Judgment calls

Published January 15, 2006

Our justice system is built on the rule of law, but the system also depends on the judgments of the people who interpret and enforce those laws. That is particularly true in the probation system. Judges, prosecutors, probation officers and public defenders are faced with decisions that determine whether, and when probationers will have their freedom. The probationers, in turn, face daily choices that can determine their fates. In recent years, public officials have reacted to some especially shocking murders and sex crimes by adopting tough laws and regulations that limit the discretion of those on the front lines of the criminal justice system. In some cases, the get-tough policies have had their intended effect. In others, they have produced unintended consequences that have made the system less fair and society less safe.

* * *

Brian Kastel, 37, lives with three cats in a one-bedroom, threadbare apartment just off Hillsborough Avenue in Tampa. But the humble surroundings don't begin to reveal the emptiness inside.

Kastel, born and raised in Largo, says he is down to one friend - a "significant other" he will not identify to spare her embarrassment. He supports himself with small jobs when and where he can find them.

"It has become increasingly difficult to live any kind of life," he said recently. "I am losing my humanity."

Kastel is a sex offender on probation. His victims have been kids. More than an offender, he is classified a sex predator, in his case meaning he committed a sex offense while on probation for an earlier one.

Kastel is one of few offenders willing to speak about sex crimes and about the way he believes society is making the problem worse. Sex criminals who victimize kids understand the revulsion society feels toward them, he says; many feel it themselves.

"I don't try to hide," he said. "Anybody I meet and might get to know, I tell them, "I molested a child.' If they will shun me, I may as well have that answer right away."

And shun him they do. Jobs become hard to get, hard to keep. Even family members often slip away. "A friendship of 30 years just ended," Kastel said. "Not all at once, we just kind of stopped talking. It died gradually."

But offenders, the people who treat them and even some in law enforcement say that these most-despised are being strangled by an ever-tightening noose of laws when they leave prison.

And when these men fail in society, experts say there is an increased likelihood they will reoffend.

* * *

Clearly the public has had enough.

The images of 9-year-old Jessica Lunsford dying underground in a plastic garbage bag, holding her stuffed toy dolphin in her arms; of 11-year-old Carlie Brucia being beaten into submission, then raped and killed; of a host of other children who have suffered deaths almost too horrible to contemplate - have put people in a mind to punish.

But not all sex offenders are murderers. They aren't all violent, and many respond to treatment. And, according to U.S. Justice Department statistics, most do not reoffend.

Kastel committed his crimes in 1993 and 1997. In the first, he exposed himself to a young girl. In the second, he fondled a 7-year-old girl. For this offense he was sent to prison.

Since his release in 2004, he has completed what he and his psychologist describe as a lengthy, step-by-step, court-ordered recovery course.

Kastel says he now crosses every "t" and dots every "i" of his probation conditions.

Still, he says, he has no peace.

"Sometimes I feel like I'm being pursued by a mob," he said, "as though people want me in a concentration camp."

In Florida and all across the nation, tough new sex offender laws and policies are taking effect. In Florida, the Jessica Lunsford Act took effect last September. Among its provisions are severe penalties for sex offenders and sex predators who fail to register. The law applies retroactively to Kastel and others in his situation.

If Kastel is late registering after changing his address, for example, that probation violation would be a felony, and a felony would send him back to prison for life.

"Only days ago, I appeared before Hillsborough County Sheriff's employees to register as now required of me by the Jessica Lunsford Act," Kastel said recently. The process is like an arrest, he said. "One is first interrogated, then fingerprinted, then photographed. . . . It is humiliating, degrading and strips (away) every ounce of power and dignity."

"I am required now under dire penalty of law to be subjected to this every six months for the remainder of my life because someone else killed Jessica Lunsford," he said. "If you punished your child over and over again for one offense, it would be considered abusive. Why is this any different?"

Kastel says he accepts that most will respond to his complaints either with anger or a shrug. Sex offenders get little sympathy and even less public support. He said he, too, "hates" what he did, but argues that punishment must end someday.

"I am nearing the end of my sentence, at which time I should look forward to getting on with my life that remains, but I cannot anymore. As a free man, I will never be a free man. . . . The hope of a normal life is denied to me."

* * *

Leo P. Cotter, Ph.D., is a former prison psychologist now in private practice. "Sex offenders are the new bogeymen," he says. "But it is bad policy to let a few horrible cases dictate new laws. If we make it impossible for offenders to work or live, we are making the community less safe, not more."

"Our society is not very mature about sexual matters," said Don Sweeney, a mental health counselor specializing in treatment of sex offenders. Most offenders are nothing like the monsters who kill children, he said.

