A Critique of the Florida Bar Criminal Justice Summit
By Adam Tebrugge
The Florida Bar developed and hosted the first “Criminal Justice Summit” on October 16 and 17, 2018 in Tampa. The mission of the summit was: “To recognize and then address issues affecting the Florida criminal justice system, provide a forum for discussion and work with stakeholders to develop programs and solutions for the fair and effective administration of justice.” Professor Ellen Podgor of Stetson University’s College of Law was the official Reporter and will provide a written overview in the near future. People interested may search the hashtag #FlBarCjSummit on Twitter to find videos of the speakers and some reactions from participants. The Bar will also make the videos available for viewing for CLE credit. Here were some of my impressions of the summit.
Credit where credit is due: Florida Bar President Michelle Suskauer is a former assistant public defender and remains a practicing criminal defense lawyer and member of FACDL. A top priority for her term was to focus on criminal justice. Suskauer secured the support of the Board of Governors, put together a steering committee, and pulled off an impressive event. Approximately 160 people were in attendance, including ten elected State Attorneys, 15 elected Public Defenders, 3 Florida State Senators, and too many judges to count. There was no cost to participants, and the summit included a social, breakfast and lunch. As a criminal lawyer I have not always felt like the Bar valued my membership, so I truly appreciate their decision to work on these issues and bring people together. Overall, despite some of my critical comments that follow, I believe the summit was valuable and hope that the work continues.
Planning and Preparation. Setting the agenda for an event like this is perhaps the most critical phase and a steering committee was assembled to plan the summit’s agenda. Reviewing the makeup of the committee, I believe it could have used more lawyers who regularly go to First Appearances, Misdemeanor Arraignments and Felony Docket Soundings in the state courts of Florida. The steering committee should also have contained a representative from the Florida Department of Corrections (F.D.C.), either from the prison or the community corrections side, or both. Additionally, the steering committee should have included a formerly incarcerated person or someone impacted by a felony conviction. The addition of these stakeholders to the steering committee likely would have resulted in a more focused and practical agenda.
While it is always nice to get CLE credit, I think it was a mistake to make this primarily a CLE conference. Early in the Summit, President Suskauer joked that she had ruled out locking the doors until we reached consensus, but that might have been a better strategy. There were a tremendous number of talented and powerful people in the room, few of who were given an opportunity to speak. Making the summit a videotaped CLE conference transformed the “forum for discussion” into a passive listening experience. At a minimum, the sessions should have included at least one open microphone opportunity where attendees would have had a chance to respond to what they had heard.
The Big Questions: Chief Justice of the Florida Supreme Court, Charles Cannady, kicked off the conference on exactly the right note. He encouraged us to ask the big questions: Why do we incarcerate? What are we hoping to accomplish with our criminal justice system? How do we promote fairness throughout? Despite the Chief’s exhortations, there never was a chance to have those discussions.
Perhaps the summit should have begun with an attempt to reach consensus on the problems of the criminal justice system. Why are there approximately 150,000 people in prison or jail in Florida on any given day? What is responsible for the documented racial disparities? Is there sufficient accountability in the system not just for offenders, but also for the rest of us? Does justice really require that we continue to incarcerate elderly or sick offenders who pose no threat to anyone? Why is so little rehabilitation offered in our prisons?
One big topic that was barely discussed was the “War on Drugs.” For at least the past 35 years, Florida has targeted people who use drugs and incarcerated them. Where has this gotten us? Thousands of our citizens are now locked up or under supervision at enormous financial costs. Law enforcement has lost the trust of affected communities throughout the state. People continue to die or be denied access to treatment. There are alternatives to this war that focus on public health, safety and treatment. It is disappointing there was not a chance to discuss these issues.
What Does Data Do?
Florida Statute 900.05 was passed during the 2018 legislative session. The stated purpose was “to create a model of uniform criminal justice data collection by requiring local and state criminal justice agencies to report complete, accurate, and timely data, and making such data available to the public.” Agencies will be required to collect data on factors such as ethnicity, indigence and recidivism. A pilot program was funded for the Sixth Judicial Circuit as a likely precursor towards statewide implementation.
