Wednesday, October 24, 2018

FLORIDA MUST MAKE CRIMINAL JUSTICE REFORM A PRIORITY

    Our state is in desperate need of new approaches to criminal justice. More than 96,000 people are locked in our prisons, many of them elderly and sick, at an annual cost to taxpayers of 2.4 billion dollars. Thousands of these prisoners were not convicted of any crime of violence yet will be locked up for years under harsh sentencing laws. Florida prisoners are provided with few educational or rehabilitative opportunities while incarcerated. In order to pay for the healthcare costs of so many prisoners, the Florida Department of Corrections closed down most drug treatment programs for inmates. What we have is an ongoing disaster that the legislature has yet to fix.
     The Florida Campaign for Criminal Justice Reform is a nonpartisan coalition of religious, policy and justice oriented groups seeking to bring common sense solutions to Florida’s criminal justice system. We are focused on safely reducing Florida’s incarcerated population and reducing racial disparities within the criminal justice system. States across the South and the country have shown that criminal justice reform can be done in a bipartisan way that saves taxpayer money, improves public safety, and rehabilitates those that have broken the law. (More information at BetterJusticeFl.com) While 33 states have enacted comprehensive criminal justice reform over the past decade, Florida is not one of them.

      Last Monday in Bradenton, members of the campaign met with citizens who have been directly impacted by the criminal justice system. We heard stories from the family members of inmates about the hardship long term incarceration causes. The event was held in Senator Bill Galvano’s district because he has a historic opportunity as the President of the Florida Senate to make criminal justice reform a priority in the next legislative session.

     On Tuesday and Wednesday, the Florida Bar convened a criminal justice summit. This unprecedented event brought together judges, prosecutors, public defenders, legislators and advocates in one room to identify and work through issues. Participants received training on recognizing and eliminating implicit bias that can lead to racial disparities in sentencing. We learned about the conviction integrity units prosecutors in Jacksonville and Tampa have established to not only examine cases of innocence, but also to prevent wrongful convictions in the future. Progress has been made in juvenile justice thanks to implementation civil citation programs that provide a meaningful alternative to arrest and prosecution of offenders

      The data shows that crime rates have fallen dramatically but our prison population remains basically the same. This is due to the extreme length of many sentences and absence of any meaningful way to review those cases to consider whether the prisoner can be safely released. Florida has more than 100 different “mandatory minimum” sentences that tie judge’s hands and requires them to send people to prison without any chance to consider the facts and circumstances of the crime. While consensus has not been reached on all solutions, there was a communal understanding that there is a lot of hard work to be done if we want a criminal justice system that is fair and in which we can have confidence. However, concerned citizens need to continue to push our legislators to make comprehensive criminal justice reform a priority in our next legislative session.


Adam Tebrugge is a board certified criminal trial attorney with more than 30 years of experience in Sarasota and Manatee counties.



This column was published in the Sarasota Herald Tribune online edition on 10/22/18 and in the print edition on 10/23.

Friday, October 19, 2018

How to fight the opiate crisis

This spring, at the direction of our mayor, Miro Weinberger, Burlington police teamed up with Johns Hopkins, the American Health Initiative, and the Police Executive Research Forum to give police and city leaders things they could do, or advocate for, to reduce the nation's opioid addiction deaths.
They are based on science, and medicine, and they *will work* to lower the number of fatal overdoses and addiction-related deaths. And they're not especially police-like, which wasn't an accident because the police aren't going to stop the dying themselves. Here are some of the highlights and of our city's general strategy, which is a good one for the nation:
- Support and propagate needle exchanges (done in BTV);
- Give out buprenorphine at needle exchanges to basically any user who requests it (BTV is doing it);
- Give out buprenorphine at the emergency room to anyone who presents with an addiction and requests it (BTV doing it);
- Treat every prisoner who needs it with buprenorphine, methadone or vivitrol as best fits them (Vermont is at least trying);
- Stop arresting and prosecuting for simple misdemeanor-level possession of non-prescribed addiction treatment meds (our city's police & prosecutor policy);
- Stop requiring total abstinence in recovery housing and allow people stabilized on addiction treatment meds to live in them (not even close);
- Equip users with the tools to test their drugs for fentanyl (Vermont is doing it);
- Create enough capacity to eliminate wait lists at treatment hubs (almost there in VT);
- Train primary care doctors to treat addiction and prescribe addiction meds (making progress in VT);
- Return the opioid prescribing rate to pre-epidemic levels (on the way in VT);
- Recognize addiction as a chronic disease and that abstinence-based therapy only works a small percent of the time, for certain people (old stigmas die hard);
- Saturate communities with Naloxone (done in Vermont)

By Burlington, Vt. Police Chief Brandon del Pozo

Sunday, July 22, 2018

An Overhaul, not a Tuneup

AN OVERHAUL, NOT A TUNEUP
Florida’s Criminal Justice System is in Need of Top to Bottom Repairs

By
Adam Tebrugge

Introduction:
        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.

