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May 12, 2012

Another obvious mandatory sentencing injustice in Florida "warning shot" case

As reported in this CNN story, headlined "Florida woman sentenced to 20 years in controversial warning shot case," another high-profile shooting case in Florida has produced a different kind of criminal justice controversy.  Here are the details:

Saying he had no discretion under state law, a judge sentenced a Jacksonville, Florida, woman to 20 years in prison Friday for firing a warning shot in an effort to scare off her abusive husband.

Marissa Alexander unsuccessfully tried to use Florida's controversial "stand your ground" law to derail the prosecution, but a jury in March convicted her of aggravated assault after just 12 minutes of deliberation.

The case, which was prosecuted by the same state attorney who is handling the Trayvon Martin case, has gained the attention of civil rights leaders who say the African-American woman was persecuted because of her race.

After the sentencing, Rep. Corrine Brown confronted State Attorney Angela Corey in the hallway, accusing her of being overzealous, according to video from CNN affiliate WJXT. "There is no justification for 20 years," Brown told Corey during an exchange frequently interrupted by onlookers.  "All the community was asking for was mercy and justice," she said.

Corey said she had offered Alexander a plea bargain that would have resulted in a three-year prison sentence, but Alexander chose to take the case to a jury trial, where a conviction would carry a mandatory sentence under a Florida law known as "10-20-life." The law mandates increased penalties for some felonies, including aggravated assault, in which a gun is carried or used.

Corey said the case deserved to be prosecuted because Alexander fired in the direction of a room where two children were standing. Alexander said she was attempting to flee her husband, Rico Gray, on August 1, 2010, when she picked up a handgun and fired a shot into a wall.  She said her husband had read cell phone text messages that she had written to her ex-husband, got angry and tried to strangle her.

She said she escaped and ran to the garage, intending to drive away.  But, she said, she forgot her keys, so she picked up her gun and went back into the house. She said her husband threatened to kill her, so she fired one shot. "I believe when he threatened to kill me, that's what he was absolutely going to do," she said.  "That's what he intended to do. Had I not discharged my weapon at that point, I would not be here."...

A jury convicted Alexander in March and Judge James Daniel denied her request for a new trial in April.  Daniel handed down the sentence Friday after an emotional sentencing hearing during which Alexander's parents, 11-year-old daughter and pastor spoke on her behalf.

Several people had to be escorted from the courtroom after breaking out singing and chanting about a perceived lack of justice in the case, but Daniel made a point to say that he had no choice under state law. "Under the state's 10-20-life law, a conviction for aggravated assault where a firearm has been discharged carries a minimum and maximum sentence of 20 years without regarding to any extenuating or mitigating circumstances that may be present, such as those in this case," Daniel said.

Brown, the Jacksonville congresswoman, told reporters after the sentencing that the case was a product of "institutional racism."

"She was overcharged by the prosecutor.  Period," Brown said.  "She never should have been charged."  Brown has been more complimentary about Corey's work in the Trayvon Martin case, where her office filed second degree murder charges against neighborhood watch volunteer George Zimmerman in the February 26 death of the unarmed African-American teen-ager.

It is sad, very disappointing and ultimately quite harmful that Rep. Corrine Brown is apparently so eager to assert that the injustice in this case reflects "institutional racism" and misuse of prosecutorial discretion.  It seems far more appropriate to complain that the injustice in this case reflects structural flaws in Florida's sentencing laws and mistakes by the state legislature to fail to provide a safety-valve from the application of broad mandatory sentencing provisions.

As the CNN story reveals, the prosecutor apparently had the ability and authority to prevent application of Florida's "10-20-life" sentencing law if Marissa Alexander had been wiling to forgo her constitutional right to trial to have the judicial system consider her self-defense claims.  But after Alexander decided to exercise her trial rights, then her conviction apparently deprived a judge or any other authority the ability and authority to sentence her to anything less than 20 years in prison.  Without knowing more about the case, I am not sure if the three-year term offered in the plea or even a lesser sentence would have been appropriate, but it seem obvious to me that a 20-year term is grossly excessive for Alexander's offense conduct.