A group called “Measures for Justice” is administering the pilot program. Dr. Gipsey Escobar, Director of Research and Analytics, gave an update on their progress. While she maintained that Florida has critical data gaps, she did not present convincing examples of practical applications. Solutions should not be dependent on data that may take years to collect and analyze, when all available evidence shows that we are in the middle of an ongoing crisis that needs immediate attention.
This was made clear by Leonard Engle, Director of Policy and Campaigns for the Crime and Justice Institute, who used existing data to give a devastating presentation to those who paid attention. Over the past 40 years, Florida’s prison population grew by nearly 400%, and our rate of imprisonment is 23% higher than the national average. While Florida’s crime rate has plummeted, our incarcerated population has stayed steady, despite fewer admissions to prison. The main reason for continued mass incarceration in our state is due to the excessive length of sentences. Contributing to these lengthy sentences are various enhancements and mandatory minimums. This has resulted in an explosion in the population of elderly inmates. A quarter of those incarcerated in Florida prisons are over the age of 50, and that number grew 65% in the past decade. Age is the most important predictor of recidivism, and people over the age of 50 and beyond are the least likely to reoffend. Florida’s “85%” rule restricts the ability of the Department of Corrections to transfer elderly or sick inmates to community treatment or supervision, thus adding significant health care costs to the F.D.C. budget each year.
There were several very clear takeaways from Engle’s presentation. Sentences in Florida are far harsher than necessary to achieve results. The State is spending an enormous amount of money to imprison people who pose little threat to public safety. Nearly 30% of the people in Florida prisons have never been convicted of a violent offense. Many of those who were convicted of a crime of violence have now aged out of criminality. The research indicates that longer prison stays do not reduce recidivism more than shorter stays. The State of Florida could take immediate steps to free thousands of prisoners, achieve significant cost savings, and have little impact upon public safety.
Unfortunately throughout the rest of the summit, the prevailing wisdom seemed to be that there is little or nothing we can do to reduce the current prison population in any significant manner. While there was some discussion of easing the 85% rule for certain offenders, Senator Bradley said the legislature had no appetite for discussing any kind of relief for so called “violent” offenders. Nor did he believe cost savings should be achieved at the expense of “keeping us safe.”
At a minimum, Florida should begin to discuss possible mechanisms for expanding review and release of certain prisoners. Parole is not presently available to most Florida prisoners, the Department of Corrections is greatly restricted in developing release plans, and the courts do not play any role. If an effective review mechanism can be developed, policy questions about eligibility for release can be more specifically addressed.
Good news, Bad news, Consensus: There were a few pieces of good news. Prison admissions have steadily declined in Florida over the past ten years, mainly because there has been a dramatic drop in probation revocations in favor of community sanctions. Civil citations for juvenile offenders are being used successfully throughout the state and those who complete the diversion programs are showing low rates of recidivism.
Perhaps the most impressive presentation came from 4th Judicial Circuit State Attorney Melissa Nelson who described her motivations and policies establishing Florida’s first conviction integrity unit. Prosecutor’s offices throughout the country have tried different variations of these over the past decade. Nelson was able to obtain an earmarked appropriation for the unit and then spent time developing a set of policies to govern how it would operate. The focus of the unit will be on credible claims of actual innocence capable of further investigation. If a wrongful conviction is identified, the office will not only facilitate review of the case by the courts, but Nelson also hopes to use mistakes as training opportunities. Understanding how wrongful convictions occur will help prevent them in the future.
In the audience for Nelson’s presentation were numerous other elected state attorneys. So far, only Andrew Warren of the 13th Circuit and Aramis Ayala of the 9th Circuit have followed Nelson’s lead. Perhaps some of the other state attorneys who heard Nelson speak were influenced by her initiative and will consider asking for funding for similar units. The legislature should consider funding a conviction integrity unit in each judicial circuit.