Court Reform:
       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.
    
Conclusion: 
       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. 


[1] Florida Dept. of Corrections, Timeline 1980 – 1986, found at http://www.dc.state.fl.us/oth/timeline/1980-1986d.html
[1] 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/
[1] Fla. Stat. 907(3)(a)
[1]  “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
[1] 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.

[1] “Principles of Harm Reduction,” Harm Reduction Coalition http://harmreduction.org/about-us/principles-of-harm-reduction/
[1] “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.
[1] Fla. Stats. 782.04(2) and 782.04(3)
[1] Fla. Stat. 921.002(1)(b)
[1] “Criminal Justice Facts” from The Sentencing Project, found at https://www.sentencingproject.org/criminal-justice-facts/ 
[1] “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
[1] “Quick Facts About the Florida Department of Corrections” found at http://www.dc.state.fl.us/oth/Quickfacts.html
[1] Annual Report of the Florida Department of Corrections 2016-17 at 16.
[1] Fla. Stat. 944.275
[1] See Adam Tebrugge, Opening the Back Door: A Proposal to Expand Judicial Modification of Sentence, The Florida Defender (Winter 2018)
[1]  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.
[1] 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
[1] 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)
[1] Id.
[1] 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
[1] See Adam Tebrugge  “Electing Better State Attorneys in Florida” The Defender (Spring 2018)
[1] 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
[1] Id at 328
[1] Id

Tuesday, July 10, 2018

Electing Better State Attorneys in Florida



INTRODUCTION

“The primary duty of the prosecutor is to seek justice within the bounds of the law, not merely to convict.  The prosecutor serves the public interest and should act with integrity and balanced judgment to increase public safety both by pursuing appropriate criminal charges of appropriate severity, and by exercising discretion to not pursue criminal charges in appropriate circumstances. The prosecutor should seek to protect the innocent and convict the guilty, consider the interests of victims and witnesses, and respect the constitutional and legal rights of all persons, including suspects and defendants.[1]

      There has recently been increased recognition that prosecutors are the most powerful actors in the criminal justice system. Fordham Law professor John Pfaff argues that prosecutors are also primarily responsible for the phenonomenon of mass incarceration[2]. Whether due to political realities, stasis, or the nature of the adversary system itself, prosecutors have traditionally argued for lengthy sentences of incarceration regardless of the costs to society. Additionally, prosecutors possess great discretion but are rarely held accountable for their actions, except potentially by the voters.

       Around the country a new wave of reform-minded prosecutors has begun to win elections[3]. These candidates resist traditional appeals to “law and order” or locking up criminals and throwing away the key. Instead, this new breed of prosecutors are more responsive to the communities they serve. They recognize that incarceration is expensive and does little to change behavior positively. Once elected, these reform prosecutors are willing to work with other actors in the criminal justice system to implement policies designed for better outcomes.

      Florida has lagged behind other states when it comes to criminal justice reform. Our legislature has done little to stem the tide of inmates entering the system or to provide rehabilitation to them while incarcerated. Though significant reforms must be accomplished in the legislature, many genuine and positive changes can be accomplished at the local level by state attorneys.

       The 20 elected State Attorneys are constitutional officers with enormous power in their respective judicial circuits. In 2016, three candidates who ran on explicit reform platforms unseated incumbents who had been criticized for harsh policies. Aramis Ayala in the 9th Circuit (Orlando), Melissa Nelson in the 4th Circuit (Jacksonville) and Andrew Warren in the 13th Circuit (Tampa) have each made significant changes to their offices in the short time since their election. However, in other circuits, long-time incumbents continue to oppose even modest reform efforts. Additionally, the Florida Prosecuting Attorneys Association has proven to be a significant roadblock to reform bills in the legislature.

     In 2020, 19 of Florida’s 20 State Attorneys will be up for election. With criminal justice reform issues taking on increased importance, voters in 2020 will have an opportunity to evaluate a candidate’s approach to the justice system. If Floridians want meaningful criminal justice reform, we will have to elect State Attorneys who are committed to reform policies. To have that opportunity we need to start the process of identifying those candidates and those issues that will lead to electing better State Attorneys in Florida.

