limitation was the statutory maximum penalty. This gave the judge an opportunity to hand tailor what she thought would be the best sentence for a particular crime and for a particular defendant. The judge would be free to give whatever weight she felt various factors warranted. Without hindrance she could analyze various considerations such as:1.the severity of the crime2.the severity of the injury to the victim3.the injury caused to society by the defendant’s actions4.all the relevant circumstances of the crime 5.the convicts criminal record or lack thereof and his entire past history6.the victim’s need for restitution7.the possibility of rehabilitation8.the possible need to send a message to the community9.a host of other variablesThe law gave the judge full discretion free of any limitation in all cases but one–first degree murder. That crime had a penalty of life in prison with a minimum mandatory sentence of 25 years state prison. This meant that, regardless of any other consideration, the most lenient sentence a person convicted of this crime could receive was twenty-five years in state prison. A spouse who kills his partner to collect an insurance claim would face the same penalty as a spouse who pulls the plug on a terminally ill and suffering partner. In 1977 this was the only minimum mandatory sentence, or “min-man” in legal parlance, on the books.While a judge enjoyed great freedom to fashion the best possible sentence in his estimation this free wheeling discretion led to great disparity of sentences for similar crimes throughout the state. Judges were, in no way, required to try to give similar penalties for similar crimes. There could be great differences in sentencing policies between courtrooms just a few feet apart from each other not to mention differences between cities such as Miami or Tallahassee. In order to promote more uniform sentencing across the state and across the hallway for similar crimes, a laudable goal, the legislature in the early 1980's created sentencing guidelines–thereby bringing mathematics into the art and science of judging. Crimes were categorized by their severity and were given a certain number of points–the higher the number the more severe the crime. Points were also assessed for other factors such as: victim injury, prior convictions, legal restriction at the time of the offense, such as probation, and any additional offenses. All the defendant’s points were then totaled up on a score sheet and the defendant’s guideline sentencing range was computed. Lawyers, many of whom came to the law because they hated the math required for medical school, were shocked to discover they had to learn how to use a calculator. I still don’t know how to use one. That’s why I became a judge; I force the lawyers to use them for me. By law, these guidelines are mandatory and the court must not deviate upwards or downwards absent some very precise and codified circumstances.The sentencing guidelines did provide for more uniformity while allowing the court discretion to sentence within the sentencing range and to determine if any special circumstances exited for mitigation or aggravation of the sentence. The guidelines allowed judges a way of fashioning a sentence for similar crimes in line with other courtrooms around the state. Thus, defendants were treated more equally. The guidelines fashioned a good balance between allowing a judge full discretion to impose a punishment for one certain individual and providing for equal treatment of particular crimes across the state. The guidelines were so successful that the legislature decided that even more uniformity was in order. They felt that certain crimes were so serious that minimum-mandatories or min-mans should be imposed. In the mid eighties in our country and, more particularly, in our state the “cocaine cowboys” were in full cattle drive mode. Substitute coke and other killer drugs for the cows. Our state was drowning in a deluge of illegal and lethal drugs. The drug trafficking also fostered a bloodbath of drug related murders. The Medical Examiners office had to rent a refrigerated Burger King truck to house the overflow stiffs. Drastic measures were needed to stem the tide. The legislature turned to minimum mandatory statutes; keep the drug dealers in prison for a time certain and, at least, that one charming fellow would be out action for a while. One less criminal for law abiding citizens to worry about. Starting with the one min-man statute on the books in 1977 min-mans have proliferated amazingly since the mid 80's; it’s like bunnies high on viagra. We now have dozens of min-man statutes. They include:1.Possession of more than 25 lbs. of marijuana–3 years min-man2.Possession of more than 2,000 lbs. of marijuana–7 years min-man3.Possession of more that 10,000 lbs. of marijuana–15 years min-man4.Possession of more than 28 grams of cocaine–3 years min-man5.Possession of more than 200 grams of cocaine–7 years min-man6.Possession of more than 400 grams of cocaine–15 years min-man7.Possession of more than 150 kilos of cocaine–Life min-manThere are also min-mans for possession of other drugs. The preceding list is just some examples. The court has no discretion, whatsoever, to impose a lesser sentence. The mid level coke dealer in possession of 199 grams of cocaine faces the same min-man as the mule who swallows balloons filled with 29 grams of cocaine. This is where the persuasion and mediation and the uncommon sense of judging comes in–trying to help convince the prosecution that, perhaps, the equities of a particular case or defendant require a more lenient resolution and convincing the defendant that, if found guilty, the prosecution is in the driver’s seat, so it may be in his best interests to cut his loses and take the state’s plea offer.Interestingly enough, while denying the judge, the elected official ultimately responsible to the electorate, the discretion for leniency the legislature gifted it to the State Attorney’s Office. In actuality, a prosecutor just a few years out of law school is in control of the min-man sentence, as opposed to a veteran jurist with decades of experience and with well earned grey hairs. How does the prosecution exercise it’s discretion to waive the minimum mandatory sentence? By law, the prosecution may waive the min-man if the defendant provides “substantial assistance in the identification, arrest, or conviction of any of that person’s accomplices, accessories, co-conspirators or principals or of any other person engaged in trafficking in controlled substances”. Substantial assistance can, in the first place, be provided by, in effect, ratting out your running buddies; your partners in crime. Well and good, you turn in other criminals who have already committed a crime. Certainly, this is of great benefit to society–some more bad guys off the street equals less crime being committed. However, there is a second way of providing substantial assistance. You can assist in the arrest or conviction of “any other person engaged in trafficking in control substances.” Basically, you will be turning in other people who are not your present partners is crime. How this works