A Critique of the Florida Bar Criminal Justice Summit

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 4^th 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 13^th Circuit and Aramis Ayala of the 9^th 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, 8^th Circuit State Attorney Bill Cervone described himself as “the loyal opposition” and indicated he was satisfied with the current state of affairs. 2^nd 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.[1]”

   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.[2]” 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.

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[1] “The Most Powerful Lawyer In Florida Is Keeping Criminal Justice Reform At Bay,” by Ron Sullivan (5/3/17) https://www.huffingtonpost.com/entry/the-most-powerful-lawyer-in-florida-is-keeping-criminal-justice-reform-at-bay_us_5909f430e4b0bb2d087409df

[2] “Oklahoma Governor’s Task Force Releases Massive Criminal Justice Reform Policy Package,” (2/3/17) found at Community Resources for Justice http://www.crj.org/news-article/oklahoma-governors-task-force-releases-massive-criminal-justice-reform-policy-package/

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.

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

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