   FLORIDA

     Article V, Section 17 of the Florida Constitution, requires that a State Attorney be elected for a four-year term in each judicial circuit. Chapter 27 of the Florida Statutes govern their powers and responsibilities. The Florida Rules of Criminal Procedure provide additional requirements and guidance for prosecutors. Practically speaking, much of the power of the State Attorney comes from custom, tradition, and the personality of the office holder. Policies may vary widely among the judicial circuits depending on the mandates of the elected state attorneys, and this affects the rate of incarceration from each circuit[4].

     Perhaps the most important power vested in Florida prosecutors is the charging decision. Grand juries are required and typically used only in first degree murder cases. All other charging decisions are made by assistant state attorneys. Florida’s Criminal Punishment code bases sentencing recommendations on a scoresheet whose points are based on the charges. Other laws establish minimum mandatory penalties if certain allegations are made and proven. Still other laws require sentencing enhancements if the prosecutor elects to charge the defendant as a habitual offender or prison releasee reoffender. Once the prosecutor files charges in a case, his or her decision can severely circumscribe the ability of judges to fashion appropriate sentences. Day to day in the courts of Florida, prosecutors control most plea bargains and sentences.

     At the local level the State Attorney influences many aspects of the day-to-day operations of the judicial circuit. The court calendar, trial scheduling and discovery deadlines are all established only after significant input from the prosecutor. Most counties and circuits maintain criminal justice or public safety commissions that set local criminal justice policy. State Attorneys tend to have significant influence at these commissions. Finally it bears noting that the State Attorneys Office is a pipeline to the judiciary. In many circuits more than half the judiciary has prosecutorial experience.

      Elected State Attorneys and their assistants are generally not held accountable for their misdeeds. Trial courts are reluctant to impose sanctions even for egregious misconduct. Appellate courts have developed doctrines such as “harmless error” or “failure to preserve,” which incentivizes misbehavior. Theoretically lawyers who work for the State Attorneys office are accountable to the Florida Bar. In reality prosecutors rarely face sanctions for unethical or abusive behaviors. The best way to hold elected officials accountable is at the ballot box.

      Additionally, the Florida Prosecuting Attorneys Association has significant influence over legislative policy. Led by longtime lobbyist Buddy Jacobs, the FPPA prides itself on standing in the way of reform efforts. Jacobs, who has served for nearly 50 years, has opposed “safety valves” for minimum mandatory sentences, opposed alternative sanctions for first offenders, and opposed judicial oversight over direct file decisions, to name just a few[5]. Although Jacobs serves at the pleasure of the Association, his longevity and institutional memory ensure that he is more powerful than any individual elected member.

       Advocates have been pushing the Florida legislature to adopt a package of minor reforms. These reforms would allow judicial “safety valves” to avoid minimum mandatory sentences for some first time offenders, raise the “felony threshold” for theft to an inflation adjusted $1,000 (from $300), and curtailing the use of monetary bond. None of these reforms have passed the legislature despite a general consensus as to their merits. If Floridians want immediate criminal justice reform, the solution is to elect better state attorneys who will be responsive to community sentiment.

  REFORM POLICIES

     Reformers suggest state attorney candidates should be questioned about a variety of issues and required to provide specific responses. Among the topics:

Monetary Bail Reform: The question posed by reformers is simple: Should a defendant’s wealth determine whether they remain incarcerated pretrial? If defendants are presumed innocent, how can we justify jailing them before trial, particularly for low level offenses? If the goal of bail is to ensure court appearance, are there other tactics that can succeed? Whether working with the chief judge to revise bond schedules, embracing diversion or supervision programs in lieu of bail, or making release recommendations at First Appearances, state attorneys have the power and opportunity to reduce the number of persons held in county jails pretrial.

  Conviction Integrity: Prosecutor offices around the country have begun conviction integrity divisions. In the best examples, trained attorneys and investigators review cases where serious questions have been raised about the guilt of a prisoner under sentence. If major flaws are identified, the prosecutor works with the court and defense counsel to identify a remedy, including retrial or dismissal. Sometimes this review extends to sentencing integrity, which includes codefendants who received widely disparate sentences or offenders who received maximum sentences for relatively minor conduct. In Florida, 4th Circuit State Attorney Melissa Nelson has opened a conviction integrity unit[6]. The 13th Circuit’s Andrew Warren has promised to open one by the end of 2018[7].

