Wednesday, February 28, 2018

Opening the Back Door


      In 2004, Alethia Jones was arrested in Highlands County. She was charged with helping her sister sell a single piece of cocaine to an undercover office.1 For her role in the offense, Alethia’s sister received a four-year prison sentence. But because of her status as a habitual offender, and because the sale happened within 1,000 feet of a church, Alethia received a sentence of life imprisonment without possibility of parole. Now 57 and confined to a wheelchair because she has only one leg, Ms. Jones has few prospects for release.2

     Alethia Jones is one of more than 96,000 inmates presently serving a prison sentence in the Florida Department of Corrections (FDC), at a cost of almost $2.5 billion a year. Hundreds, if not thousands, of these prisoners are serving lengthy sentences that appear overly severe upon review. There is an emerging consensus that this “mass incarceration” of citizens is dehumanizing, expensive and unnecessary. Presently, reform efforts are focusing on reducing admissions to the prison system by providing community based alternatives and allowing judges more discretion, particularly when dealing with drug offenders. By closing the “front door” to prison, the population of inmates will be reduced over time. Even if these efforts are successful, however, they will do nothing for those inmates presently serving lengthy sentences.

     Prosecutors now say they would have “proceed(ed) differently” had the Alethia Jones case been heard today.3 But even if the prosecutor, defense attorney and judge all agreed that her sentence should be revisited, there is presently no mechanism under Florida law that allows for this to occur.    

     Florida Rule of Criminal Procedure 3.800(c) allows a defendant to ask the trial court reduce or modify a sentence. The main drawback of this rule is that it requires the motion be made within 60 days of the sentence becoming final.4 This time limitation all but renders the rule meaningless because in most cases there would not have been any significant change in the relevant facts or circumstances likely to affect the trial court’s decision. And after 60 days have passed, there is no rule that allows for an inmate to request a modification of sentence even in cases where it appears that a manifest injustice took place during sentencing.

     If there is agreement that we should review the sentences of certain inmates to determine if they can be safely released into the community, what is the best way to build a “back door?” Previous efforts have proved unsatisfactory. Parole in Florida was eliminated for non-capital felonies committed on or after July 1, 1984. The legislature has greatly restricted the ability of the FDC to award gain time, as inmates in Florida must serve a minimum of 85 percent of their sentence before being eligible for release.5 And while theoretically executive clemency is a possibility, the process is cumbersome and not designed to review the cases of hundreds or thousands of inmates.6

     In “Changing the Sentence Without Hiding the Truth,” 52 William & Mary Law Review 465 (2010), Cecilia Klingele argues that judicial sentencing modifications are the best model for considering sentence mitigation.7 Placing review in the sentencing court avoids some of the policy concerns that led to the restriction of other early release mechanisms. Parole, clemency and gain time have all been rightly criticized for a lack of transparency, standards and accountability. When inevitably a freed inmate commits a new crime, the legitimacy of these release mechanisms is immediately called into question.

     What if we expanded the ability of the sentencing court to reduce an inmates’ lawfully imposed terms of imprisonment when specified criteria have been met? Klingele argues that judicial sentencing modifications would have more legitimacy because of the local accountability of the courts. Court proceedings are open and transparent in a way that neither the parole process or gain time award decisions can be. Additionally, the courts have the infrastructure already in place to allow for review, and experienced personnel to work the process efficiently. A court hearing allows for the participation of all interested parties, including victims. Courts also have experience crafting plans of community supervision for the inmate, with input from local providers.

      Ideally the three branches of government would work together in the interest of public safety to design a workable process. The legislature would identify inmates who are eligible for judicial review. FDC would provide information about behavior in prison and progress towards rehabilitation. Ultimately the judge would have the discretion and the responsibility of determining whether a modification of sentence was appropriate in a particular case.

     A process could be developed that requires the inmate file a written request that identifies the change of circumstances or manifest injustice of their sentence. The State of Florida would have the option of agreeing to the reduction or objecting to it on any lawful grounds. The sentencing (or successor) judge would determine whether to grant a hearing. Victims or their representative would be given notice and the opportunity to be heard. If the court granted the modification it would have to specify its reasons. There would be limited review based upon abuse of discretion.

     Other states have successfully experimented with expanded judicial modifications. In Maryland, the motion to modify must be filed within 90 days, but the court can reserve ruling for up to five years. A decision to mitigate a sentence must take place in open court after the judge has heard from the state, defense and victims, and the court has wide discretionary authority.8 Wisconsin recognizes that courts have the inherent power to change and modify their own legally imposed sentences at any time. The inmate’s motion must allege that their sentence was unduly harsh, or show the emergence of “new factors.”9 If filed within 90 days of the sentence the motion must be heard, but the court retains the discretion to hear the motion no matter when it is filed.

