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.
[10] See OPPAGA “Direct file of children to
adult court is decreasing” (March 2017) https://tinyurl.com/y8jb27so
[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.
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