AN OVERHAUL, NOT A TUNEUP
Florida’s Criminal Justice System is in Need of Top to Bottom Repairs
One day in late May of 1984, I entered the office of the Manatee County Public Defender and began a thirty five year encounter with Florida’s criminal justice system. There were approximately 26,400 inmates serving time in Florida prisons. Now we have more than 97,000 prisoners.
Each year experts, legislators and media outlets point out the enormous problems caused by the imprisonment of nearly 100,000 Floridians. Each year we watch while states like Texas, Georgia, Alabama and Louisiana pass reform packages that actually reduce their reliance on incarceration and improve the delivery of rehabilitative services. And each year in Florida, modest reforms are debated but not enacted and our criminal justice system continues to fail our communities.
The 2018 legislative session was no different. Going in, there appeared to be consensus that the time was right for several modest reforms. Bills were introduced to raise Florida’s felony threshold, reform driver license suspensions, and provide a safety valve to judges when sentencing first time offenders facing a minimum mandatory drug sentence. All of these efforts obtained widespread support and passed numerous committees, only to fail on the final day of the session.
Instead of reform from the legislature we got data collection. Midway through the session, House leadership introduced a wide-ranging package of tweaks to reporting data from the criminal courts. Money that could have been spent on rehabilitative efforts will instead be used to hire more I.T personnel. Though this data reform has been widely praised, I fear the real outcome will be to derail reform efforts, not only in 2018, but also for years to come. Advocates will be told that we have to wait for the results of the data before any tweaks can be made. Meanwhile there is plenty of existing data demonstrating just how broken the system is,
A few weeks after the close of the 2018 legislative session, busses pulled up to drug treatment centers around the State of Florida. Men and women were searched, handcuffed and taken back to prison. These people were not a threat to anyone nor had they done anything recently wrong. The Florida Department of Corrections had just signed a new $50,000,000 health care contract with a private provider to provide care to the thousands of sick and elderly inmates in Florida prisons. This meant a $28,000,000 hole in the budget that the legislature and Governor refused to fill. So at the height of a deadly opiate crisis, Florida closed drug treatment programs around the state.
Going forward, I believe that we must start to consider far more wide-ranging reforms. Too often we do not contemplate what real change would look like because we believe it to be politically unrealistic. But if the goal is to significantly reduce Florida’s prison population, radical change is needed. At our present rate of “reform” it is estimated that it will take 75 years to reduce the prison population to 50,000 people. We can and must do better. Here are some of the major reforms that should be considered. This list is just a starting point for the wide ranging debate needed as we strive to improve our criminal justice system.
Reform Pretrial Release:
On any given day in Florida, approximately 52,000 people are locked inside of Florida’s 67 county jails. Most of these people are awaiting trial and are presumed innocent of their charges. There is a growing consensus that a person’s freedom should not depend upon their ability to hire a bail bondsman. While Florida law “create(s) a presumption in favor of release on nonmonetary conditions for any person who is granted pretrial release,” judges around the state continue to require cash bonds for a wide variety of offenses.
Trial judges should be given pretrial release options for defendants in order to alleviate concerns about failure to appear or reoffending. These options include creating local pretrial supervision efforts, using text messages and other reminders, and reducing the number of pretrial court appearances. Appellate courts should be more vigilant and consistent in ordering the release of defendants inappropriately held on monetary bond. Elected State Attorney’s can make policy decisions not to seek cash bail for misdemeanors and third degree felonies. Sheriff’s and police chiefs can ensure that notices to appear, civil citations and other diversion programs are used in lieu of arrest.
Repeal Florida Drug laws and Adopt Harm Reduction Strategies:
For these past 30 years, we have all sat in courtrooms around the state and watched thousands of young men and women sentenced to lengthy prison terms for the crime of possessing or selling narcotics. Presumably the reason this was done was to discourage or prevent drug use by our citizens. Instead of preventing use, the “War on Drugs” has filled our prisons with addicts, pitted law enforcement against neighborhoods, and sucked up resources that could be used for treatment. The net result is that 63,632 Americans died from drug overdoses in 2016.