      State Attorneys can also lead the way in preventing wrongful convictions. They should advocate for laws that require recording all interrogations, improving eyewitness identification procedures, and strengthening independent forensic science review of cases. Prosecutors should also be cautious about presenting unreliable evidence, whether it comes from a confidential informant or a police officer with a history of false testimony. In the 13th Circuit, State Attorney Andrew Warren has held a wrongful conviction seminar, with presentations by exonerees, to help law enforcement and his staff change behaviors that led to unjust results[8].

  Sentencing Reform: Prosecutors control all aspects of the charging decision, which allows them to substantially control sentencing outcomes. Florida’s criminal punishment code allows the maximum sentence for all felonies but does not allow the court to mitigate sentences except in rare instances and in plea bargains. The result is that almost all cases are resolved by plea bargains between the prosecution and the defense, with little input from the judge. Internal state attorney office policies about making charging decisions and sentencing recommendations therefore determine outcomes in many of Florida’s judicial circuits.

       In Philadelphia, a reform candidate named Larry Krasner was elected District Attorney in 2017. Upon taking office, he issued a memo to his assistants outlining new charging and sentencing policies[9]. The memo requires assistant district attorneys to decline marijuana, paraphernalia and most prostitution charges. Additionally, prosecutors were advised to file lower gradations of theft charges and to increase reliance upon diversionary and reentry programs instead of jail. When jail is requested, in most cases the recommendation should be below the lowest end of the sentencing guidelines. Prosecutors must also announce and justify on the record why they are seeking incarceration and the financial cost of the sentence to taxpayers.

      In Florida, State Attorney candidates should be questioned about their support for diversion, reentry, and sentencing reform. They can also be asked whether they will take into account the collateral consequences of criminal convictions, such as barriers to employment or immigration status. Restorative justice practices have potential to help victims recover from criminal acts, and candidates should be asked about their familiarity with and support of such practices. State Attorneys can also ensure that fines and fees are reasonable, proportionate, and transparent and that probation terms are limited.

  Direct File Reform: Florida law presently allows the State Attorney wide discretion as to whether to prosecute juvenile offenders in adult court. The direct file decision is not reviewable by the judge in most instances. Prior to the elections of 2016, the 13th judicial circuit led the state in direct files (131 individuals in 2015-16)[10] Following Warren’s election, direct files of juveniles declined by 25% in his first year in office[11].

Accountability: Prosecutors are immune for most actions taken while in office. It is rare to see convictions reversed, even when the courts determine there has been prosecutorial malfeasance. The Florida Bar rarely reports that any assistant state attorney has been sanctioned for misconduct. Therefore, if there is to be accountability at present, we must rely on the elected State Attorney to adopt and enforce internal policies and discipline. State Attorneys should not only ensure compliance with the requirements of Brady and Giglio, they should demand professionalism from all their assistants. State Attorney offices must also be prepared to investigate and prosecute unlawful use of force crimes committed by law enforcement officers. They should be responsive to community input and oversight while maintaining independent judgment and transparency.

  Death Penalty: Shortly after taking office, 9th Circuit State Attorney Aramis Ayala announced that her office would no longer seek the death penalty. Governor Scott then removed her from a number of pending prosecutions and reassigned them to another state attorney. Ayala challenged this in the Florida Supreme Court but lost. In response, Ayala announced she was forming a death penalty review panel to advise her in capital cases[12]. Melissa Nelson in the 4th Circuit and Andrew Warren in the 13th Circuit have substantially curtailed their offices pursuit of the death penalty since taking office. Now that a unanimous jury is required to impose the penalty, death sentences have fallen dramatically around the state. Voters should question candidates about the substantial expenses involved in capital cases and whether the office will be cautious about seeking death.

   Criminal Justice Reform: State Attorneys and candidates for the office should be asked if they are satisfied with the legislative positions taken by the Florida Prosecuting Attorney’s Association. Candidates should pledge to support outcome-based reforms that will reduce reliance on incarceration, and support treatment and rehabilitative alternatives to jail. At the local level, the State Attorney should be seen as a leader in efforts to make the system more fair, efficient and reliable. As always, actions speak louder than words. Be wary of elected State Attorneys who claim to be reformers when this is not supported by their record.

 THE 2020 ELECTIONS
       An elected State Attorney serves a four-year term. In 2020 reformers will have an opportunity to effectuate change, as 19 of Florida’s 20 State Attorney offices will be up for election[13]. It is possible that as many as a third of the incumbent office holders may choose not to seek reelection. Criminal justice reform is truly a nonpartisan issue and has liberal and conservative supporters, so it is important not to judge a State Attorney candidate on the basis of his or her party affiliation. Keep in mind that in Florida, many races can be decided at the primary level.

