WITHHOLDING JUSTICE: REPAIR THE SYSTEM

Judges Must Use Power Wisely Or Risk Losing Descretion

Florida judges' discretionary authority to withhold adjudication in
felony cases is a powerful tool for good purposes. But that authority,
as outlined in The Herald's Justice Withheld series, also can be
applied -- or not -- so unevenly as to border on capricious, thus
abusing its intent: To give first-time felons a second chance. Judges
must be more judicious in how they use this authority, lest they risk
losing it.

The Herald's Manny Garcia and Jason Grotto analyzed by computer almost
800,000 felony cases filed between 1993 and 2002. Statewide, about one
in three felons who plead guilty gets a break, although even with
withholds criminals are punished and must follow court instructions.
Withholding adjudication means no criminal record, which improves
chances of getting a job.

Racial differences

Withholds don't apply to serious crimes like murder. They often are
given in drug-possession and drug-sale cases where addiction is a
factor and treatment is part of the plea deal. But the series shows
that withholds also are used for crimes that involve theft or
violence, such as assault. And some repeat violators get withholds
four and five times.

The series found that Florida still has two kinds of justice: black
and white, though the fact that black felons get fewer withholds may
relate as much to economics as to race. If you can afford bail and a
lawyer, you may be more likely to hold out for a plea deal and have
adjudication withheld.

Just as troubling are withholds in pleas involving rape, child sexual
abuse and child pornography. Nearly one in four convictions is cleared
in child-sexual assault cases. Yes, prosecuting sexual offenders,
especially those who assault children, can be tough, and some
witnesses can be unreliable or reluctant. But why are withholds part
of these cases at all? Sexual offenders rarely are one-time violators,
and rehabilitation is difficult. Erasing a conviction, assigning the
felon to treatment, then crossing your fingers won't do. Justice is
capricious when porn peddlers fare better in court than their
customers: About eight in 10 Internet distributors of child
pornography get withholds while four in 10 people who possess it get
the break. This is wrong.

Establish standards

It's good that Florida offers mercy with justice. But withholds are
applied so erratically that a good policy is distorted. Prosecutors
must establish basic standards for when a withhold in a plea deal may
be acceptable. Judges must wield this authority only after ensuring
that victims' rights are upheld, public safety isn't in doubt and the
purpose is a genuine second chance for a felon who actually deserves
it. To use this discretionary power for any other reason abuses justice.