Bemoaning this case as a reflection of "institutional racism" brings far more heat than light to this dark (but not uncommon) example of mandatory sentencing injustice.  A focus instead on the problems with letting only prosecutors and not judges decide if a case merits an exception to strict sentencing rules could help this case engender needed structural reforms rather than more racial polarization.  Helpfully, the folks at FAMM are effectively using this case to bring attention to these critical sentencing matters, but I fear that the eagerness of Rep. Corrine Brown to play the race card will eclipse FAMM's efforts to use this kind of case to foster sober and needed sentencing reforms.

Though I am not certain of the sentencing commutation authority of Florida's Governor, this case seems to cry out for executive clemency.  Though involving a very offense environments, I am reminded of the high-profile "border agent" case from a few years ago in which two federal border agents got saddled with a sentences of more than a decade after failed self-defenses claims due mandatory federal gun sentencing provisions.  On his last day in office, as detailed here, President George W. Bush justifably commuted the sentences of these border agents.  I hope Florida's Governor has both the power and the wisdom to use the same means to undue an obvious sentencing injustice in this case.

May 12, 2012 at 09:34 AM | Permalink


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Of you aren't willing to kill then the situation isn't serious enough to warrant firing to begin with. I am fully on board with this sentence.

Posted by: Soronel Haetir | May 12, 2012 10:54:35 AM

I saw this story discussed on the Melissa Harris-Perry Show a week or two ago and was confused about it myself. The "stand your ground" hook (down to the same prosecutor) alone makes it compelling (if open to confusion) but even w/o the domestic abuse angle (we can debate facts there), it seems strange that a crime of this sort would get so high of a sentence.

The institutional racism angle is problematic as you suggest and I don't think that's a fruitful way for advocacy groups to "get justice" here. Wrong or not, it seems more logical to focus on the domestic violence and institutional problems there. The woman prosecutor hurts there but institutional racism doesn't disappear just because black prosecutors are involved either.

OTOH, I don't know abut the prosecutorial discretion. She wasn't forced to try her with something that brings with it such a high sentence. A lesser charge was probably available, including something involving misuse of a firearm. The use of "aggravated assault" is problematic in this fact pattern.

Posted by: Joe | May 12, 2012 11:01:05 AM

I think Soronel is 100 percent wrong. if I could stop someone from victimizing my family by shooting him in the leg or simply shooting a warning shot, I would. It seems pretty perverse to me to punish someone for not killing when lesser retaliatory force could do the job.

Posted by: Thinkaboutit | May 12, 2012 11:26:31 AM

You also have the benefit that with only a dead body there's only one story being told, the other has to be pieced together and there are going to be holes. I do think Martin being dead is eventually going to work in Zimmerman 's favor.

Posted by: Soronel Haetir | May 12, 2012 12:37:00 PM

Professor Berman,

Thank you; I agree wholeheartedly.

Soronel: I discuss "warning shots" briefly here: http://sentencespeak.blogspot.com/2012/05/on-warning-shots.html.

Greg Newburn

Posted by: Greg Newburn | May 12, 2012 2:16:39 PM

Soronel -- you don't think she should be summarily executed? Don't be getting soft on us now ;)

I agree with Berman -- I don't necessarily think it's so much of a case of institutionalized racism (perhaps racism of some of the jury members played a role in rejecting her argument of stand your ground which, given the facts, seems pretty straightforward, but that's not an institutional issue) or prosecutorial misconduct as much as it is the fault of the legislature. Mandatory minimums are really a pretty dumb idea. While they certainly do enforce uniformity, they also lead to cases just like this one and thousands of others where the judge has no ability to take into account the mitigating factors that are present. Presumably the trial judge would be the best one suited to do that, rather than legislators thinking about future crimes.

Posted by: Guy | May 12, 2012 3:06:55 PM


I'm not sure I have ever actually argued for mandatory execution, only a very strong presumption that execution is the appropriate punishment for all felony convictions and that once a felony conviction is obtained it should then be up to the offender to convince either the jury or judge (depending on court set up) wwhy they personally are undeserving of that fate. And that the more serious the felony the stronger the presumption that execution is the deserved punishment in any particular case.