To prevent these deaths, Florida should consider a variety of harm reduction strategies and move towards providing treatment on demand. “The philosophy of harm reduction has roots in the public health approach. It does not endorse drug use, but accepts drug use as a reality and focuses on reducing its harmful consequences, including death, HIV, hepatitis C, criminal activity, and incarceration Harm reduction incorporates a spectrum of strategies from safer use to managed use to abstinence to meet drug users ‘where they’re at,’ addressing conditions of use along with the use itself. Florida must decide whether to continue the punitive drug war or embrace alternatives that promote public health.
Abolish the Felony Murder Rule:
Have you ever watched voir dire in a felony murder case? Typically the jurors are horrified when they learn they are being asked to convict someone of murder who never killed anyone. The judge and the state attorney patiently explain that they must follow the law, and remove those who express reluctance. This leads to the conviction of people like Ryan Holle. Ryan was 20 years old when he loaned his car to his roommate who then went out with others and committed a robbery and murder in 2003. “No car, no crime” the prosecutor successfully argued, and Ryan was convicted of first-degree murder and sentenced to life imprisonment.
Repealing the felony murder rule would cure this injustice. Anyone who assists in the commission of a serious felony would still be held accountable for their role in a crime, and judges can take into account the harm caused by those crimes. However, we should no longer punish people for crimes they did not commit or intend. The Florida laws that establish the offense of felony murder and mandatory sentence of life imprisonment should be repealed.
Repeal the “Criminal Punishment Code” (CPC) (Florida Chapter 921):
Florida sentencing guidelines took effect in 1983. For the most part they worked well, providing a consistent sentencing range across the state while allowing judges the discretion to deviate in special cases. After tweaking the guidelines in 1994 and 95, the legislature enacted the criminal punishment code in 1998. The CPC shifted the balance to the prosecutors by establishing a “floor” (a minimum prison sentence) but removing the ceiling (the maximum sentence may be imposed in any case). Put another way, the CPC greatly expanded the ability of judges to sentence harshly while limiting their ability to mitigate. Prison sentences are mandatory in many different types of cases.
The CPC made explicit the incarceration philosophy of 20 years ago: “The primary purpose of sentencing is to punish the offender. Rehabilitation is a desired goal of the criminal justice system but is subordinate to the goal of punishment.” The end result of this goal was a hundred thousand Floridians in prison. At this point the CPC is too complicated and harsh to allow for a reformulation of sentencing policy. Legislators would be better off scrapping the CPC and starting over.
Repeal Minimum Mandatory, Habitual Offender and Prison Release Reoffender Laws:
Repealing the CPC should be only one aspect of comprehensive sentencing reform in Florida. Thousands of Florida prisoners are confined under a “minimum mandatory” sentence imposed by a trial judge who had no discretion to do otherwise. While harsh drug law minimum mandatories have received much of the attention, Florida law contains so many different minimum mandatories that they are almost impossible to categorize or count.
There are multiple examples of the injustices wrought by minimum mandatory sentences that have been collected by advocacy groups like FAMM (Families Against Minimum Mandatories). The fundamental problem with all laws that limit judicial sentencing discretion is that they prevent the individualized consideration of the offender, their crime and their punishment that is fundamental to American jurisprudence. While “safety valves” have been considered to allow certain offenders to avoid these harsh sentences, minimum mandatories really have no legitimate justification to begin with.
Require the Prosecutor to Estimate and the Court Consider the Cost of Incarceration in Every Case where a Prison Sentence is Sought:
Prison beds should be treated as a finite resource and reserved for dangerous offenders or those offenders who have exhausted all other reasonable alternatives. “Because recidivism rates decline markedly with age, lengthy prison sentences, unless they specifically target very high-rate or extremely dangerous offenders, are an inefficient approach to preventing crime by incapacitation.”
Philadelphia’s District Attorney, Larry Krasner, requires his staff to justify to the Court any request for a prison sentence. According to Krasner; “"A dollar spent on incarceration should be worth it. Otherwise, that dollar may be better spent on addiction treatment, on public education, on policing and on other types of activity that make us all safer."
