Tuesday, September 17, 2013


Remarks delivered at the annual meeting of the Sarasota/Manatee 
chapter of the ACLU on March 16, 2013

  I come to you this afternoon from Stetson University College of Law where I have been teaching for the last four years. It is important to me to teach because it reminds me of the potential of the law, our country and our constitution, and helps me to combat the biggest enemy, which is cynicism.

    Thirty years ago I was a student at New College and I had a decision to make. On the one hand I could have gone on to graduate school and pursued a career in academics and teaching. This seemed like a beautiful option and I gave it strong consideration.

   On the other hand, I could pursue a career in the law. And my thinking was that I had lived a privileged existence up until then. I believed that I had a duty to my community to represent those who had not been given my advantages. I honestly believed in our country’s bill of rights but also knew that there was progress that still needed to be made. I was not naïve enough to think that I would change the world, but I was idealistic enough to believe that I had to try.

    So I went off to law school with the goal of returning to Sarasota and Manatee counties to work for the Public Defender’s office. In retrospect I can honestly say that I have no regrets about my career path. I spent twenty-three years at that office and did the best that I could for my clients and for this area. But certainly now, thirty years later, I have to wonder if any progress was made.

      My first assignment in 1985 was to represent homeless men arrested for various offenses like loitering and obstruction and public intoxication. We had problems in the downtown corridor, the Police Department was under orders to arrest offenders, our jail was full and there were no shelters available. Does any of this sound familiar? Has Sarasota really made any progress at all ? The biggest change that I have seen is that now, while homeless men are still arrested and fined and jailed, I am also aware of the ever growing population of homeless women and children. And despite the fact that I have worked for years for an agency whose mission is to end homelessness, there is still not a single family shelter that I can refer these families to.

      In 1986, I was promoted to the felony division and entered the front lines of the so called War on Drugs. It was in the 1980’s and 1990’s that the Florida legislature started passing increasingly harsh laws and building increasingly large prisons. Each year the penalties became worse, each year our law enforcement agencies became more militarized, each year the Department of Corrections took an ever increasing share of our State’s budget, and each year our Courts grew increasingly hostile to the rights of the individual citizen guaranteed by our Constitution.

    For the past quarter century I have gone to court nearly every day and seen thousands of our brothers and sisters, sons and daughters, shipped off to Florida penitentiaries. This exodus of mostly young men and women has decimated the heart of our community at an incalculable cost to us all. As I speak with you this afternoon more than 100,000 of our fellow citizens are incarcerated in the jails and penitentiaries of the State of Florida.

And when our citizens arrive at prison, they are not provided with treatment for their addiction, they are not provided with education or skills for their rehabilitation, and they are ultimately set up for failure by being releaed back to our area without the skills to succeed, but with the stigma of their incarceration which too often prevents any type of reentry and reintegration. As a society, what do we expect will happen to them? This phenomenon is described all too well in this book, FACING THE US PRISON PROBLEM

But meanwhile the grip of addiction has grown ever tighter because there is little or no treatment available, particularly to the indigent. Our laws remain so harsh that merely being in possession of a single pill bottle of pain killers can result in a 25 year minimum mandatory sentence, and not only is the Department of Corrections the largest share of our State’s budget, they have now announced that they are well over budget for this coming year.

The other consequence of this ongoing war on drugs is that it has necessarily become a war on our civil liberties. When we criminalize addiction, and when we prioritize enforcement of draconian laws, we incentivize lawless behavior by those who we entrust to protect us—our law enforcement officers, prosecutors and judges.

The ongoing struggle in the criminal justice system is between the rights of the individual and the power of the government. The reason we demand a bill of rights, the reason we think it is important to have a fair trial by an impartial jury, the reason we appoint counsel to those who cannot afford it, is because we believe in the dignity of each individual human and we believe in the promise that no one should have to sacrifice their liberty to the State unless the Government can lawfully establish beyond any reasonable doubt.

But day after day, as I go to Court, I am given reason to doubt these promises. Too often I have witnessed the powerless being targeted, too often I have witnessed prosecutorial discretion being abused, and too often, despite the fact that the law may be clearly on the side of my client, I have seen Judges ignore that law or completely disregard it.
   My poor wife has heard me complain on many occasions, “There is No Law!” But if we cannot depend upon those charged with enforcing our laws to follow those same laws, even when inconvenient, then it casts doubt upon our entire justice system

