CRIMINAL JUSTICE PAIN JUST BEGINNING
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 P