A policy like this could have important implications in Florida where there is wide disparity in incarceration rates amongst the judicial circuits. The legislature could reward those circuits that use fewer prison resources. The costs of incarceration should be compared to the potential for restitution or other rehabilitative efforts.
Prison Release Reform:
Florida has over 96,000 inmates, at a cost of over $20,000 per inmate annually and no way to review their sentences or consider possible release into the community. Nearly a quarter of these prisoners are over the age of 50. Parole was abolished in the early 1990’s, and all inmates must serve at least 85% of their sentence. While there is a “conditional medical release” authorized by statute, the restrictions make it essentially unworkable. There is no benefit to our society in caging elderly and seriously ill people who could be safely released to their families. Florida’s compassionate release program should be dramatically and immediately expanded.
Thousands of other inmates have been sentenced to extraordinarily long prison sentences at considerable financial cost to the state. Many of these people pose little threat to public safety and could be supervised in the community. Because of Florida’s “85%” law, the Florida Department of Corrections is unable to consider releasing any of these prisoners. That law should be repealed.
Florida needs a mechanism by which a prisoner’s sentence can be reviewed after time, and his or her release considered. We abolished parole and perhaps that was for the best. Parole boards around the country have proven ineffective at carrying out their responsibilities in a transparent and consistent manner. While executive clemency is technically available, it is rarely used and not up to the task of reviewing thousands of cases.
The best option may be to expand the ability of trial judges to review and modify the sentences that came out of their courts. Rules and guidelines could be developed to determine eligibility and process. Courts are well versed in providing notice to affected persons, transparency to the community and individualized consideration of offenders.
Abolish the Death Penalty:
Anyone who has ever had any contact with a capital case in Florida is all too familiar with fundamental flaws in the system. Death penalty cases take considerable time, treasure and talent from the rest of the system. At its core, capital punishment is a lie to the community, promising a reliable determination of who should live or die. In reality this has not only proven impossible but has also resulted in a terrible body of law and the wrongful convictions and execution of innocent persons. While juries continue to consistently reject the death penalty around the state, its costs are hidden from public view. Abolishing the death penalty will help restore confidence in the system and result in the immediate savings of hundreds of millions of dollars, short and long term.
Reduce Life Sentences:
In Florida, a sentence of life imprisonment without possibility of parole (LWOP) is the functional equivalent of the death penalty; inmates remain in custody until they die. In 2012, Florida was home to more than 12,500 prisoners sentenced to life more than half of who are African Americans. These include inmates like Alethia Jones, a 54 year-old diabetic amputee who has already served 13 years of a life sentence for her role as accessory to the sale of a single piece of cocaine.
Should it really be the public policy of the State of Florida to routinely cage human beings for their entire natural life, with all of the attendant costs and consequences? Perhaps such a sentence may be an appropriate substitute for the death penalty in the most extreme murder cases. Otherwise, judges should be given options and discretion in assessing the harm caused by the offender and the prospect that they could be safely released into the community at some point in the future. Life sentences should be rare and subject to reevaluation.
Reduce Financial Obligations and Probation:
The goal of “cash register justice” was to have defendants bankroll the system. In reality, many defendants cannot afford to pay and are pushed into a cycle of debt that makes it difficult to reintegrate them in to society. While court fees present a challenge for low-income defendants, they’re also challenging for the judges, court personnel and probation officers who are obligated to impose and collect them. As noted by the Brennan Center: “Aggressive collection practices result in a range of collateral consequences. Missed payments produce more fees. Unpaid costs prompt the suspension of driving privileges.”
Lengthy probation terms are counterproductive, using scant resources to monitor and potentially imprison an offender years after their crime. As one probationer explained: “The system has also created an additional layer of law enforcement control, intrusion, and surveillance—especially in communities of color, which are heavily policed already. The system needs an overhaul. People who are monitored must be treated with human dignity. Our rights are often denied because of policies, procedures, and rules that are seldom explained and often administered arbitrarily. When we have been treated unfairly, there is no clear process to register grievances or appeal decisions that affect every aspect of our lives, including our very freedom.”