As my career continued, I began to defend the death penalty cases in this circuit. I have had the opportunity to go around the State and train attorneys and judges. I handled my first capital case in 1989 and I continue to work in this field to this day. This afternoon I am here to tell you that our death penalty laws are irretrievably broken. In saying this I want to acknowledge the pain and suffering that the surviving victims of homicide cases suffer. One reason we need to abolish the death penalty is to stop using that pain as political leverage, and to stop holding out the prospects of an execution date in the future as some sort of closure that may never occur.
       But this is the reality—there is no functional death penalty and there never can be, not as long as we understand that as human beings, we are incapable of making this decision in any type of fair and consistent manner, without making horrible mistakes along the way. In Florida right now we have over 400 people on Death Row, the second highest total in the nation. Just to have a Death Row is costing us, at a minimum, an extra 50 million dollars a year above and beyond the cost of life imprisonment. Florida leads the nation in exhonerations. We have had more innocent people sentenced to death in this state then any other, and we make more mistakes then any other. 
     In 2009, Maryland instituted new “reforms” that were supposed to fix the system. Instead, the reforms made the system even more dysfunctional and costly. It proved what we already know – the death penalty cannot be fixed. In fact, the lead architect of the reforms, Sen. Bobby Zirkin, reversed his opinion and voted FOR repeal, saying "We could execute an innocent person, and that weighs on my conscience too heavily not to cast a [yes] vote. Maryland therefore became the Sixth State in six years to abolish capital punishment. It is time for Florida to join this movement, and to reallocate the resources we are using on the death penalty towards overall improvement of our criminal justice system.
Apart from abolition of the Death Penalty, are there other solutions? Do they exist? How do we bring sanity to our criminal justice system?  And how do we do this in an age where resources are limited?
We start by asking some simple questions
     What is that we are trying to accomplish?
     What resources do we have?
     How do we best allocate those resources?

So for instance, let’s take the issue of homelessness?
What is it that we are trying to accomplish?
It seems to me that what we are trying to accomplish is a safe and secure shelter for those who need one, which would then reduce the impact of homeless citizens upon the downtown corridor.
  In Pinellas County the Sheriff told the County Commission that they could spend millions of dollars to expand his jail, or they could help him open a shelter that is now known as Pinellas Safe Harbor: “The Harbor” came into being as a result of a series of partnerships involving the Pinellas County Sheriff’s Office, the City of St. Petersburg, Pinellas County Government and numerous homeless service providers in Pinellas County.  This group saw the need to better serve the chronically homeless, keep them out of the county jail and the criminal justice system, and the Harbor also operates as a portal of re-entry for inmates coming out of jail or prison.

With drugs, it seems to me that what we want to accomplish is to prevent addiction and provide treatment to those who are in its grips. Over the past 40 years we have demonstrated beyond any doubt that the criminal justice system is not getting this done. I am not the first one to say this but it bears repeating at every juncture—we need to treat drugs as a public health problem, not a criminal justice problem, and shift our resources into treatment and away from incarceration.

We are not going to accomplish this overnight, and meanwhile we are faced with our present system of laws that has removed all discretion in sentencing from our judiciary and placed it in the hands of prosecutors. There is a bill in the legislature this year that could be an important first step, we call it the “safety valve” bill.
   This bill is part of a movement towards “Smart Justice.” And the proponents of Smart Justice are both liberal and Conservative, Democrat and Republican.

But what do we do about our civil liberties? How do we turn our rights from words on paper into power? We do it through accountability.

This year, actually on March 18, we celebrate the 50th anniversary of perhaps the most important of all of the United States Supreme Court decisions. An inmate in a Florida jail, perhaps one of the most powerless people in our society, read the words of the Sixth Amendment to the United States Constitution. And he saw these words: In all criminal prosecutions, the accused shall enjoy the right to have the Assistance of Counsel for his defense.”

This inmate appeared in Court and told the Judge he was too poor to afford counsel,
The COURT: replied: I am sorry, but I cannot appoint Counsel to represent you in this case. Under the laws of the State of Florida, the only time the Court can appoint Counsel to represent a Defendant is when that person is charged with a capital offense. I am sorry, but I will have to deny your request to appoint Counsel to defend you in this case.
The inmate replied: The Constitution says I am entitled to be represented by Counsel.
    From his prison cell, this inmate took up a pencil and prepared a handwritten petition to the United States Supreme Court. And as Robert Kennedy later said, “if Clarence Gideon had not prepared this petition the vast machinery of American law would have gone on functioning undisturbed. But Gideon did write that letter; the court did look into his case; he was re-tried with the help of competent defense counsel; found not guilty and released from prison after two years of punishment for a crime he did not commit. And the whole course of legal history has been changed.”

The course of legal history changed because every day, criminal defense attorneys are in the courtrooms of our State, fighting to protect the constitutional rights that we all share.

 But we need to hold the players in the criminal justice system accountable

The last vestige is our juries, our citizens, and our voters.

Let our legislators know that we want a different approach, that from this point forward we want to be smart on crime and use our resources not only to protect our communities but to strengthen and improve them.

Demand accountability from our judiciary—ask them if they will uphold our constitution, and ask them what that means to them.

Demand from our prosecutors assurances that they will seek justice, not convictions, that they will be fair in all their dealings, and that they will hold Government accountable to the same degree they hold citizens accountable.

And finally—be engaged citizens. Pay attention. Vote. Show up for jury duty, and when you do, hold the Government accountable, make sure you are satisfied with their work, make sure that the Citizen receives all of the protections that he or she is entitled to.

When we demand this type of engagement from all the players, truly we can restore sanity to our criminal justice system.

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