     The Model Penal Code (MPC) has considered the idea of a “Second Look” for inmates serving lengthy sentences.10 Under the MPC draft, a judicial decision maker would have the ability to reduce the sentence of prisoners who had served 15 years or more when “in light of current circumstances, the purposes of sentencing … would best be served by…a modified sentence.” Under this provision, the judge would have the discretion to appoint counsel and must give notice to prosecuting attorneys and to victims. Any modification would have to be done in open court and a decision to modify must be made in writing.

      In Florida, one change that should be immediately considered would be to modify Fla. R. Crim. Pro. 3.800(c) and allow the trial court to modify a sentence at any time upon stipulation of the State of Florida and the inmate. This change would allow for immediate relief in some of the most egregious cases or those where it is appropriate to release an inmate for medical or compassionate reasons. Elected State Attorneys are accountable to their communities and are experienced in communicating with law enforcement and victims. If the State agrees it is unnecessary to continue to incarcerate an inmate, the community can have confidence that appropriate factors were considered.

     Obviously, there are a number of issues that would have to be worked out before Florida could allow for widespread judicial modification of sentences. Decisions would have to be made regarding eligibility of inmates, criteria for the court to consider, and rules regulating the process. All of this would take time and effort, but the alternative is to do nothing and continue to pay the cost, both in terms of money and human capital. We can and must do better.

1 “One war. Two Races,” Sarasota Herald Tribune one-war-two-races/alethia.

2 For a good overview of Florida law governing executive clemency, parole and conditional medical release, see How to Leave Prison Early (2015) by Reggie Garcia.

3 Email from Assistant State Attorney Brian Haas, 10th Circuit, to the Sarasota Herald Tribune: “If this case were before the court for sentencing today, this office would proceed differently.” http://projects.heraldtribune. com/one-war-two-races/alethia.

4 If the sentence is appealed, the motion may be made within 60 days after the trial court receives the mandate issued by the final reviewing court. Fla. R. Crim. Pro. 3.800(c). 5 Fla. Stat. 944.275 (2016).

6 Between 1980 and 2013, a total of 148 commutation applications were approved by the Florida Board of Clemency. Garcia, How to Leave Prison Early (Appendix A).

7 Much of this article is based upon ideas expressed in the Klingele article. Anyone interested in this subject should begin by reviewing that piece.

8 Maryland Rule of Court 4-345.

9 Wis. Stat. §973.19(2008).

10 Model Penal Code Sentencing §305.6 (Tentative Draft No. 2, 2011).

Tuesday, September 26, 2017

Mike Lambrix of Florida is scheduled to be executed Thursday, October 5that 6:00PM. He has been on Death Row for 33 years.
Please contact Florida Gov. Rick Scott and ask him to halt the execution of Michael Lambrix and grant a new clemency hearing. Phone: 850-488-7146 (Mon-Fri 8am-5pm ET) or
  • Mike’s only clemency hearing was 30 years ago
  • Mike has a case for innocence and maintains he acted in self-defense
  • He twice refused offers to plead guilty in exchange for a prison sentence - had he done so he would have been freed years ago
  • Key witness testimony has now been tainted or recanted
  • The purpose of a Clemency Board is to intervene in cases like this where the courts are restricted due to “procedural bar” on allowing a hearing on his evidence of self-defense and other late discovered evidence of innocence
  • His jury votes for death were not unanimous. This sentencing scheme has since been ruled unconstitutional and is now unlawful
  • Mike is an honorably discharged, disabled Army veteran.
Governor Rick Scott
The Capitol
400 S. Monroe St.
Tallahassee, FL 32399
Phone: 850-488-7146 (Mon-Fri 8am-5pm ET)

When you call or write, please be sure to give your name and where you live. If you are not a Floridian, provide a connection (i.e., visit Florida, have friends/family there, want to move there someday, etc). The staffer answering phones will be very nice and courteous. They won't question or challenge you. They simply record the issues that people are calling for and make a tally to give to the Governor.

That's why it is so important for your view to be known. You can simply say: "Please urge Governor Scott to halt the execution of Michael Lambrix and grant him a new clemency hearing." If you like you can add any of the reasons listed above.

Please share this message with others. Only with your help can the work be done and progress made.