Given only what I have read I would personally have no problem pushing the plunger, though I would also have had little problem seeing her serve the three years or so that she rejected.

Posted by: Soronel Haetir | May 12, 2012 3:43:20 PM

Soronel Haetir -- Maybe I'm wrong, weren't you, a few years ago, a relatively moderately commentator? Is there some post that explains why you jumped into S.Cotus style weirdness, rather than just asserting that hundreds of thousands of people should be put to death? From googling your name, you appear to be essentially a professional blog commenter, so I'm guessing this is mostly shtick, but just curious.

Posted by: Jay | May 12, 2012 5:52:55 PM


My very earliest posts to SL&P advocated a sentencing system that would result in many felony offenders being executed while the rest were eventually rturned to a state very close to that of a current pardon recipient. The only real shift in my views has been in thinking that instead of executing only 25 to 50 percent of felons that we should execute somewhere between 75 and 90 percent of them. Once you accept that 50 percent of felons can be executed I don't think thinking that 90% is a better number is a huge change in outlook.

My major disagreements with our current court system are pre-conviction. I think it should be much more difficult to obtain a conviction to begin with than our current practice allows. One such instance, I think a hung jury should be an acquittal, it is up to the state to prove guilt and in the case of a hung jury the state has failed.

Posted by: Soronel Haetir | May 12, 2012 6:03:39 PM

Prof. Berman:

Full disclosure: I work for Ms. Corey.
Fuller disclosure: CNN didn't tell the half of this case. The defendant has a well-organized PR machine to try her version of the case in the media. Problem is, their facts are not just incomplete, but really wrong. Here's what she did to the same man while she was out on bond pending trial for the shooting (she pled guilty): http://www.news4jax.com/blob/view/-/13125028/data/2/-/fvlnhh/-/Alexander-Arrest-Report-Dec--2010-pdf.pdf

Here's what the first judge ruled about her supposed defense (the current judge upheld this ruling, page 4 is especially helpful): http://www.scribd.com/doc/89763280/Order-Denying-Defendants-Motion-for-Immunity-and-Motion-to-Dismiss

The jury took about half an hour to convict her.

Think what you will of the minimum mandatory system, but at least do so with more of the facts.

Please don't judge the rest of Florida by Corrine Brown. I promise not to judge Ohio State by Terrelle Pryor.

Posted by: Rich Mantei | May 12, 2012 10:32:19 PM

Mr. Mantei:

You're missing the point. No one, at least here, is disputing her guilt. The question is whether she deserved such a long sentence. In the post directly below this one there is a person who was convicted of murder who received a 3.5 year sentence. Whatever else might be the case, certainty it seems backwards that the murderer got a much shorter sentence than the person whose victim lived.

The whole "warning shot" issue is a red herring. She could have been convicted of attempted murder. So what. Even I can see the plain difference between a live body and a dead one. This blog is not just about sentencing law but sentencing policy. And I think it's bad policy to have a murder walk away with a three year sentence while the attempted murder gets 20.

Posted by: Daniel | May 13, 2012 12:05:56 AM


Those facts are certainly different from the ones that have been reported in the media, and I'll take that as an indication that the media sometimes (oftentimes) gets it wrong. Even still, I'm with Daniel -- the point isn't necessarily so much that Mrs. Alexander wasn't guilty or didn't deserve to be punished. The point is that a mandatory minimum of twenty years is every bit as much an injustice as Mrs. Alexander's crime.

Posted by: Guy | May 13, 2012 12:21:29 AM

Dan and Guy, I get the point. I think facts matter when considering whether a sentence is appropriate or not, so I think it important to have the real ones. That way, whatever opinion one has about the length of any sentence is a better-informed one. Said opinion may or may not be different than mine or anyone else's, but at least it's not based on misinformation. That's all I'm really trying to say.

Posted by: Rich Mantei | May 13, 2012 10:26:50 AM

What if the genders were reversed? Would this sentence be too severe for a man?

