Low End
The low end theory
“What am I looking at?” This is a question every person charged with a crime wants to know. This is the question criminal defense attorneys face almost every day.
Sometimes it is a simple answer, “Ahh. Just some probation.”
More and more often it is more complicated than that: Mandatory minimums, Habitual Offender, Prison Releasee, 1,000 feet, 10-20 Life, The Criminal Punishment code, etc... These are all bad things to hear as a criminal defendant. All these words tend to express the same thing to a criminal defendant: “Your best day is pretty bad and the worst is unthinkable.”
The reason is because those phrases all stand for the principle that the Florida Legislature has set a floor to punishment, but there is rarely a ceiling (a ceiling that isn’t really bad). It wasn’t always this way...
Going back to B.C. times...For non-capital offenses, it used to be that if the “wicked man” deserved to be beaten, the judge would make him lie down and be beaten with the number of stripes “according to his guilt.” Forty stripes was the maximum sentence. Why was forty one too many?
The reasoning was simple: “if he should exceed, and beat him with more stripes than these, your brother would be degraded in your sight.” Deut. 25:3.
If this is true, than, at some point, the punishment actually negatively affects the person who is doing the punishing. At some point, if we go overboard on punishment, we lose our humanity. But that’s old testament stuff...
Today, we don’t do the beating thing anymore (at least not officially). Instead we warehouse people in prison. And it seems that politicians have no problem with selling some humanity for votes as there is no limit to how much time a judge can sentence a person to (other than the statutory maximum).
In Florida, a huge factor in determining how long a person is warehoused is the Criminal Punishment Code (Florida Statutes Chapter 921). This is what our politicians have given us. The Criminal Punishment Code does not give the judges the exact sentence or even a range of possible sentences with a top and a bottom. The Code simply tells the judge what the lowest number of months in prison a criminal defendant must serve.
The mechanics of the Code are simple. Each crime equals points. There are ways to get extra points: victim injury, being on probation, prior history. The lowest number of months in prison will be based on points. This is the floor.
The low end of a punishment can also come from a Mandatory Minimum. Mandatory Minimum sentences are based on the type of crime. Certain crimes are so offensive (or are topical) to the legislature that the individual who committed them are ineligible for any lesser sentence from the judge. This could be practicing naturopathy without a license (1 year jail) or selling an oxycodone pill 999 feet from a park (3 years prison).
So, the legislature has not decided to impose any ceiling for punishment (other than the statutory maximums for crimes). It is much more complex than forty stripes.
So… when someone asks me, “What am I looking at?”
I take a deep breath and remember a time long ago when the system was focused on preserving humanity, rather than whatever it’s focused on now. And then I get to work...