Friday, July 14, 2017

Hubert Humphrey's Speech on Civil Rights in 1948

Thursday, April 06, 2017

EVENT: "The End of the Death Penalty is Within Sight"


On Tuesday, April 11, 2017 Gainesville Citizens for Alternatives to the Death Penalty (GCADP) hosts speaker Adam Tebrugge, a criminal trial attorney with extensive death penalty experience. The event, open to the public, will be held at 7pm at the Mennonite Meeting House of Emmanuel Mennonite Church, 1236 NW 18th Ave. The title of his presentation is
“The End of the Death Penalty in Florida is Within Sight”. Refreshments will be served and additional parking is available at the next door banks.

Attending and contributing to the discussion will be UF Law School Professor Kenneth Nunn, one of 3 UF professors who recently signed a letter in support of State Attorney Aramis Ayala. Ms Ayala has decided to no longer seek the death penalty in Orange-Osceola cases as it is too costly, takes too long, trapping victim’s families in decades of uncertainty, and is not a deterrent to future murders.

Miriam Welly Elliott, GCADP Co-Coordinator notes “this is a very timely event and topic given all that has occurred in the courts and legislature in Florida over the last year. Recent events with State Attorney Ayala have prompted questions about whether her stand will help bring about an end to the death penalty. We welcome the community to come join us in assessing whether Florida needs to maintain this flawed system of justice”.

Adam Tebrugge recently wrote “Our state just finished a 40 year experiment with an unconstitutional death penalty law. Executions and trials have been on hold for over a year. Florida is now ground zero for the national death penalty debate. It is time for an honest discussion of the extraordinary costs and shameful legacy of the death penalty while we support the courageous leadership that will bring executions in our state to an end.”

Adam Tebrugge is a board certified criminal trial attorney with extensive death penalty experience. He is an adjunct professor of law at the Thomas Cooley Law School in Riverview, Florida where he teaches "Death Penalty Seminar." He is also a board member with Floridians for Alternatives to the Death Penalty.

Friday, December 09, 2016

Orlando 12/10: Florida Criminal Justice Reform Training for Faith Leaders

Thursday, August 11, 2016

Criminal Justice Reform comes to Pinellas County

Today Sheriff Bob Gualtieri put forward his Adult Pre Arrest Diversion Program. Among the highlights:

--The diversion program applies to a variety of misdemeanor offenses including theft, assault, battery, trespass, disorderly conduct, petit theft and possession of marijuana.
--If the offender meets the criteria, law enforcement must refer them to diversion instead of making an arrest.
--There is no cost to the offender for the diversion program. They will complete public service and possibly be referred to a program.
--The program will be adopted via a memorandum of understanding between all the local players in the criminal justice system. This means no ordinance has to be passed by the county or any of the municipalities.
--Successful completion of diversion means no record of arrest or conviction.
--The program is available to second and third offenders.

All in all, it appears that this program is a major improvement over the status quo. The goal is to reduce the number of admissions to the Pinellas County Jail, reduce the number of persons on probation, allow minor offenders an opportunity to avoid an arrest record, and promote fairness for all persons.

Tuesday, April 26, 2016

ACLU Reacts to Department of Justice Report on Racial Impact of Tampa Bicycle Stops

CONTACT:  ACLU of Florida Media Office,, (786) 363-2737

TALLAHASSEE, FL –  The U.S. Department of Justice (DOJ) Office of Community Oriented Policing Services (COPS) has released a report on its investigation into racially disparate bicycle citations issued by the Tampa Police Department.

The report found that the Tampa Police Department’s bicycle stop program “burdened Black bicyclists by disproportionately stopping them,” but “did not produce a community benefit in terms of bicycle safety, bicycle theft, or crime generally” in Tampa.

Responding to the release of the report, ACLU of Florida staff attorney Adam Tebrugge stated:

“We are grateful for the DOJ COPS review which validates what the ACLU and Tampa’s Black community have said all along: that the Tampa Police Department’s bicycle stops disproportionately targeted poor Black communities, stigmatizing young Black people with no benefit toward disrupting and preventing serious crimes.

"Parents and young people impacted by this policy have been saying for years that, whatever their intent, the Tampa Police Department bicycle stop program failed to promote public safety and unjustifiably targeted and stigmatized Black youth.

“The report outlines several recommendations and goals going forward which will improve relations between the community and the police department tasked with protecting it that were broken down by the bicycle stop program. We are especially pleased with the recommendations about increasing public transparency and collecting and reporting data on police stops. We look forward to working with city leaders and the community to ensure that these recommendations are implemented in a way that fosters mutual trust and respect between citizens and police.”