December 9, 2005 - Daily Business Review (US) Criminal Justice: Pain Just Beginning By Julie Kay, Daily Business Review

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A little bottle of pills and Florida's tough drug sentencing law have imperiled Penny Spence's hopes of becoming a nurse. Her case, critics say, illustrates why the law needs to be changed.

Late one night last January, the 33-year-old Pembroke Pines woman was driving home from her waitress job, exhausted from working all night and caring for her ailing mother all day.

She veered off the road and hit a tree. Though she wasn't hurt, three Coral Springs police officers responded to the accident, including a SWAT team member. The SWAT officer spotted a pill bottle in her purse, reached into the car and seized it. It turned out to be filled with Percocet pills.

Spence told the police that she had gotten the pills from her mother but had no prescription for them. She was using the narcotic pills, she said, to self-treat a painful back condition. She had no prior criminal record, and officers did not suspect she was intoxicated or impaired in her driving.

But because she had 48 pills, which weighed 42 grams, Spence was charged with drug trafficking -- even though Spence insisted the pills were for her personal use.

Under Florida's mandatory minimum laws for drug offenses, trafficking charges are triggered by drug weight, without consideration of intent to distribute or prior record. If a person is arrested with more than 25 pounds of marijuana, more than 28 grams of cocaine or more than five Percocet pills -- which typically consist of 99 percent Tylenol -- law enforcement authorities may bring charges of drug trafficking rather than mere possession. Prosecutors have the discretion to charge up or down.

If convicted of drug trafficking, a defendant faces a mandatory sentence of at least three years in prison. The mandatory minimums rise for larger amounts. Those possessing 150 kilograms of cocaine or 30 kilograms of OxyContin or morphine -- the equivalent of about 33,000 Percocet pills -- are subject to a mandatory minimum of life.

Spence is facing 25 years -- unless she accepts a deal offered by Broward County Assistant State Attorney A. Theodore Daus III. Under that deal, she would get two years of house arrest in exchange for a guilty plea. But then Spence would have a drug trafficking and felony record. That would kill her hope of becoming a nurse.

"This has completely transformed my life," Spence said. "I feel the way the laws are written is too harsh for someone like me, a nonviolent first-time drug offender. That's what drug court and drug treatment was set up for."

The Washington, D.C.-based Families Against Mandatory Minimums said Spence's case demonstrates what's wrong with mandatory minimum drug laws across the country. The organization argues that such laws give prosecutors too much discretion and judges too little.

"I think the situation points out how a one-size-fits-all sentence doesn't work," said Laura Sager, the group's national campaign director. "The punishment in this case simply does not fit the crime." Sager contended that the prosecutor is overreaching, and the law doesn't allow the judge to serve as a check on prosecutorial discretion.

But prosecutor Daus expressed amazement that anyone would criticize the house arrest deal he offered Spence -- something not all narcotics defendants receive.

"If I had said, 'She's getting 25 years in prison, there's no deal,' you'd have a good story,' " Daus said. "But I think I made her a fair deal. She would have no prison time. It shows the system does work. I think [FAMM] should be giving me an award."

Spence, he said, "just wants to have her cake and eat it too."

Sager disagreed. "This charge will follow Penny for the rest of her life," she said. "The consequences are severe for future employment. The prosecutor is using the mandatory minimum as a bargaining tool to get a guilty plea."

Broward has a specialized drug court that has served as a rehabilitative model for the state. But under state law, only those charged with drug possession, not drug trafficking, can be referred there.

Critics say Spence's case also highlights disparities in how the justice system handles different people accused of drug offenses.

Two years ago, part-time Palm Beach resident Rush Limbaugh came under investigation after he was accused of illegally purchasing and possessing thousands of powerful prescription pain pills -- including OxyContin, the so-called hillbilly heroin -- worth hundreds of thousands of dollars. He admitted a drug addiction and entered a treatment program for several weeks.

Yet Limbaugh so far faces no criminal charges in Palm Beach County. His Miami attorney, Roy Black, has waged an aggressive campaign to prevent authorities there from gathering evidence in the case. The state's investigation is continuing.

Costly To Taxpayers

Mandatory minimums for drug crimes gained popularity throughout the country in the late 1980s as part of the burgeoning war on drugs. Politicians promised that such laws would deter crime. Mandatory minimums were adopted in nearly every state, and on the federal level as well.

The laws give prosecutors more power in charging crimes, and take sentencing discretion away from juries and judges. While juries still decide on guilt, they and the judges do not decide sentences. Those are pre-ordained by a schedule of mandatory minimums.

Prosecutors often use mandatory minimums to push defendants into accepting plea deals. Defendants in many cases are forced to plead guilty to crimes they did not commit rather than face harsh prison sentences, critics say.