The presence of so many state attorneys at the summit was both encouraging and discouraging. Encouraging because they heard the same data and were confronted with the same realities that everyone in attendance understood. Discouraging because for the most part they remained defensive and opposed to almost all proposals. At a panel on sentencing, 8th Circuit State Attorney Bill Cervone described himself as “the loyal opposition” and indicated he was satisfied with the current state of affairs. 2nd Circuit State Attorney Jack Campbell resisted even modest reforms to Florida law allowing for direct file of juvenile offenders in adult court without judicial review. And throughout the panel discussions, seated in the front row was “Buddy” Jacobs, the longtime head of the Florida Prosecuting Attorney’s Association and the man described as “the most powerful lawyer in Florida keeping criminal justice at bay.”
There seemed to be general consensus that the present felony threshold amount of $300 is too low, and should be raised to $1,000 or $1,500. No objections were raised to the long time effort to require recording of all interrogations. There appears to be support to end driver’s license suspensions for most non-driving conduct, which would reduce the number of people jailed for DWLS. Some support was voiced for judicial “safety valves” to avoid certain mandatory minimum sentences. Also discussed was a proposal to relax the “85% rule” for offenders sentenced under the first four or five categories of the Criminal Punishment Code (CPC). More promising was the call to repeal the CPC made by Public Defenders like Blaise Trettis and Carlos Martinez. Attorney Reggie Garcia recommended that the Florida Commission on Offender Review be allocated additional funds to hire investigators to help clear a large clemency backlog. Senator Jeff Brandes has been the leader of reform efforts, but concluded the conference on a pessimistic note, saying there was little appetite for criminal justice reform in the legislature and that these were not priority issues for most citizens or their representatives.
Next Steps: No matter the results of the past elections, there are opportunities for some changes in the next legislative session. Reform advocates should identify a list of priority legislative fixes, such as raising the felony threshold, driver’s license reform, mandatory recording of interrogations, mandatory minimum safety valves, and relaxing the 85% rule. FACDL is a member of the Florida Campaign for Criminal Justice Reform that brings together a variety of advocates from across the political spectrum to speak with a single voice about legislative priorities. The Florida Bar should consider reviewing these priorities in light of the summit and then play a supportive role during the session. One frequently overlooked area is the budget process. In the Florida House, the Justice Appropriations Subcommittee considers budget requests from a number of agencies directly responsible for a variety of criminal justice services. This subcommittee could play a major role in identifying priorities, improving alternatives to incarceration, and helping to close the “front door” to Florida prisons. Everyone in the system should also consider ways to open the “back door” and safely release some of the 96,000 presently incarcerated. All three branches of government should work together to significantly reduce the incarcerated population.
This summit will truly be successful if it serves as the precursor to widespread reforms as opposed to incremental changes. Other states have had success working with groups like Pew Charitable Trusts to consider comprehensive improvements to the entire system. For instance in Oklahoma, Governor Mary Fallin established a Justice Reform Task Force. “(T)he Task Force engaged in a seven-month study of Oklahoma’s sentencing and corrections systems, analyzing data, evaluating innovative policies and programs from other states, and reviewing research on what works to reduce recidivism.” Many of the proposed reforms were subsequently unanimously adopted by the Oklahoma legislature and signed into law. Florida should undertake a similar process and bring to our legislature a comprehensive package of reforms for their approval.
What we really need is a sense of urgency in Florida as we undertake these efforts to significantly improve criminal justice. If the Florida Legislature fails to act responsibly, it may be up to our citizens to use the initiative process to bring about change. The Florida Bar should be commended for focusing attention on criminal justice issues, and on bringing together people from across the system. Hopefully in the near future we will look back on this summit as an important step towards achieving meaningful reform.
 “The Most Powerful Lawyer In Florida Is Keeping Criminal Justice Reform At Bay,” by Ron Sullivan (5/3/17)
 “Oklahoma Governor’s Task Force Releases Massive Criminal Justice Reform Policy Package,” (2/3/17) found at Community Resources for Justice