Wednesday, February 28, 2018

Opening the Back Door


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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

8 Maryland Rule of Court 4-345.

9 Wis. Stat. §973.19(2008).

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

No comments: