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June 3, 2016

Appellate judges certify to Florida Supreme Court whether state sentencing scheme violates Due Process Clause or Eighth Amendment

A helpful reader alerted me to a remarkable decision handed down earlier this week by the Florida's Fourth District Court of Appeals. The reader provided this helpful summary that I could reprint here (with my emphasis added):

The Fourth District Court of Appeal wrote a decision that (in essence) asks our Supreme Court to revisit the constitutionality of our sentencing scheme, a scheme that gives judges complete discretion to sentence a defendant anywhere between a calculated "lowest permissible sentence" and the statutory maximums stacked end to end. This system of nearly unlimited sentencing discretion is everything Judge Frankel decried, and the sentence the court reviewed is a case in point: the defendant was 55 years old, he had no prior record, and his "lowest permissible sentence" was 23.7 months in prison.  For trying and failing to steal three boat motors he was sentenced to 35 years in prison (the statutory maximums stacked end to end), effectively a life sentence.

Judge Gross wrote a thoughtful and scholarly concurring opinion that begins with the history of sentencing in Florida, talks about the evils of unfettered sentencing discretion, and ends with Judge Frankel and his modest proposal that judges be required to explain their sentencing decisions (at present they need say nothing).

Here is the question the court certified to Florida Supreme Court as one of great public importance:

Does a sentence within the statutory maximum under the Criminal Punishment Code violate either the Due Process Clause or Eighth Amendment when it is significantly greater than the lowest permissible sentence on the defendant’s scoresheet or the offered plea and grossly disproportionate to the median sentence imposed for similar crimes within the jurisdiction?

Alfonso-Roche v. Florida, No. 4D13-3689 (Fla. 4th DCA June 1, 2016) (available here).

I do not know enough about Florida's appellate procedures to know if the Florida Supreme Court will now have to, or at least is now very likely to, take up these important constitutional issues.  But for anyone and everyone working in state or federal systems worried about the exercise of unfettered sentencing discretion, this Alfonso-Roche decision is today's must-read.

June 3, 2016 at 10:13 AM | Permalink


Meanwhile, in LA:


Posted by: Joe | Jun 3, 2016 10:19:45 AM

It seems to me that the underlying problem is the entire concurrent vs consecutive distinction. Imagine a world where that distinction did not exist and all sentences were to run concurrently. It strikes me that such a world would have two salutatory effects. First, it would reduce the incentive of prosecutors to stack charges because there would be no real world impact to doing so (there still might be some symbolic impact so I don't think it would eliminate the practice entirely. Second, it would prevent judges from stacking sentences.

We see this exact same problem in child porn cases where some prosecutors view every single picture as a separate charge leading to hundreds and sometimes thousands of separate charges which then lead to--in some rare cases--thousand year sentences.

The more I have tossed the idea around in my head the firmer my conclusion becomes that there is no genuine public policy basis for the consecutive vs concurrent distinction. It's a pure power grab by the judges and the prosecutors at the expense of the rule of law.

Posted by: Daniel | Jun 3, 2016 10:49:51 AM

I think the issue is the length of sentences overall and the over-emphasis on "general deterrence" and focus on "what's to stop a defendant from doing it again?" In the US, sentences of decades or even centuries (think Madoff) are not unheard of. We are, simply put, more punitive. But we lack any sound empirical or theoretical justification for this punitiveness, save for its good politics. General deterrence sounds good in theory but no one really has a handle on when/whether/how it works. There were nearly 11.7 million arrests last year and 2 million more people will carry the life long stigma of being called a "convicted felon." Yet, crime still happened. Let's talk about economic crime because its usually committed by the more educated folks: Milken got a 10 year sentence, at the time the longest sentence handed out to a white collar offender. The early-to-mid 1990s saw a host of SNL prosecutions. And remember this is when the statutory max on bank/mail/wire fraud and other offenses was less than half of what it is today (today 30 years back then was closer to 5, 10 or 20). The early 2000s saw a host of corporate prosecutions. Followed by Madoff and Stanford Allen and many others. The sentences range from a few decades to a few centuries (Sholam Weiss -- 845 years for insurance fraud). One has to wonder if there should simply be an overall cap for sentences non-violent offenders. Really, are consecutive or even concurrent sentences of such a long duration serving any purpose other than getting good headlines for judges and prosecutors alike?

Posted by: Ex-Economist | Jun 3, 2016 1:22:36 PM

There can be a solid basis for consecutive sentences (of course, as with most other things about sentencing, it is left to judicial discretion). One reason for consecutive sentences is to represent the distinct harm caused by multiple acts, particular when there are multiple victims or multiple acts. To use a non-violent example, somebody who goes to multiple businesses passing forged checks probably deserves more punishment than the person who goes to one business. Admittedly, some statutes are written in a way that allows for the arbitrary multiplication of counts (which could be fixed by re-writing the statute, perhaps making it an enhancement to possess more than a certain quantity of child porn).

Hard to do a legitimate analysis of deterrence without admitting two major flaws in our criminal justice system, the lack of certainty in punishment and the lack of swiftness (both thought by many to be key components of deterrence). When punishment is neither sure nor swift, there is a tendency to impose newsworthy sentences to compensate.

Posted by: tmm | Jun 3, 2016 2:52:51 PM

"One reason for consecutive sentences is to represent the distinct harm caused by multiple acts, particular when there are multiple victims or multiple acts."

Is the best way to effectuate your concern through lengthier sentences? In other words, I agree with you that distinct harms need to be recognized in distinct ways. But why do those distinct harms need to be embodied in distinctive sentences? One can imagine a system where a prosecutor is allowed to still stack charges and a jury can still convict the person of such charges but the judge cannot impose consecutive sentences. In such a system a distinct harm is still validated via the judicial system in a symbolic and forma sense but not in a substantive form.

If *recognition* of the harm done is the primary point why wouldn't such a system satisfy?

Posted by: Daniel | Jun 3, 2016 3:30:39 PM

I agree with Daniel. Also, that is normally what happens. A conviction for multiple counts does not necessarily mean the sentences will be consecutive (or stacked). As for certainty or swiftness, I think certainty trumps swiftness. In the Enron investigation alone, there were more than 100 participants who were not charged. And in every offense there are offenders who are either not charged, due to limited prosecutorial resources, or who get a deal due to cooperation. General deterrence in the day and age of the internet should be the least important concern -- the average man cannot absorb the thousands of daily sentences passed down each day. The rest, retribution (usually served through the MVRA in economic offenses), and incapicitation etc (jail term), are legitimate but need to be scaled down. There is no justification for a 30-40-50 year sentence for theft offenses.

Posted by: Ex-Economist | Jun 3, 2016 3:59:19 PM

Recognition in a different sense -- the retribution component of criminal punishment, committing two forgeries is worse than committing one forgery and merits a longer punishment. When the sentencing range is broad enough, there is no need for consecutive sentences. A narrower sentencing range, on the other hand, limits the ability to increase the punishment to reflect multiple distinct criminal acts. If a judge could impose life without parole for each count, there would be no need for consecutive sentences.

While their is a legitimate cap on the maximum for theft, I am not sure that the same applies to violent offenses. Faced with a serial child molester who molested multiple children on multiple occasions, is it inappropriate for a judge to stack five or six fifteen-year sentences to require the offender to serve thirty years before he becomes eligible for parole. Not allowing consecutive sentences permits offenders to commit multiple additional acts with no additional consequences.

Posted by: tmm | Jun 3, 2016 4:24:24 PM

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