Punishment by Process: Defending Against Prosecutorial Abuse

By CTD Blogger published on in Legal

Controversial Miami-Dade Circuit Judge Milton Hirsch, intensely dislikes the “Stand Your Ground” concept. He ruled the legislature does not have to power to regulate the “Stand Your Ground” law.

By Dean Weingarten

The Florida legislature passed a reinforced “Stand Your Ground” law in 2017. The new law stems from prosecutorial abuses, where people who are clearly justified in using force for self defense, are put through the criminal justice system, even though the chance of a conviction in the courts is slim.

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People charged with a crime faced years of court costs and uncertainty. It is punishment by process. The legislature removed power from the prosecutors and gave it to judges, to prevent this kind of abuse.

“Stand Your Ground” laws have been popular. Two thirds of the States have similar law. The elimination of a requirement to retreat in the face of deadly force has long precedence in the United States, starting with a Supreme Court ruling in 1895.

Judge Hirsh’ decision cites English precedence to the effect that there is a requirement to retreat, and some American cases, but completely ignores the 120 years of precedence in the Supreme Court that supports the Stand Your Ground law. It shows Judge Hirsch’ bias. From Miamiherald.com:

Hirsch found that the changes to the law were “procedural,” meaning only the Florida Supreme Court has the right to make them.

The ruling cites this part of the Florida Constitution, and makes the claim that the Legislature is changing a rule of the court, rather than making a law. From Ballotpedia.com:

Text of Section 2:

Administration; Practice and Procedure

(a) The supreme court shall adopt rules for the practice and procedure in all courts including the time for seeking appellate review, the administrative supervision of all courts, the transfer to the court having jurisdiction of any proceeding when the jurisdiction of another court has been improvidently invoked, and a requirement that no cause shall be dismissed because an improper remedy has been sought. The supreme court shall adopt rules to allow the court and the district courts of appeal to submit questions relating to military law to the federal Court of Appeals for the Armed Forces for an advisory opinion. Rules of court may be repealed by general law enacted by two-thirds vote of the membership of each house of the legislature.

A former prosecutor and current member of the legislature, Senator Rob Bradley, disagrees. He is the author of the law. He believes the appeals court will overrule Judge Hirsch. From usf.edu:

But, Sen. Rob Bradley (R-Fleming Island)—the new law’s author—disagrees.

“I would be surprised if it were upheld on appeal,” he said.

If the courts rule that the Florida Legislature overstepped its authority in this case, an alternative would be to reform the law by making it similar to law in Washington state. In Washington, if a defendant is found not guilty after a self-defense claim is made, the state pays the court costs and legal fees of the defendant. This would be another check on the power of prosecutors to punish defendants with process costs.


“Stand your ground” and “Castle doctrine” have both been criticized in the past. However, while the ideal choice in any dangerous situation is to try and retreat, in a vast number of cases this is totally impossible without risking injury or death. Of course, such laws can be abused but overall they are definitely necessary, in particular because after a proven lawful defense shooting there should not be the drawn out liability of a civil suit, let alone a full scale criminal case when self-defense facts are clear and irrefutable.

Which do you support, taking it out of the prosecutors hands or forcing the state to pay the defendant’s legal fees if found to be not guilty. Share your answer in the comment section.

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Comments (51)

  • wolf ryet


    Mass Ayoob once said the scariest thing that can happen to you is go up against a prosecutor with an ajenda. He can say or make up anything he wants to press his case and there is nothing you can do about it other than press your case on evidence. A solid knowledge of law and sound legal defense is necessary to your well being in such a situation.


  • Michael


    In flagrant cases the cost should be borne by the prosecutor, with no immunity given, otherwise out of the prosecutor’s budget!


  • Robert


    Because of situations and cases like the ones mentioned above. I have signed up for US Lawshield. For $10.95 a month they will represent you in court whether criminal or civil court and there are no deductibles or fees other than what you pay monthly. Even if your case goes to the Supreme courts there are no caps on the cost of the case. Lawyers are all local in your state. 24-7, 365. I feel more confident now and they keep you up to date on any laws that change on gun control.


  • Randy


    Until the costs, fines and penalties are paid out of the pockets of the bias prosecutors and judges it is not going to change. Do you think they really care if the taxpayers pay another fine or penalty on their behalf?


  • Rusharn


    It is not the damages that we should be looking at, it is the prosecution abusing the system that needs to be addressed. A system need to be put in place that juniors can decided that the prosecution is being malicious in their actions and be able to not only render an acquittal but order a review of the prosecution.


  • Billy


    I like the Washington law. I’ve always found it strange in this nation based on liberty and justice for all that a person can be completely innocent of a crime, but the courts, and sometimes well-funded adversaries ranging from corporations to the government can bring endless resources to a prosecution, ultimately destroying the life of the innocent person without any verdict of guilt. At least having the loser of the case pay the legal fees seems like a suitable reform.


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