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There is a great deal of discussion in the news recently regarding a concept called "minimum mandatory." This had its birth in the 1980s, when legislative bodies sought to limit judicial discretion in the context of sentencing criminal convicts. There were perceptions, at least, of inconsistent sentencing, and some desire to establish better predictability. When a judge has unlimited discretion in decisions, there is much flexibility and less predictability. As discretion is constrained, consistency and predictability may flourish. Either measure of discretion may allow for outcomes that are seen by the public as unacceptable, a person receiving too light or too stringent a sentence.
Similarly, the Florida workers' compensation system has experienced various efforts over the last century to limit or define attorney's fees, and to focus judicial discretion. Those efforts largely began in the 1970s with perceptions of unpredictability. The Legislature limited fees to instances of "bad faith," then adopted formula and the Judicial legislation of "factors" from Lee Engineering. There was tinkering with those factors, and an eventual 2003 departure from the "presumptive" fee analysis. Then came Murray v. Mariner, 995 1051 (Fla. 2009), and a side-step of the constitutionality question, followed by the Court's most recent analysis in Castellanos v. Next Door Company, 192 So. 3d 431 (Fla. 2016).
Though the Court concluded in 2016 that "a reasonable attorney's fee has always been the linchpin to the constitutionality of the workers' compensation law," the history supports that there have been various statutory enactments on the topic. The Court's 2016 conclusion was essentially that a fixed fee schedule, eliminating judicial discretion, was an irrebuttable presumption and thus unconstitutional. There is the potential that judicial discretion might be viewed similarly as regards any statutory effort directed at constraint or predictability.
It is perhaps possible that any definition or constraint might result in an outcome that is viewed by some as inappropriate, while the absence of constraint on discretion might similarly work an outcome deemed equally inappropriate from some perspective. The fee analysis in Castellanos v. Next Door was a total fee of $164.54 resulting in an effective hourly rate of $1.53. The Court noted that low fees had been characterized as "manifestly unfair." Might a "mandatory minimum" likewise be characterized?
There are sound arguments both for and against consistency. Furthermore, it is likely that unfettered judicial discretion can perhaps either prevent or cause injustice, as perhaps can unyielding absence of discretion. Therefore ideas like mandatory minimums have advocates and detractors. Those who support and oppose such laws can each likely cite anecdotal examples in which they perceive the injustice in either too little or too much judicial discretion. For several years, I have wondered whether such minimums are "irrebuttable presumptions," in the context that the Florida Supreme Court expanded in Castellanos in 2016.
Recently, two examples of mandatory minimums have been in the news, and are perhaps worthy of consideration. However, it does not appear that the "irrebuttable presumption" constitutional challenge has been raised in either instance. Neither are within Florida, and so perhaps not subject to such a presumption analysis.
Last October, according to the Gazette, a truck driver was sentenced in Colorado regarding a serious automobile accident. The vehicle brakes failed, and the driver reportedly did not avail himself of a "runaway truck ramp" that is a common tool in the mountains. Four people died in the eventual collision that stopped the truck, and in December the twenty-three-year-old was sentenced to 110 years in prison. The judge was quoted regarding the sentence and stated he was required to impose the minimum penalties and "to order those sentences be served consecutively." According to People, about 5 million people thereafter signed an online petition urging intervention in the case to alter the sentence. They perceived injustice from the constraint on judicial discretion.
Thereafter, Colorado "Governor Polis issued a clemency letter and executive order announcing that he had reduced Aguilera-Mederos' sentence to 10 years." The Governor noted that the driver was not "blameless" in the various injuries and deaths. However, he stated the "sentence is disproportionate compared with many other inmates in our criminal justice system who committed intentional, premeditated, or violent crimes." Thus, in a seemingly broad population, a perception of an outcome deemed unacceptable and yet predictable. The Colorado Governor noted that "there is an urgency to remedy this unjust sentence and restore confidence in the uniformity and fairness of our criminal justice system," leading to his decision to commute the sentence through Executive action. I note the two seem curiously conjoined in that sentence, "uniformity" and "fairness."
Shortly thereafter, the British Broadcasting Corporation (BBC) reported on a judge "reassigned" following his reversal of a conviction for a sexual assault crime. In that instance, an 18 year old, who had "only recently turned 18 prior to the" assault was charged with "sexually assaulting a 16-year-old" who "became intoxicated at a party," was "unconscious and awoke to a pillow covering her face" in the midst of an assault. The Judge found the defendant "guilty of sexually assaulting a 16-year-old," which "carried a mandatory minimum sentence of four years."
However, the judge later concluded that "the minimum sentence (4 years) was 'not just,'" and therefore found "'that the People failed to prove their case' on the one charge, and reversed the guilty verdict to not guilty." The judge said that "the 148 days spent in jail . . . was "plenty of punishment" in that alleged, proven, and then overturned assault. Some noted that the mandatory minimum removed the judge's discretion in sentencing. Others complained the decision "sends a chilling message to other rape victims." Notably, however, the judge there overruled the "minimum" sentence and the result was a public outcry resulting in his reassignment to other judicial duties.
Similarly, National Public Radio reported in 2018 regarding a case of sexual assault, and a recall effort regarding the judge. The potential punishment in that instance was 14 years. The judge imposed a sentence of 6 months, of which 3 months was actually served. There was a public outcry, and that judge thereafter similarly stopped hearing criminal cases. Some saw a "threat to the independence of the judiciary." Others perceived a "precedent" in the short sentence that was "dangerous," and sought to recall the judge. Arguably, each perceived shortcomings in the legal system.
There seem to be perceptions of either too much or too little discretion.
The reader can consider the interests of predictability and uniformity that may support the concept of unfettered, diminished, or eliminated judicial discretion. The involvement of Executive commutation in sentencing and reconsideration of guilt in impacting the effect of legislative enactments is also of interest. In a broad sense, however, there appears to be some lack of confidence in the American legal system; Willow Research reports "public confidence is low," according to polling. However, Gallup reports that confidence in the judicial branch (54%) is higher than the legislature's (44%) or the executive's (37%). These appear to be broad conclusions that may include perceptions of various particular issues and individuals.
Are mandatory minimums, reduced judicial discretion, burden or benefit for the judicial system? Do they support or detract from public confidence? Are they, in fixing a sentence from which there is seemingly no escape, an irrebuttable presumption in an unconstitutional sense? Do states apply such "presumption" analysis in constitutional regards? The reader may find interesting United States v. Haymond, 530 U.S. 466 (2018) on the subject of minimums, judicial authority, and the role of juries. It does not address the irrebutable presumption, but does conclude the minimum unconstitutional in a limited instance.
By Judge David Langham
Courtesy of Florida Workers' Comp
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About The Author
About The Author
-
Judge David Langham
David Langham is the Deputy Chief Judge of Compensation Claims for the Florida Office of Judges of Compensation Claims at the Division of Administrative Hearings. He has been involved in workers’ compensation for over 25 years as an attorney, an adjudicator, and administrator. He has delivered hundreds of professional lectures, published numerous articles on workers’ compensation in a variety of publications, and is a frequent blogger on Florida Workers’ Compensation Adjudication. David is a founding director of the National Association of Workers’ Compensation Judiciary and the Professional Mediation Institute, and is involved in the Southern Association of Workers’ Compensation Administrators (SAWCA) and the International Association of Industrial Accident Boards and Commissions (IAIABC). He is a vocal advocate of leveraging technology and modernizing the dispute resolution processes of workers’ compensation.
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