Reform the Adversary System:
As a trial attorney, I continue to believe in the adversary system when it comes to determining a person’s guilt or innocence, and I would rather see a jury than a judge any day. But I no longer believe the adversary system is appropriate for most plea bargains or sentencing hearings. When I first started in the 1980’s, judges typically acted as mediators during the plea bargaining process and this helped resolve many cases. Over time, judges withdrew from “getting involved” and prosecutors were given more power by the legislature. This has resulted in a vastly uneven negotiating position between the parties and results in “open pleas” to the court, lengthy sentencing hearings and uncertain and inconsistent outcomes.
A better model is found in the various specialty courts that have taken hold around the court. All of the participants in these drug, mental health and veteran’s courts are working towards the same outcome. Judges get involved in the case early and use incentives and sanctions to address the underlying behavior that resulted in an arrest. Even in more serious cases, judicial involvement with an eye towards resolution would improve plea-bargaining. Rather than be conducted in secret these hearings would allow participation by all interested parties and would be transparent to the public. Restorative justice practices that identify the true needs of victims continue to show promise when implemented.
For the adversary system to work, everyone needs to play by the rules. This is particularly true of the most powerful actor in the courtroom – the prosecutor. The Florida Rules of Criminal Procedure and Rules of Professional Responsibility each impose a host of responsibilities upon our State Attorneys. While prosecutorial misconduct is described in almost every issue of the Florida Law Weekly, offenders are rarely punished. Repeated findings of “harmless error” by the appellate courts incentivize bad behavior. At the moment, the best way to hold elected State Attorneys accountable for the misdeeds of their staff is at the ballot box.
If we are to have a system empowered to lock people in cages, we have to have confidence that the outcomes are reliable. Some basic steps, like recording interrogations, establishing an independent forensic science commission and limiting jailhouse “snitches” are essential to that determination. To ensure compliance we must ensure that our indigent defense programs are well funded and adequate to meet the need and that our courts are vigilant in their enforcement.
Perhaps the most important reform would be to improve the jurisprudence of our District Courts of Appeal. Law is only meaningful to the extent that it is enforced. Our DCA’s were intended to be the final appellate stop for most cases. They have the obligation, therefore, to correct trial court error in order to ensure fundamental fairness and the uniform statewide application of our laws.
Unfortunately, Florida appellate courts have long resorted to use of the “per curiam affirmed” (PCA) in most criminal cases. No matter how serious the case or how significant the issues involved, the District Courts of Appeal typically offer no explanation for their rulings. Florida is one of the few states that allow this practice. I am of the opinion that nothing has been more corrupting to Florida law. If nothing else, the widespread prevalence of PCA’s, particularly in criminal cases, has contributed to a loss of confidence in the judicial process. “(I)t is too easy for a party who receives a PCA, particularly after having paid the filing fee and hired an attorney who wrote a persuasive brief at some expense to become skeptical of a judicial system that responds with a PCA and no explanation.” Additionally, prosecutors and trial judges are free to operate under the assumption that there is little chance the case will be reversed, no matter the error.
A solution has been proposed by Craig Leen, city attorney of Coral Gables, who recently served as Chair of the Ad Hoc Subcommittee on Per Curiam Affirmances for the Florida Appellate Court Rules Committee. Leen proposed a constitutional amendment to the Constitutional Revision Commission (CRC) that added a sentence after the second sentence in Article V, Section 1 of the Florida Constitution relating to Courts: “All appellate decisions must include an explanation of the basis for the decision. He argues: “The exercise of judicial power receives legitimacy from citation to precedent or an explanation as to why the law requires a certain outcome.” Though the CRC did not forward this proposal to the voters, the Florida Supreme Court could require this of the District Courts of Appeal, perhaps with certain limited exceptions.
It may seem politically unrealistic to propose major reforms such as these, when Florida has been unable to pass even the modest legislation proposed so far. The problem is that our criminal justice system is an ongoing humanitarian disaster that costs us the equivalent of a major hurricane every year. Unless major changes are proposed, debated and implemented, the disaster will continue unabated. Reforms that seem impossible now can be achieved through advocacy and effort.