"Most of them need help, deserve help and are willing to respond to help," he said. "You don't have to go very far back in our nation's history to when we had a lot of backward attitudes about alcoholism, too."

Cotter says he worries that the stigma of being a sexual offender has become so onerous that defense attorneys are encouraging their clients to offer a quick guilty plea to the lesser charge of child abuse. "This enables them to avoid being labeled a sex offender," he said, "but it also means the public will not be notified of the crime, the offender(s) will not be monitored, and they will avoid getting the help they need."

The Lunsford Act, and similar legislation around the country, has the law enforcement community scrambling.

"I am getting contacted from all over about (the Lunsford Act)," said Pinellas-Pasco Assistant State Attorney Pat Siracusa. "It seems that every state is going to have a version and every law enforcement community is trying to figure out how to deal with it."

Siracusa says he worries that overly restrictive sex laws might be overturned, and that good parts of the law will be lost with the bad.

"Before the Jessica Lunsford Act passed, a failure to register (as a sex offender) was a level-six felony," he said. "But since the act took effect Sept. 1, failure to register is a level-seven felony, meaning the minimum a sex offender faces is 28 months in prison.

"Realistically, with a mandatory sentence like that, we have to be reasonable. We have to consider why the person failed to register. It could have been an accident . . . maybe the guy moved and didn't get his mail telling him of the law changes."

"As prosecutors, we have discretion and we have to use it wisely," he said.

The Lunsford Act also increases penalties for lewd and lascivious molestation of a child under 12 to either life in prison or a minimum mandatory 25-year prison term, followed by lifelong electronic monitoring. It also requires sexual predators to wait 30 years, instead of 20, after finishing their probation to petition for removal of the predator designation.

In Florida, however, the problems for sex offenders - and for offenders of all stripes, and for the courts, and for law enforcement - come not only from tougher new laws, but from tougher enforcement of older ones.

Does "zero tolerance' make zero sense?

Rules are made to be followed, the argument goes. Even the little ones. If Anthony Morris didn't understand that before, he does now.

On May 11, Morris, his girlfriend, Emily, and their infant daughter were on their way home from a court-ordered meeting of a drug counseling class. Morris is on probation, and one condition of that probation was that he be home by 9 p.m.

But the baby needed diapers and formula, and Emily, who has the couple's only driver's license, was needed at home to help the child with a ventilator for her asthma. So she dropped Anthony at a nearby Publix.

(Morris did not respond to requests for an interview. His story was assembled through interviews with his then-public defender, Chris Ford, transcripts of court hearings and probation office records.)

At 9:04 p.m., Morris' probation officer, Lloyd Armstrong, pulled up at the Morris apartment. Where is he? Armstrong asked.

Picking up formula and diapers, Emily answered.

Armstrong reached Morris on his cell phone and told him to stay where he was. He went to the Publix and found Morris waiting, holding a Publix bag. The receipt showed three purchases: formula, diapers and a liter bottle of Coca-Cola.

Morris was arrested for violating the terms of his probation. He spent more than a month in the Pinellas County Jail waiting for a hearing, Ford said. When he finally got one, at which he and his public defender had planned to enter a guilty plea, an angry Judge Dee Anna Farnell tossed out the violation.

"You know what?" she said. "I hate taking this plea, and I'm not going to take it. State, make your best argument why I should not dismiss this case."

"He knew where he was supposed to be," said the taken-aback prosecutor.

Farnell was unimpressed. "I dismiss the violation," she said. "The safety of the community was not at risk here. . . . The violation alleged was not substantive."

Ford, Morris' public defender, said Farnell did the right thing. "Here is a young man doing all the right things; he's working, supporting a young family, staying out of trouble, and then this happens.

"The (probation) system was working in his case. What does this teach him? Why would he ever trust government again?"

* * *

Stories of such "technical violations" of probation are all over Florida courthouses these days - stories of probation violations for parking on the grass, for not quieting a barking dog. Here's another, though it's hard to think of Harry Kleedorfer as a victim. Kleedorfer is a convicted sex offender with a lengthy rap sheet of arrests for serious crimes: capital sexual battery, lewd and lascivious molestation, burglary with battery, brawling. He also managed to get himself arrested for violating his probation before he got out of prison.

Kleedorfer's Catch-22 began as he reached the end of a 3 1/2-year prison sentence for three counts of lewd and lascivious molestation. The prison time was to be followed by five years of probation.

But when he was released from the state's Marion Correctional Institution on Sept. 23, he was met at the door and taken immediately to the Marion County Jail. He was told he had violated his probation while still behind bars by not finding an approved place to stay when he left prison.