Posted by: Anon | May 13, 2012 11:15:56 AM

Rich Mantei --

Amen. Thank you for giving us the rest of the story.

Posted by: Bill Otis | May 13, 2012 5:59:41 PM

Rich, thanks for joining this discussion. I think the charges by Rep. Brown are misguided; there is no evidence of "institutional racism." But I have two questions:

(1) Ms. Corey said after the sentencing, "In this particular case, after meeting with Rico Gray senior and his two sons and also meeting with Marissa Alexander, we were convinced that a three year minimum mandatory sentence would serve justice under these circumstances." Because Ms. Alexander believed she was innocent and went to trial, did she become so much more dangerous that 20 years became the "appropriate" sentence? Which one seems appropriate to you since you were so involved - 3 or 20 years? Seems like a big difference.

(2) Your boss said everyone commenting on this case is twisting the truth. She told the Huffington Post about Ms. Alexander, "She didn’t fire into the ceiling. They are blatantly lying. She fired the shot toward the living room, where they were, at an adult that she was angry with. ...She fired at two children." Is it Ms. Corey's view now that since Ms. Alexander's family is lying, that she can lie, too? She knows full well that NO ONE has even alleged that Ms. Alexander "fired at two children," right? And that one of the children testified under oath that he didn't even feel threatened?

The only good thing is that, unlike appointed prosecutors, Ms. Corey will be held accountable by the people at her next election. After she loses in her prosecution against George Zimmerman, I can only hope she is thrown out of office. Thanks.

Posted by: Thinkaboutit | May 13, 2012 8:25:12 PM

Dear anonymous internet dweller: If you want to have a discussion this is a strange method. I presented the known factual court documents. You present ellipsed stories from HuffPo and hide your identity (which is your right, just as it is my right to suggest you are a fact-lacking coward).

Do you find that constructive as far as sentencing policy discussions?

I believe the election is being held this fall. And if you are as good a troll as you seem to think you are, it should not be hard for you to find out whether there is opposition.

Posted by: Rich Mantei | May 14, 2012 7:20:01 AM

Mr. Mantei--the first question seems a fair one. If you're familiar with my posts, I am a law and order guy who is disposed to skepticism about claims of innocence, but I think question no. 1 gets to the heart of the matter--should there be in effect a "trial penalty" for asserting one's innocence. My guess is that Ms. Corey probably factored in the possibility of Ms. Alexander getting acquitted in her evaluation of whether justice would be served. It's a tough issue--a prosecutor could think that a particular crime deserves X years, but is willing to trade certainty for time. And, given the ridiculous decisions in Frye and Lafler v. Cooper, the defense side here can certainly claim that Ms. Corey clearly thought that 3 years was just and now wonder if Ms. Alexander was overcharged.

Sorry if this post is a little rambling---just dashing it off, and no time to revise it.

Posted by: federalist | May 14, 2012 9:08:48 AM

Rich: For purposes of this discussion, let's assume that every fact the prosecution alleged is true and accurate. Given that, does your office believe 20 years is a just and appropriate sentence, or not? If so, why did Ms. Corey offer three years? What principle is served by the additional 17 years?

Posted by: Greg Newburn | May 14, 2012 9:52:26 AM

I figured it would be easier to call me names than to answer those questions.

Posted by: Thinkaboutit | May 14, 2012 10:00:28 AM

Rick Mantei's latest comment is unfortunate. The questions had some personal commentary attached that might have bothered him, but at the core, they were sound questions. The original comment was helpful, though not as damning as he thought. The jury very well should have decided the question and did. The question remains if the right charge was brought and/or the right sentence.

Posted by: Joe | May 14, 2012 12:14:50 PM

Federalist- Some Defendants waive valuable rights, like that to trial. They get a reward for so doing. Some defendants do not, and so recieve no reward. I don't agree that failure to reward someone for doing nothing is fairly termed a "penalty," and I daresay the guy who waives his right in exchange for a better sentence would be a bit put off if someone who waived nothing, got the same as he did. The US Supremes I thought answered that issue in Bordenkircher.