The agenda provided here is only the beginning. Florida’s juvenile justice and mental health community continue to need attention. Laws governing firearms, sex offenses and self-defense need a rewrite. Education, rehabilitative and release programs for prison inmates should be strengthened. Local law enforcement must be made less threatening and more responsive to the community. Rather than tinker around the edges, Florida policy makers should boldly move forward with a complete overhaul of the state’s criminal justice system.
 Florida Dept. of Corrections, Timeline 1980 – 1986, found at http://www.dc.state.fl.us/oth/timeline/1980-1986d.html
 Rick Scott, GOP House leaders cut drug programs, slashing hundreds of job, Tampa Bay Times (May 25, 2018) found at http://www.tampabay.com/florida-politics/buzz/2018/05/25/rick-scott-gop-house-leaders-cut-drug-programs-slashing-hundreds-of-jobs/
 Fla. Stat. 907(3)(a)
 “U.S. drug overdose deaths continue to rise; increase fueled by synthetic opioids” CDC (March 29, 2018) found at https://www.cdc.gov/media/releases/2018/p0329-drug-overdose-deaths.html
 Hawk, K. F., Vaca, F. E., & D’Onofrio, G. (2015). Reducing Fatal Opioid Overdose: Prevention, Treatment and Harm Reduction Strategies . The Yale Journal of Biology and Medicine, 88(3), 235–245.
 “Principles of Harm Reduction,” Harm Reduction Coalition http://harmreduction.org/about-us/principles-of-harm-reduction/
 “Serving Life for Providing Car to Killers,” New York Times (12/4/07) found at https://www.nytimes.com/2007/12/04/us/04felony.html Holle had his sentence reduced to 25 years by Florida’s clemency board in 2015.
 Fla. Stats. 782.04(2) and 782.04(3)
 Fla. Stat. 921.002(1)(b)
 “Criminal Justice Facts” from The Sentencing Project, found at https://www.sentencingproject.org/criminal-justice-facts/
 “Philadelphia's New DA Wants Prosecutors To Talk Cost Of Incarceration While In Court” March 31, 2018 found at: https://www.npr.org/2018/03/31/598318897/philadephias-new-da-wants-prosecutors-to-talk-cost-of-incarceration-while-in-cou
 “Quick Facts About the Florida Department of Corrections” found at http://www.dc.state.fl.us/oth/Quickfacts.html
 Annual Report of the Florida Department of Corrections 2016-17 at 16.
 Fla. Stat. 944.275
 See Adam Tebrugge, Opening the Back Door: A Proposal to Expand Judicial Modification of Sentence, The Florida Defender (Winter 2018)
 Ashley Nellis, “Life Goes On: The Historic Rise in Life Sentences in America,” The Sentencing Project, September 2013, found at : http://sentencingproject.org/doc/publications/inc_Life Goes On 2013.pdf.
 Josh Salman “’I Let my Family Down” A $20 crack deal sent Alethia Jones to Prison for Life’” Sarasota Herald Tribune (December 5, 2017) found at: http://projects.heraldtribune.com/one-war-two-races/alethia
 Rebekah Diller “The Hidden Cost of Florida’s Criminal Justice Fees” found at https://www.brennancenter.org/publication/hidden-costs-floridas-criminal-justice-fees (2010)
 Topeka Sam, “It’s Time to Overhaul America’s Broken Probation and Parole Systems” found at: https://www.opensocietyfoundations.org/voices/it-s-time-overhaul-america-s-broken-probation-and-parole-systems
 See Adam Tebrugge “Electing Better State Attorneys in Florida” The Defender (Spring 2018)
 Craig E. Leen, Without Explanation: Judicial Restraint, Per Curiam Affirmances, and the Written Opinion Rule, 12 FIU L. Rev. 309, 320 (2017). Available at: http://ecollections.law.fiu.edu/lawreview/vol12/iss2/7
 Id at 328