Rule of Law – Abrams Dicta

Florida Sends More Children To Adult Prison Than All Other States Combined

When I was a law student I worked on a clemency petition for a child who was sent to an adult prison in Florida for 9 years for her first offense. At 12 years old, she entered prison as the youngest inmate in the Florida Department of Corrections. It is worth noting that Florida sends more children to adult prison than all other states in the country combined. As I worked on her clemency petition I learned that in the weeks leading up to her committing the crime, robbery of her grandmother’s home, she had been examined by two psychologists who both recommended that she be given immediate in-patient care. I also found out that the source of her distress was that she was being abandoned by her mother who had run off with a man she had met, dumping the young girl on a grandmother who didn’t want her and who communicated this to her by getting rid of the twin bed the child was sleeping on, forcing the child to sleep on the floor. The state of Florida wasn’t there to help this child. A prosecutor later told me there was no money for the mental health treatment she needed. Instead, the state provided her with a much more expensive 9-year prison sentence as an adult.

I argued the clemency petition before Governor Jeb Bush at the Florida State Capitol

I argued her clemency petition at the state capitol before then Governor Jeb Bush and his cabinet. I told Jeb Bush about her history of abuse and abandonment. How her Mother had left the country and had never once visited her in prison. I told him about how she had earned a GED in prison and showed him her nearly flawless behavior record. I shared with him her statement of regret. I asked him to let her out of the prison where she had been for the past 5 years and showed him the plan for treatment and recovery that we had put in place. As I spoke, Governor Jeb Bush played with the pencils on his desk and rocked back and forth in his giant power chair. He didn’t seem to take much interest. I don’t remember him asking me any questions. When I had finished he politely thanked me for my presentation and nearly a year later sent a notice that he denied her request for clemency.

“Truthfully, I’d be happy to see many more pardons and acts of clemency coming from the President and our Governors.”

As I read the newspaper reports of Donald Trump’s granting a pardon to an unrepentant former Sheriff Joe Arpaio, I think back to asking for clemency for that young woman. Truthfully, I’d be happy to see many more pardons and acts of clemency coming from the President and our Governors. A shift towards a more compassionate criminal justice system in our nation is long-overdue, but that’s not what this is. Instead, it’s a move away from a more compassionate system. It’s nothing more than one tyrant protecting another. Trump didn’t pardon Arpaio because Arpaio made a regretted mistake or because Arpaio has shown himself to be a man deserving of mercy. Arpaio, a man who swore an oath to uphold the law, willfully defied that law and elevated himself to the role of judge, jury, and executioner when he defied an order from a federal Judge. Trump pardoned Arpaio as a way of weakening Judicial authority and letting everyone know that, for those who are on Trump’s team, the Courts and the laws of our nation are not a factor.

“It’s nothing more than one tyrant protecting another.”

I wish that I could say that this is an anomaly in our legal system, but it’s not. Too many times I’ve seen the well-connected and privileged protected by the system while people like the young girl whose clemency was denied by Jeb Bush are eaten alive by the system. It really depresses me sometimes to work in a system that so often seems unfair. I recall the words of a cynical law professor who said that the legal system exists to maintain the class structure in all but the most extreme cases. I fear that soon, even extreme cases of injustice will no longer find a remedy in our legal system.

The latest news in the oddball social and political American landscape is the occupation of a National Wildlife Refuge in Oregon by a group of militants led by the son of nutso criminal cattle rancher Cliven Bundy. This news story rivals the Trump campaign for its absolute weirdness and its appeal to disaffected people in search of a cause.

I find very little of their cause to be the least bit appealing or convincing. I don’t buy their claims of an over-reaching federal government stealing land or that they have some sort of divine or Constitutional right to private possession of public lands which they are free to utilize or extract resources from without restraint. Perhaps more significantly, I completely reject the notion that they have a Constitutional right to engage in armed resistance or rebellion against the United States Government. In numerous places the Constitution rejects the concept of sanctioning armed rebellion. For example, with regarding to Congressional powers, the Constitution says that Congress has the power:

To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; U.S. Const. art. I, § 8, cl. 15

The Constitution explicitly prohibits armed rebellion and defines it as treason when it states:

“Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.” U.S. Const. art. III, § 3, cl.