Greg, the only person who speaks for "the office" isn't me, but I recognize your organization is opposed to pretty much all Minimum Mandatory terms including this one, and I doubt anything I say changes that one bit. Your particular question here assumes a premise with which I don't agree, that an offer made at Time "X" would always be an appropriate offer at Time "Y" (and presumably, at any other time). That just isn't so, including where trials are had. In fact, sometimes it works in reverse, where an initially high offer might get lowered.

As for a "just sentence" the best way I can answer that I think, is that there is almost often more than one single "just" sentence for any given case. For example if "just" for Crime X is 40 months, is 39 unjust? 45? 24? It's not a difference between 3 and 20 years as in this particular example, but my point is that using individual cases to guide policy is, I think, a bit unproductive. Legislatures are often criticized for passing a law in response to a sensational case. Are you not doing the same thing, just in reverse?

Posted by: Rich Mantei | May 14, 2012 12:58:55 PM

Rich: The question is simple. Now - at this point in the procedural process, after all the facts are in and under the assumption that they are exactly as you perceive them to be - is 20 years an appropriate sentence? I'd imagine if you thought so, you'd have just answered, "Yes."

Posted by: Greg Newburn | May 14, 2012 1:06:44 PM

Mr. Mantei, I don't think there's any question that the prosecutor's office has discretion etc. But that it's legal doesn't make it necessarily right. As for whether there is a "trial penalty," you can certainly disagree with the characterization, but it is a fact that but for the trial, Ms. Alexander got more than what she would have if she had pled. You may take the view that that's too bad for her, and, truth to be told, in most cases I would agree with you (I don't weep for very many criminals, and I reserve judgment here.) But that view could result in cases of injustice. Do you max out every single person against whom you bring charges? Obviously not, and no one would suggest that such a thing would be justice--so is justice dependent on what the prosecutor decides to charge out the outset if someone decides to go to trial? If you want to simply say "this is the process and it's what we have," that's fine, but it's a little difficult to say that someone for whom 3 years "would serve the ends of justice" should get 20 without some eyebrows being raised. Citing Bodenkircher doesn't deal with that issue at all.

Basically, your argument seems to be that the result of a Constitutional process is necessarily justice. It's certainly possible to make that argument. But the ipso facto quality to it needs to be acknowledged.

"It's not a difference between 3 and 20 years as in this particular example, but my point is that using individual cases to guide policy is, I think, a bit unproductive. Legislatures are often criticized for passing a law in response to a sensational case. Are you not doing the same thing, just in reverse?"

I have to comment on that too. Legislatures, for the most part, pass laws to deal with general issues, and criminal statutes have to deal with an infinite amount of permutations. Are you really saying that any conduct which happens to fall under a particular statute necessarily means that it is just for that conduct to be punished with, in this case, 20 years in prison?

Posted by: federalist | May 14, 2012 1:56:24 PM

It is well known, including by some who are innocent, that actually demanding certain rights will get you in trouble. This is duly noted as allowed, but if she gets seventeen more years for going to trial, it's a "penalty" in all but an overly formalistic way & we can all be serious adults here, realizing life is hard and all, w/o denying it and dealing in sophistry.

The "just sentence" reply rambles -- with respect -- on, after (for whatever reason) pointing out Greg's organization has a more absolute position than necessary for the position in his specific question. The fact that federalist isn't totally satisfied with your reply is rather telling, given his usual position on things. This all seems to me more evidence of people providing a bit too much cant, from one side or the other. More fog, than light.

Posted by: Joe | May 14, 2012 2:11:22 PM

"The fact that federalist isn't totally satisfied with your reply is rather telling, given his usual position on things."

Ha ha.

I think, however, that Mr. Mantei is to be commended for commenting here. Let's not lose sight of that.

Posted by: federalist | May 14, 2012 2:32:12 PM

I think Mr. Mantei's refusal (or inability) to answer my question speaks volumes.

Posted by: Greg Newburn | May 15, 2012 9:08:06 AM

Well, Mr. Newburn, how about a question for you--why doesn't your organization ever acknowledge some of the driving forces behind mandatory minimums--namely outrageously low sentences for awful crimes . . . .

