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[OPINION]: Central Florida’s Regressive Prosecutor

In 2016, Central Florida elected Aramis Ayala as Florida’s first African-American State Attorney. Given her background and the backing of the George Soros funded PAC, Florida Safety & Justice, she was expected to be, and portrayed herself as, a progressive-minded prosecutordedicated to improving the criminal justice system.

Yet, while other progressive-minded prosecutors have embraced “smart justice” policies such as decriminalization, problem-solving courts, and mandatory-minimum sentencing reform, Ms. Ayala has proven to be anything but progressive and, in many respects, has adopted regressive policies.

Whereas today’s headlines are replete with stories about prosecutors nationwide foregoing low-level drug and marijuana prosecutions, you would be surprised to learn Ms. Ayala’s office not only prosecutes marijuana cases just as aggressively as her predecessors, she has actually reduced the availability of Pretrial Diversion (a first offender program that results in dismissal of the charges) in marijuana and other non-violent offenses.

Specifically, her office no longer allows offenders who possessed more than 50 grams of marijuana into Pretrial Diversion. Likewise, her office excludes offenders charged with cannabis cultivation from pretrial diversion – even if the “cultivation” was for personal use. Similarly, her office prosecutes possession of small amounts of cannabis concentrates (vape oil, cannabis-infused edibles, etc.) as felonies even though most other circuits will prosecute them as misdemeanors. And finally, her office now excludes concealed weapons offenses from Pretrial Diversion, something not done by her predecessors.

Pretrial Diversion Cannabis Cultivation Policy

And when it comes to the Pretrial Diversion program itself, Ms. Ayala has failed to reform the program in any meaningful way, continuing an antiquated program that costs hundreds of dollars, requires unnecessary treatment, and takes a year to complete once started.

More problematic, the misdemeanor diversion program currently has a minimum six-month backlog; meaning that even if a person is referred to diversion, they must wait six to nine months from their arrest just to start the program – never mind finish it. By comparison, most of the neighboring judicial circuits have implemented shorter, low-cost diversion programs that primarily consists of an online educational course and result in dismissal of the charges within six months of arrest.

To add insult to injury, Ms. Ayala’s office actively opposes the Ninth Judicial Circuit’s Pretrial Intervention program, which is a legislatively authorized problem-solving program that allows judges to place non-violent offenders into a substance abuse treatment program over the State Attorney’s objection and dismiss the charges upon completion.

This program is especially beneficial to offenders who are ineligible for the Pretrial Diversion program due to prior minor offenses or whom the State Attorney will not offer pretrial diversion (such as offenders charged with possessing more than 50 grams of cannabis and cannabis cultivation). Nevertheless, Ms. Ayala’s office has made it her office’s formal policy to object to any offender being placed into Pretrial Intervention and to even appeal many of those placements with the sole intention of preventing these minor offenders from having their case dismissed – something, not even her predecessor did.

Further, while both conservative and liberal activists alike have recognized that mandatory-minimum sentences are an ineffective byproduct of the failed war on drugs and are actively supporting Florida’s proposed First Step Act, Ms. Ayala has not come out in support of the bill.

And rather than empowering her prosecutors with the discretion to waive mandatory-minimum sentences involving low-level, non-violent offenders, Ms. Ayala has instead removed their discretion and requires her prosecutors to seek the mandatory-minimum sentence in all eligible cases – regardless of whether they involve actual “kingpins” as opposed to users just trying to fund their habit.

The only reprieve Ms. Ayala’s office offers from this draconian policy is to sign one-sided “substantial assistance” contracts requiring offenders to ensnare at least three others into committing “trafficking” level crimes. The result is an endless cycle of low-level, frequently opioid-addicted, offenders ensnaring other similarly addicted users in order to avoid mandatory-minimum prison terms.

So, while Ms. Ayala has publicly announced a few progressive sounding policies (most notably her now-retracted position on the death penalty), the truth is those announcements have proven to be all press release and little substance. Mostly, they are minor policy changes that would not actually impact the average non-violent offender that compromise the majority of prosecutions or address the very real problem of over-criminalization that plagues our criminal justice system.

The time is now for criminal justice reform and if Ms. Ayala wishes to improve the system and the lives of those it affects, she must look inward and implement meaningful policy reforms within her own office immediately:

  • Stop prosecuting every minor drug case;
  • Enlarge the availability of Pretrial Diversion;
  • Stop the petty opposition to Pretrial Intervention; and
  • Empower your prosecutors with the discretion to waive mandatory-minimum sentences.

Candidly, such policies are no longer considered progressive – they are just considered common sense.

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Author: Richard Hornsby

Orlando, Florida Criminal Defense Lawyer and DUI Attorney Richard Hornsby is Board Certified in Criminal Trial Law by the Florida Bar and represents clients throughout Central Florida in all criminal defense and DUI defense cases.

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