Pubdate: Thu, 18 Jan 2001
Source: St. Petersburg Times (FL)
Copyright: 2001 St. Petersburg Times
Contact:  490 First Ave. S, St. Petersburg, FL 33701
Website: http://www.sptimes.com/
Forum: http://www.sptimes.com/Forums/ubb/cgi-bin/Ultimate.cgi
Section: Page 3A, Local News
Author:  Sue Carlton, Times Staff Writer

JUDGE SPARES WHITE MAN FROM PRISON TIME

A Judge Says The Man, Who Is 5-Foot-8 And Weighs 175 Pounds, Would Be 
Preyed Upon In The Prison System Because Of His Race And Size

TAMPA -- A judge who said she feared putting a white drug offender in 
prison because his race and size might make him a "sexual target" stuck to 
her plan Wednesday despite a controversy that reached across the country.

Circuit Judge Florence Foster sentenced Paul Hamill, 41, to house arrest, 
residential drug treatment and probation, even though a prosecutor asked 
for prison time under state-mandated sentencing guidelines. The issue of 
Hamill's race never came up.

A hearing in November was different. Considering Hamill's fate then, Foster 
said sending the 5-foot-8, 175-pound man to prison amounted to "cruel and 
unusual punishment."

"When I looked at him he's a small, thin white man with curly dark hair," 
she said. "And I suspect he would certainly become a sexual target in the 
Florida state prison system. And I've been told that they can't protect 
people like that. I'm not going to send a man like this to Florida state 
prison."

Those comments sparked a firestorm of criticism and controversy, with the 
story picked up by newspapers in Los Angeles and New York. A New York Daily 
News column derided her decision as "the Weight Watchers 'Get Out of Jail' 
Diet.' The president of Florida's NAACP said it proved justice was not blind.

Foster was unbowed Wednesday, saying she wanted to give Hamill the chance 
to get the treatment he needs. Two doctors who evaluated Hamill, who 
admitted he violated his probation on a cocaine possession charge, 
recommended a live-in treatment program.

"I really do have a deep desire to get my life straightened out," Hamill said.

State guidelines, in which factors are added to determine a range for a 
sentence, called for two to three years in prison. But the judge said 
Hamill's mental health problems and his willingness to get help were 
reasons for a lesser sentence. He was given two years' house arrest and 
three years' probation and will live at least part of that time in a 
treatment program. The judge threatened prison if he violated the terms of 
the sentence.

Hillsborough County Commissioner Tom Scott said Wednesday that the judge 
owes the community an apology or an explanation. Her statement "shows the 
inequity," he said. "The sentencing guidelines are different in response to 
minorities as opposed to Caucasians."

"It does not always get spoken out loud," Scott said. "In this case, it's 
been substantiated."

The judge had declined to talk about the case but pointed out that the 
purpose of the specialized drug court is to rehabilitate drug addicts.

"Race is not an issue in my courtroom," she said this month. "Each case is 
treated individually based on the unique facts of that case."

Hamill's attorney, Douglas deVlaming, said there was concern that the 
controversy might change the sentence. Hamill's father, a Naples retiree, 
said it could affect the chance to get help for his son, who started 
drinking beer at 14 and graduated to crack cocaine.

"But Judge Foster has a lot of integrity and a lot of backbone," deVlaming 
said. "She did the right thing."

DeVlaming said if all cases could be added up as simply as sentencing 
guidelines, "we'd take the judge off the bench and put an adding machine or 
a computer up there."

Prosecutors are considering an appeal.

"We're reviewing the legal precedent to determine if we have a legal basis 
to appeal" Foster's sentence, said State Attorney's Office spokeswoman Pam 
Bondi.

The Judicial Qualifications Commission, which oversees judicial behavior 
and has been busy with several incidents in Hillsborough, likely will take 
a look at Foster's comments.

"I'm concerned for the judicial system over here, because they've been 
rocked by a lot," said deVlaming, whose office is in Clearwater. "And this 
didn't help it."
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