Take a look at the rap sheet of the guy convicted of killing Jennifer Hudson's family members? Should he have been out on the street?

Posted by: federalist | May 15, 2012 9:51:20 AM

Federalist: Feel free to email me: gnewburn (at) famm .org. Rather than hijack this thread, I'm happy to take up this discussion with you privately (or in another, more appropriate public forum).

Posted by: Greg Newburn | May 15, 2012 10:08:09 AM

Sure sure. I welcome insider commentary, particularly when it allows back/forth, where maybe both sides will learn something. :)

Posted by: Joe | May 15, 2012 11:27:19 AM

I agree sentencing laws are out of control in Florida problem is no one listens that poor girl bet she had a public defender who in my opinion are useless....agrevated professional

Posted by: Robin | Jun 14, 2012 3:34:19 PM

I am a highly interested citizen who is beginning to think very seriously that "justice" no longer matters. It's all politics and finger pointing that seem to count any more. I'm very disappointed in the results of this case. I certainly hope something is done to change this ridiculous law.
Thank you...

Posted by: Breast Reduction Surgery Tips | Aug 13, 2012 11:32:04 PM

I am a criminal defense attorney practicing in Orlando. If the prosecutor had reduced the charges BEFORE trial to agg.assault with a firearm, and if she had gone to trial and been convicted of that agg.assault, the Judge would still have been required to sentence her to 20 years mandatory minimum because the gun was fired. In Florida, agg.assault without a firearm carries a legal(MM) maximum of 5 years. With a firearm, though not fired, there is a mandatory minimum sentence of 3 years. It is the only serious crime that carries the MM3 years for possession of a firearm, instead of the normal MM10 years that the additional factor of such possession requires. The prosecutor before plea or trial could have removed the possibility of the 3 year mandatory minimum by removing the element of the use of the firearm. Since that was not done, once she was convicted after trial of agg.assault with a firearm, the factual finding by the jury that a shot was fired (not merely that a gun was possessed)resulted in the requirement that the Judge sentence her to 20 years mandatory minimum. Every prosecutor I have known has taken the position that once the jury has decided its verdict, they do not have the power to change verdict, unless the evidence did not support the verdict.
If she had a competent attorney, she would have been advised of the chance she was taking by rejecting the 3 year offer. Apparently she was gambling on the jury perceiving her actions as self defense-and that is where one of her problems lay. Many charged with crimes perceive their actions differently than the general population and perceive that their actions are justified, when the general population does not have the same standards. Apparently she believed she had not acted criminally and so rejected a plea offer. Apparently 6 people saw the situation differently. By then the Judge was required by law to impose the 20 year MM. It might be a rigid sentencing structure, but the legislature obviously calculated that there is an increase in danger when a gun is fired when other people are around, over merely waiving a gun around-and that is how the legislature has justified to 20 year mandatory minimum sentence. You might say that there isn't enough room in a MM sentencing scheme to treat each case individually, but then that is the point of the MM sentencing structure.
The time to develop an individualized sentence is before trial. We have very broad discovery rights in Florida. There are no surprizes to the defense about the State's evidence before trial.

Posted by: Christine Warren | Feb 5, 2013 2:39:44 PM

Florida is an unfair state to begin with. There are countless cases of injustice. For example Gregory Campbell, State attorney Daphne Campbell's Son. He was convicted of medicaid fraud although there was mountains of evidence that pointed to 2 other people, one of which fled the country to Jamaica and the other took a plea and they never took his assets. Campbell on the other hand maintained his innocence and cooperated and took his case to trial knowing that the justice system wouldn't fail him got 7 years in prison and 8 years probation. The lead investigator when asked why didn't the go after the suspect that fled being they know where she is, they said we want Campbell. This to me sounds like a setup because Campbell cannot receive medicaid fund and his bank accounts show he was never in the possesion of large sums of money, yet the people who receieved the medicaid money are walking free while Campbell is in prison.

Posted by: John | Apr 28, 2015 1:21:01 PM

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