But as jails and prisons have become packed with first-time and relatively minor drug offenders, mandatory minimums have lost some popularity. That's largely because the bulging prison and jail population of drug offenders is becoming too costly to taxpayers.

Various mandatory minimum drug laws were rolled back in Michigan, Louisiana, Indiana and Connecticut. With FAMM leading the charge -- and making its appeal to save tax dollars -- efforts are under way in New York and Michigan to further amend the laws.

On the federal level, the U.S. Supreme Court last January overturned the federal mandatory criminal sentencing system on Sixth Amendment grounds, and ordered that the guidelines were to be used by judges as advisory only. Legal experts say judges still are generally following the guidelines.

In Florida, however, there is no momentum to change the mandatory minimum drug laws. In fact, there are frequent efforts by lawmakers to enact new mandatory minimum laws.

"There are plenty of Floridians who are first-time offenders and are victims of these laws," said Robert Batey, a criminal law professor at Stetson University in St. Petersburg and Tampa Bay chapter president of FAMM. "But there is no legislation afoot to change these laws that I know of."

The mandatory minimum laws continue to enjoy bipartisan support. State Rep. Ari Porth, D-Coral Springs, who is also a prosecutor with the Broward state attorney's office, said he supports mandatory minimums, as does Rep. Dan Gelber, D-Miami Beach, a former federal prosecutor.

"As a prosecutor, I like the idea of having control," Porth said. "It takes control from the judge and offers consistency throughout the state," Porth said.

"Generally I support them," Gelber said. "However, there need to be escape valves that reflect the appropriate circumstances."

A Break On Bond

But FAMM argues that the mandatory minimum drug laws lead to gross injustices. It points to the case of Tampa resident Richard Paey. The wheelchair-bound, chronic pain patient was arrested for drug trafficking last year after filling dozens of prescriptions for pain pills through an out-of-state doctor.

Paey chose to fight the charge rather than accept a plea deal and was convicted. The father of three, recently diagnosed with multiple sclerosis, is now serving 25 years in prison. He receives his pain medication in prison by morphine pump.

Spence's case is equally compelling, her supporters and FAMM representatives say. Her sister, Chrystal Weaver of Pembroke Pines, has been meeting with lawmakers and telling them Penny's story to try to persuade them to change the law. She is helping start a South Florida chapter of FAMM.

At the time of Spence's arrest, she was the main caregiver for her ill mother, who suffered from Parkinson's disease and has since died. In addition, Spence argues that police may have violated the law by reaching into her car and removing the pills from her purse. She was not tested for intoxication.

Spence spent one day in Broward County Jail before posting bond. She is fortunate in one respect. Broward Circuit Judge Susan Lebow let her bail stand at $2,000, the bail amount for a drug possession charge. That was Spence's original charge before it was upgraded to trafficking. If the bail had been set at a standard amount for drug trafficking, it would have been $500,000, and Spence would still be in jail.

Weaver originally called Roy Black to represent her, but learned that his fee was $100,000, which she couldn't afford. She eventually hired Miami attorney David Edelstein, who charged her $20,000 to handle the case. Edelstein did not return calls for comment.

South Florida legal experts say Spence was unlucky to be arrested in Broward, where State Attorney Michael Satz is known for his hard-line stance on drug defendants.

"There's no question that Mike Satz is tough on these types of crimes," said Michael Pasano, president of the criminal section of the American Bar Association and a partner at Zuckerman Spaeder in Miami.

Charles B. Morton Jr., Broward's chief assistant state attorney, defended his office's policy on drug offenses. A prosecutor, he said, "may get a reputation as being tough. But I don't see this office as unfair or unjust in any way in regard to mandatory minimums. We take into account the background, character, record and surrounding circumstances of every case."

Pasano noted that even in Broward, defendants face "the luck of the draw" in which prosecutor handles their case. "You can get a good or bad prosecutor in any county. And they are the ones who make the charging decisions."

Weaver said she and her sister still aren't sure whether they will accept prosecutor Daus' deal. They want the case referred to drug court, which is designed for first-time drug offenders. There, defendants are offered drug treatment and probation as alternatives to prison and house arrest.

But under the mandatory minimum laws, Spence is ineligible for drug court, Daus said.

"A law that makes you plead guilty to something you didn't do is wrong," Weaver said. "Penny is not a drug trafficker. She should be able to plead guilty to possession. That's a fair thing to do."

"Think about it," Weaver added. "If you have a bad toothache and a friend gives you five pain pills to tide you over and you're unlucky enough to get pulled over by cops, you're going to jail. Maybe for years."

Julie Kay can be reached at jkay@alm.com or at (954) 468-2622.

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