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What Constitutes a Danger to the Community?

On March 14, 2016, the United States Department of Justice (DOJ) announced a package of resources to assist state and local efforts to reform harmful and unlawful practices in certain jurisdictions related to the assessment and enforcement of fines and fees. One of the elements of the package was a Dear Colleague Letter from the Civil Rights Division and the Office for Access to Justice that was sent to the chief judges and court administrators in all 50 states.

The letter did not threaten any specific enforcement action for those who ignore it, but it did detail seven principles that court personnel should be aware of when imposing fines. The letter stated:

Recent years have seen increased attention on the illegal enforcement of fines and fees in certain jurisdictions around the country—often with respect to individuals accused of misdemeanors, quasi-criminal ordinance violations, or civil infractions. Typically, courts do not sentence defendants to incarceration in these cases; monetary fines are the norm. Yet the harm caused by unlawful practices in these jurisdictions can be profound. Individuals may confront escalating debt; face repeated, unnecessary incarceration for nonpayment despite posing no danger to the community; lose their jobs; and become trapped in cycles of poverty that can be nearly impossible to escape. Furthermore, in addition to being unlawful, to the extent that these practices are geared not toward addressing public safety, but rather toward raising revenue, they can cast doubt on the impartiality of the tribunal and erode trust between local governments and their constituents.

On September 2, 2016, Broward County Public Defender Howard Finkelstein wrote his own letter to 17th Judicial Circuit Chief Judge Peter Weinstein in which he stated that “the unconstitutional incarceration of the indigent is the routine practice of the Broward County Judiciary.” Finkelstein wrote that alleged offenders “are often held in jail following a magistrate hearing for a minor offense simply because they cannot afford to post the bond,” adding:

My position has always been that every arrestee, regardless of wealth or poverty, should be on equal footing with regard to bond determinations. Individual determinations, however, require a 24 hour magistrate. This circuit has decided not to place such a “hardship” on the judiciary, but instead place the true hardship on the indigent. Your failure to implement 24 hour magistrates has also endangered the people of Broward County by allowing dangerous people with extensive records to bond out without seeing a judge. Meanwhile, poor people remain in jail simply because they are poor.

The danger that an alleged offender poses to the community is an understandable and justifiable concern that deserves to be addressed in Florida courts, and it is important to keep in mind that judges can be prohibited from granting bond in certain cases in which courts determine alleged offenders do pose a danger to the community.

Danger Hearings in Broward County, FL

On March 12, 2007, then-Governor Charlie Crist signed Senate Bill 146, more commonly known as Florida’s “Anti-Murder Act.” The purpose of this legislation was to require violent felony offenders who violate the terms of their probation to remain in jail until a court determines whether they pose a danger to the community.

The process under which a court determines whether a Violent Felony Offender of Special Concern (VFOSC) is a danger to the community is commonly referred to as a “Danger Hearing.” Under Florida Statute § 948.06, a court may consider all of the following in determining the danger posed by an alleged offender’s release:

  • The nature and circumstances of the violation and any new offenses charged;
  • The alleged offender’s past and present conduct, including convictions of crimes;
  • Any record of arrests without conviction for crimes involving violence or sexual crimes;
  • Any other evidence of allegations of unlawful sexual conduct or the use of violence by the alleged offender;
  • The alleged offender’s family ties, length of residence in the community, employment history, and mental condition;
  • His or her history and conduct during the probation or community control supervision from which the violation arises and any other previous supervisions, including disciplinary records of previous incarcerations;
  • The likelihood that the alleged offender will engage again in a criminal course of conduct;
  • The weight of the evidence against the alleged offender; and
  • Any other facts the court considers relevant.

Florida Statute § 948.06(8)(b) defines a violent felony offender of special concern as a person who is on either felony probation or community control related to the commission of a qualifying offense; felony probation or community control for any offense allegedly committed and has previously been convicted of a qualifying offense; felony probation or community control for any offense allegedly committed and is found to have violated that probation or community control by committing a qualifying offense; felony probation or community control and has previously been found by a court to be a habitual violent felony offender as defined in Florida Statute § 775.084(1)(b) and has allegedly committed a qualifying offense; felony probation or community control and has previously been found by a court to be a three-time violent felony offender as defined in Florida Statute § 775.084(1)(c) and has allegedly committed a qualifying offense; or felony probation or community control and has previously been found by a court to be a sexual predator under Florida Statute § 775.21 and has allegedly committed a qualifying offense.

Qualifying offenses include any one of the number of sexual or violent crimes identified under Florida Statute § 948.06(8)(c). If you or your loved one is scheduled to have a Danger Hearing in South Florida after an alleged violation of probation, it is in your best interest to immediately contact a Broward County criminal defense attorney for help ensuring that you receive a fair hearing that achieves the best possible outcome.

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