He had a place to stay, but it was too close to a school. He had been unable to find another place while in prison.

The Department of Corrections says Kleedorfer has demonstrated that he is the kind of person society needs protection from, and that where he lives, and whether it has been approved by probation officers, is crucial to monitoring his behavior.

A week after his arrest, Pinellas Circuit Judge Loren Laughlin ordered Kleedorfer released on his own recognizance, concluding it was impossible to violate his probation while still in prison.

But before he could be released, another probation officer filed a second affidavit alleging the same violation, and Kleedorfer remained in jail - until another judge ordered him released again.

* * *

The seemingly small policy change that brought about this crackdown on "technical" violations came in 2003, the year Jim Crosby became secretary of the state's Department of Corrections. Crosby, whose background is in running prisons, said it troubled him that probation officers had the latitude to report some violations and ignore others. So he instituted a "zero-tolerance" policy: All violations, no matter how small, are now reported to a judge, and some violators are arrested on the spot.

To handle the additional street work caused by zero-tolerance, probation officers were taken out of the courtroom, where judges had relied on their experience and knowledge in deciding what to do with a probation violator.

In Pinellas-Pasco Circuit Court, Judge Dee Anna Farnell, then the criminal administrator, raised such a strong objection that Crosby finally agreed to put the probation officers back in the courtrooms - but only on Fridays.

DOC officials acknowledged the crackdown on technical violations is at least partly an outgrowth of the Carlie Brucia murder and the gruesome baseball bat slaughter of six people in Deltona in August. Authorities say both crimes were committed by men who could have been jailed - and in the Deltona case should have been jailed - for probation violations before the killings.

Meanwhile, the effects of zero-tolerance quickly began to work their way through the system. The court's dockets became more congested, the county jails got more crowded and probationers found themselves hauled into court on the most minor of charges:

* The per-month average of technical violations for January through September 2003 was 558.

* For the same period in 2004, the monthly average jumped to 760.

* For the same period in 2005, it was 839.

The policy has made just about everyone unhappy.

Judges worry that removing probation officers from the courtroom will increase the chances they will release someone to commit a serious crime. "It's a nightmare we live with every day," said Pinellas County Circuit Judge W. Douglas Baird.

"It used to be that probation was what everyone wanted," said Soraida Justiniano, Kleedorfer's public defender. "But that's not true anymore. I just told a judge to please give (a different client) some short county (jail) time instead of probation.

"The way things are going now, it's better to get the jail time. If you get probation, you're going to get violated, and then you could get some serious prison time - especially if you are a sex offender."

Finding a way to cite someone for a probation violation is ridiculously easy these days, said mental health counselor Sweeney - "like shooting fish in a barrel."

The state DOC shows no sign of budging.

"Zero tolerance ensures that consistent policy is being followed across the state . . . it stresses to offenders that the department has a no-nonsense policy," said Robbie Cunningham, department spokesman.

"We're supposed to be working together," said a frustrated Judge Farnell. "But we're not."

* * *

Though few probation officers will speak for the record, many worry that the zero-tolerance policy applies mostly to them. Further, some say the policy devalues their experience.

"Everybody evaluates us when something breaks bad (goes wrong)," says officer Rebecca Wolf, "but they don't look at all the cases where something good happens - when rapes aren't committed, when kids aren't molested because offenders are complying and because probation officers are doing their jobs."

On the Web site leoaffairs.com, where law enforcement officers can converse, gossip and criticize superiors - anonymously - this question was recently asked of probation officers: "You can change one policy . . . what change would you make?" Most answers shared a theme:

"Zero tolerance has created a backlog in the judicial system from which we may never recover," said one. "Return discretion to those of us in the trenches - you know, the ones who actually know of which we speak."

Another: "I've always practiced discretion on the cases that needed it. Tally (Tallahassee) and everybody else be damned. You should know I've never had a problem in 21 plus years."

Another: "We were trusted to practice zero tolerance on cases that needed it. We aren't trusted anymore . . . A VOP (violation of probation) is mandated for everything from murder to being $20 in arrears (on a cost-of-supervision payment to the state), resulting in needless paperwork just to CYA. How many of your warrants are "refused' by the court? Personally, I see them nearly every day."

Another: "I would change the zero tolerance for the offenders and the officers. This policy has derailed our relationships with all other agencies, caused turnover and made the job for those who stay miserable. I am leaving the agency as soon as I can get out."

And finally: "Survival is now the mode."

Staff writer David Ballingrud can be reached at 800-333-7505 ext. 8245, or by e-mail at ballingrud@sptimes.com