In 2004, Alethia Jones was arrested in
Highlands County. She was charged with helping her sister sell a single piece
of cocaine to an undercover office.1 For her role in the offense, Alethia’s
sister received a four-year prison sentence. But because of her status as a
habitual offender, and because the sale happened within 1,000 feet of a church,
Alethia received a sentence of life imprisonment without possibility of parole.
Now 57 and confined to a wheelchair because she has only one leg, Ms. Jones has
few prospects for release.2
Alethia Jones is
one of more than 96,000 inmates presently serving a prison sentence in the
Florida Department of Corrections (FDC), at a cost of almost $2.5 billion a
year. Hundreds, if not thousands, of these prisoners are serving lengthy
sentences that appear overly severe upon review. There is an emerging consensus
that this “mass incarceration” of citizens is dehumanizing, expensive and
unnecessary. Presently, reform efforts are focusing on reducing admissions to
the prison system by providing community based alternatives and allowing judges
more discretion, particularly when dealing with drug offenders. By closing the
“front door” to prison, the population of inmates will be reduced over time.
Even if these efforts are successful, however, they will do nothing for those
inmates presently serving lengthy sentences.
Prosecutors now
say they would have “proceed(ed) differently” had the Alethia Jones case been
heard today.3 But even if the prosecutor, defense attorney and judge all agreed
that her sentence should be revisited, there is presently no mechanism under
Florida law that allows for this to occur.
Florida Rule of
Criminal Procedure 3.800(c) allows a defendant to ask the trial court reduce or
modify a sentence. The main drawback of this rule is that it requires the
motion be made within 60 days of the sentence becoming final.4 This time
limitation all but renders the rule meaningless because in most cases there
would not have been any significant change in the relevant facts or
circumstances likely to affect the trial court’s decision. And after 60 days
have passed, there is no rule that allows for an inmate to request a
modification of sentence even in cases where it appears that a manifest
injustice took place during sentencing.
If there is
agreement that we should review the sentences of certain inmates to determine
if they can be safely released into the community, what is the best way to
build a “back door?” Previous efforts have proved unsatisfactory. Parole in
Florida was eliminated for non-capital felonies committed on or after July 1,
1984. The legislature has greatly restricted the ability of the FDC to award
gain time, as inmates in Florida must serve a minimum of 85 percent of their
sentence before being eligible for release.5 And while theoretically executive
clemency is a possibility, the process is cumbersome and not designed to review
the cases of hundreds or thousands of inmates.6
In “Changing the
Sentence Without Hiding the Truth,” 52 William & Mary Law Review 465
(2010), Cecilia Klingele argues that judicial sentencing modifications are the
best model for considering sentence mitigation.7 Placing review in the
sentencing court avoids some of the policy concerns that led to the restriction
of other early release mechanisms. Parole, clemency and gain time have all been
rightly criticized for a lack of transparency, standards and accountability.
When inevitably a freed inmate commits a new crime, the legitimacy of these
release mechanisms is immediately called into question.
What if we
expanded the ability of the sentencing court to reduce an inmates’ lawfully
imposed terms of imprisonment when specified criteria have been met? Klingele
argues that judicial sentencing modifications would have more legitimacy
because of the local accountability of the courts. Court proceedings are open
and transparent in a way that neither the parole process or gain time award
decisions can be. Additionally, the courts have the infrastructure already in
place to allow for review, and experienced personnel to work the process
efficiently. A court hearing allows for the participation of all interested
parties, including victims. Courts also have experience crafting plans of
community supervision for the inmate, with input from local providers.
Ideally the three branches of government would
work together in the interest of public safety to design a workable process.
The legislature would identify inmates who are eligible for judicial review.
FDC would provide information about behavior in prison and progress towards
rehabilitation. Ultimately the judge would have the discretion and the
responsibility of determining whether a modification of sentence was
appropriate in a particular case.
A process could
be developed that requires the inmate file a written request that identifies
the change of circumstances or manifest injustice of their sentence. The State
of Florida would have the option of agreeing to the reduction or objecting to
it on any lawful grounds. The sentencing (or successor) judge would determine
whether to grant a hearing. Victims or their representative would be given
notice and the opportunity to be heard. If the court granted the modification
it would have to specify its reasons. There would be limited review based upon
abuse of discretion.
Other states have
successfully experimented with expanded judicial modifications. In Maryland,
the motion to modify must be filed within 90 days, but the court can reserve
ruling for up to five years. A decision to mitigate a sentence must take place
in open court after the judge has heard from the state, defense and victims,
and the court has wide discretionary authority.8 Wisconsin recognizes that
courts have the inherent power to change and modify their own legally imposed
sentences at any time. The inmate’s motion must allege that their sentence was
unduly harsh, or show the emergence of “new factors.”9 If filed within 90 days
of the sentence the motion must be heard, but the court retains the discretion
to hear the motion no matter when it is filed.
The Model Penal
Code (MPC) has considered the idea of a “Second Look” for inmates serving
lengthy sentences.10 Under the MPC draft, a judicial decision maker would have
the ability to reduce the sentence of prisoners who had served 15 years or more
when “in light of current circumstances, the purposes of sentencing … would
best be served by…a modified sentence.” Under this provision, the judge would
have the discretion to appoint counsel and must give notice to prosecuting
attorneys and to victims. Any modification would have to be done in open court
and a decision to modify must be made in writing.
In Florida, one change that should be
immediately considered would be to modify Fla. R. Crim. Pro. 3.800(c) and allow
the trial court to modify a sentence at any time upon stipulation of the State
of Florida and the inmate. This change would allow for immediate relief in some
of the most egregious cases or those where it is appropriate to release an
inmate for medical or compassionate reasons. Elected State Attorneys are
accountable to their communities and are experienced in communicating with law
enforcement and victims. If the State agrees it is unnecessary to continue to
incarcerate an inmate, the community can have confidence that appropriate
factors were considered.
Obviously, there
are a number of issues that would have to be worked out before Florida could
allow for widespread judicial modification of sentences. Decisions would have
to be made regarding eligibility of inmates, criteria for the court to consider,
and rules regulating the process. All of this would take time and effort, but
the alternative is to do nothing and continue to pay the cost, both in terms of
money and human capital. We can and must do better.
1 “One war. Two Races,” Sarasota Herald Tribune
http://projects.heraldtribune.com/ one-war-two-races/alethia.
2 For a good overview of Florida law governing executive
clemency, parole and conditional medical release, see How to Leave Prison Early
(2015) by Reggie Garcia.
3 Email from Assistant State Attorney Brian Haas, 10th
Circuit, to the Sarasota Herald Tribune: “If this case were before the court
for sentencing today, this office would proceed differently.”
http://projects.heraldtribune. com/one-war-two-races/alethia.
4 If the sentence is appealed, the motion may be made within
60 days after the trial court receives the mandate issued by the final
reviewing court. Fla. R. Crim. Pro. 3.800(c). 5 Fla. Stat. 944.275 (2016).
6 Between 1980 and 2013, a total of 148 commutation
applications were approved by the Florida Board of Clemency. Garcia, How to
Leave Prison Early (Appendix A).
7 Much of this article is based upon ideas expressed in the
Klingele article. Anyone interested in this subject should begin by reviewing
that piece.
8 Maryland Rule of Court 4-345.
9 Wis. Stat. §973.19(2008).
10 Model Penal Code Sentencing §305.6 (Tentative Draft No.
2, 2011).