      Circuit-wide campaigns can be expensive and cover a large geographic territory. The best candidate will be someone with extensive criminal justice experience who also has experience in community affairs. If a candidate has served as an assistant state attorney, his or her track record should be thoroughly analyzed. Experienced criminal defense lawyers may be qualified, and there is also precedent of judges running for State Attorney.  The local criminal justice community should be able to identify a suitable candidate in each circuit and then ensure that person receives support.

   A number of groups have announced their intentions to assist reform candidates for State Attorney in upcoming elections. The American Civil Liberty Union’s Campaign for Smart Justice has begun a nationwide public education effort about the importance of prosecutors. “Real Justice Teams” (a political action committee) notes that the United States has 2,400 elected prosecutors and claims: “We exist to place progressive, reform-minded women and men who want to end mass incarceration in each of these 2,400 positions.[14]” “Color of Change” is another PAC that emphasizes racial justice and recently played a role in electing progressive district attorneys in Durham and Mecklenburg Counties in North Carolina. At the University of North Carolina, Professor Carissa Hessick has launched the Prosecutors and Politics Project. This project’s goals are to focus scholarly attention on the democratic accountability of prosecutors, analyze the relationship between prosecutors and politics, and increase voter knowledge about prosecutors and criminal justice issues.

       After election, other groups exist to help support reform-oriented state attorneys. “Fair and Just Prosecution” works with newly elected reform prosecutors to embrace “prevention-oriented approaches to public safety that are rooted in local communities, based on data and evidence, and less punitive whenever possible.[15] A collection of law professors, students, lawyers and advocates concerned about prosecutorial misconduct has started a website where they research mechanisms available to address and improve prosecutorial accountability.[16] A newly elected State Attorney must work with all of the many participants in the criminal justice system in order to effectuate positive change.

Conclusion:

       Florida is a leader in mass incarceration. The billions of dollars spent annually on the Florida Department of Corrections to lock people up might be better used elsewhere. Voters interested in criminal justice reform do not have to wait on the legislative process to see change. At the local level, the elected State Attorney is the most powerful actor and can implement significant reforms upon taking office. Voters need to exercise their ability to hold these powerful elected officials accountable to the communities they serve. The policies of incumbent state attorneys should be closely scrutinized. The election of 2020 provides Florida voters with an opportunity to elect a new class of State Attorneys who will truly “seek justice within the bounds of the law.”



[1] American Bar Association Fourth Edition of the Criminal Justice Standards for the Prosecution Function, Standard 3-1.2(b) “Functions and Duties of the Prosecutor.”
[2] John Pfaff Locked In: The True Causes of Mass Incarceration and How to Achieve Real Reform (2017)
[3]Law and the New Order: A Fresh Wave of District Attorneys Is Redefining Justice by Alan Greenblatt at Governing.com (April 2017 https://tinyurl.com/y7upqesy)
[4] See Florida Criminal Justice Circuit Profiles maintained by the Florida Office of Economic and Demographic Research. 2015-16 (September 2017  https://tinyurl.com/y6why8gj)
[5] See :The Most Powerful Lawyer in Florida is Keeping Criminal Justice Reform by Ron Sullivan at the Huffington Post (4/3/2017 https://tinyurl.com/yc53jz28 )
[6]  See “In a Florida first, Jacksonville’s state attorney hired someone to exonerate inmates,” by Andrew Pantazi--Jacksonville.com (January 29 2018 https://tinyurl.com/yaho8nju)
[7] See “Hillsborough State Attorney vows to create conviction integrity unit this year” by Dan Sullivan—Tampa Bay Times (April 23, 2018 https://tinyurl.com/y7qhjztf)
[8] Id.
[9] See “New Policies Announced February 15, 2018”  https://tinyurl.com/ybzrx8jg
[10] See OPPAGA “Direct file of children to adult court is decreasing” (March 2017) https://tinyurl.com/y8jb27so
[11] See “State Attorney’s Community Report”  (January 2018 https://tinyurl.com/yauq8b3b)
[12] See “State Attorney Ayala rescinds her death-penalty ban” by Gal Tziperman Lotan—Orlando Sentinel (September 1, 2017 https://tinyurl.com/y73q7drg)
[13] Only the 20th Circuit will elect a new State Attorney in 2018.
[15] www.Fairandjustprosecution.org  “Our Work and Vision.”