is that the police go on a fishing expedition trolling you as the bait. You become a police confidential informant, a C. I., and sent out with instructions to make provable cases for them. You are asked to commit crimes with the intention of arresting future criminals. Some plea agreements call for the informant to bring in a certain number of “fish” and of a certain weight. If you do not succeed, then do not pass go and go to prison for your minimum mandatory sentence. However, if you succeed then you are off the hook. You go free and your fish goes to jail; that is unless he too earns his C. I. wings and goes on the prowl, looking for his own catch to turn in. What if you actually do really, really well, better than expected–hey, lets give you permanent employment and start paying you a bonus for future provable cases. We’ll put you on commission. Who says crime does not pay? You have an untrained, highly motivated and proven bad guy engaging in crime with the court’s blessing. There have been notorious incidents where some of these valued confidential informants have committed perjury, have entrapped otherwise honest citizens; one especially infamous female informant traded sexual favors to help set up cases. Prostitution on behalf of law enforcement may not be the most laudable means of crime prevention. This manner of substantial assistance has become so unsavory that I refuse to accept substantial performance pleas involving this second type of assistance.Regardless of the of type of substantial assistance provided, what type of criminal can provide it? The one time dealer who sees an opportunity to make a quick buck, perhaps at the suggestion, maybe even the urging, of a confidential informant? The moronic, desperate mule who is so behind the 8 ball that he would actually swallow balloons filled with poison? The bad guy who, not only, talks the talk, but who also walks the walk of the certified, no-good, down and dirty, poison pedaling scum of a drug dealer? If number three is your final answer, then you’re ready to go on to the next round. Yes, folks the guy most people would want off the streets in a big way has a new lease on life and has been reincarnated as Officer Friendly. Yes, this is the man who enjoys the state’s leniency–the one who least deserves it. The one time dealer knows very little and can’t help the cops. The mule, he’s at the very bottom of the drug dealing totem pole. All he can do is give the name of the person who gave him the drugs, in another country. The prosecution is not in agreement with Jesus Christ’s praise of the old widow who gave one coin to the temple because it was all she had. They’d rather deal with the certified drug dealers who can provide them with lots of gold in the form of substantial assistance. There are other minimum mandatory penalties that apply based upon the geographical situs of a particular crime. If you are in possession of a controlled substance with intent to sell or deliver and are a certain distance from certain facilities, then some min-mans apply. Possession with intent to sell or deliver can be proven to a jury by the amount and packaging of the drugs in your possession. Drug dealers tend to sell drugs in small individualized plastic bags or tin foil. The problem is that drug buyers tend to buy drugs in small individualized plastic bags or tin foil, because that is how dealers sell them. So, how do you differentiate the seller from the buyer? It’s a judgement call for the jury.If you are in possession of a controlled substance with intent to sell or deliver and are within a 1,000 feet of a house of worship, or within a 1000 feet of a child care facility, or within a 1,000 feet of a public or private elementary, middle or secondary school, or within a 1,000 feet of a convenience store, or within 200 feet of a private or public college or university, or within 200 feet of a public park, or within 200 feet of a public housing facility then you face a minimum mandatory penalty of, no questions asked, 3 years state prison. Can any one of you, please, tell me where I can find a place in Miami that is not within the proscribed boundaries of the aforementioned facilities? Unless the state can be persuaded to treat you with leniency, you’ll do your 3 years in the slammer, even if you are an honor student with a drug problem, even if you beg for drug treatment, even if you are a decorated veteran with a “jones” for heroin caused by war wounds, even if you didn’t know that the 7 Eleven was only 999 feet away and you’d never been to it anyway. You are still at the mercy of the state. Certainly, in the aforementioned circumstances you are bound to get some leeway, but you are not legally entitled to it. And well, who knows?You say you’ll take it to the jury. Surely six good people from our community will see you are not really a bad guy; that you’ve never even been arrested before, and give you a break. They won’t find you guilty and send you away for 3 years, day for day, when they find out about how good you are and about how you were addicted because you served our country in war and how unfair the state is being to you. You’re lawyer will tell them to find you guilty of a lesser charge so that the min-mans don’t apply. Wrong. The jury will not find out that you’ve never been arrested before. It is against the law for them to do so. The jury will not find out you were addicted because of your war wounds. The evidence code says it’s not relevant and it is disallowed. The jury will not find out you are facing a minimum mandatory sentence of three years. This too is illegal and will not be allowed in evidence for the jury to hear. The jury is never told the penalty you are facing. Your lawyer will not be able to argue for a finding of guilt to a lesser charge because of the min-mans. The court is legally required to instruct the jury that if there is a finding of guilt it must be for the highest offense which has been proven beyond a reasonable doubt. All of the foregoing will happen because, while I may think your cause is just and that you are deserving of a break, I am a sworn officer of the law and I will follow the law whether I like it or not. My personal feelings have absolutely no say in how I am duty bound to follow the laws by which we must all abide . Absent the state’s magnanimity, you’re goose is cooked... The manic proliferation of these minimum mandatory statutes put the courts on the sidelines in the fashioning of an appropriate sentence. The legislature has let the pendulum swing too much toward lack of discretion and is creating, in many cases, cookie cutter justice. The legislature is to be lauded for giving judges the discretion to upwardly depart in the cases of career criminals and habitual violent offenders to the extent that they can be sentenced to even beyond the statutory maximums. Hopefully, in the future, greater discretion will be exercised in carving out further exceptions to the use of the reasoned discretion of the people’s elected judges. After all, if a judge is doing a poor job by sentencing too leniently, then exercise your right to vote and kick the bum out of office."Judge Roberto M. Pineiro