It is clear that our founding fathers did not contemplate armed resistance and rebellion as a protected political right.

However, there is an issue in this fiasco which does interest me. That is, the sentencing of the two ranchers, a father and son, Dwight and Steven Hammond, for setting fire to public land. A statement by the prosecutor recounting the history of case and the law violations of the Hammands can be found here and is worth taking the time to read. The trial Court judge, following their convictions after a two-week jury trial, imposed relatively short sentences of a year or less upon the two defendants. The government appealed and the Appellate Court found the Judge lacked discretion to impose less than the minimum mandatory sentence. It’s this issue of removing sentencing discretion from the trial Court judge that I find disturbing. I recognize that sentencing guidelines are designed to encourage uniformity in sentencing, but the reality is that not all crimes are the same. Especially in the federal justice system, the mandatory sentences for drug related offenses have resulted in extremely long sentences being imposed upon defendants who may have only had a minor role in the crime. This becomes even more unfair when the low level players often have little valuable information to bargain with prosecutors for a reduced sentence whereas the kingpins often are able to work deals to plea to lesser crimes in exchange for providing information to the government. As a result of these minimum mandatory sentences we now have the world’s largest prison population and the sentences our nation imposes are far more severe than those imposed in the rest of the developed world.

A few years ago I attended a week at the Chautauqua Institution where the theme of the week was Crime and Punishment. One of the speakers I heard was former Federal Judge Nancy Gertner, who is now an outspoken opponent to the federal mandatory minimum sentences that judges are required to impose. Here is what she wrote in a recent publication:

Mandatory minimum sentences distort our criminal justice system. In effect, the legislature is sentencing, when it knows little or nothing about the individual or what may work to deter him in the future. Or the prosecutor is sentencing, when he or she sees only one side — the offense — and rarely knows much about the defendant’s life. The judge is effectively a bystander. And while the judge’s decisions must be transparent, and are subject to appeal and public scrutiny, the prosecutor’s are not.

Our system of government contemplates three equal branches: The Executive (President); The Legislative (Congress); and the Judiciary. I can’t help but feel that the American judiciary has not only been weakened in the past generation, but is quickly on pathway towards being irrelevant. We now are faced with a super legislature, fueled by massive corporate donations, that is rapidly consolidating its power and intruding into and successfully limiting the function of both the Executive and Judicial branches. Our judges no longer have authority to hear the vast majority of civil contract claims due to the Federal Arbitration Act. These claims are now decided by corporate-run arbitration where the records are private and there is no right to appeal. Due to legislatively imposed mandatory minimum sentences we have lost the right as people to have a judge hear our case and determine a fair sentence based upon the facts presented at trial, including mitigating circumstances. Instead, our sentence was predetermined by politicians, who never heard our story and who may be getting campaign contributions from the for-profit prison industry.

If you think I’m over-exaggerating consider this: The leader of the group in Oregon is the son of Cliven Bundy, the man who after two trials was found to owe the United States government in excess of $1 million dollars in fees. A federal judge twice permanently prohibited Mr. Bundy from grazing his cattle on federal lands, but he continued to ignore the order with impunity. When the judge ordered seizure of Mr. Bundy’s cattle to pay the debt owed to the government, Mr. Bundy basically took up arms against the government. Two years later, neither the Executive branch nor the Legislative branches have done anything to enforce the Judge’s order. Be aware, Courts do not control the police or law enforcement, they must rely upon the executive branch of government to enforce the law. In this case, due to the lack of action by the other branches of government, the judiciary is rendered absolutely impotent. This is something that should frighten us all and is much more of a threat to American democracy than some nut jobs inhabiting a bird sanctuary.

Clemency Denied and a Pardon Granted: Equal Justice in America?

The Real Constitutional Threat In The Oregon Militia Takeover