by David M. Reutter

Florida taxpayers spend around
$2.3 billion annually on the state’s Department of Corrections – twice what they spend on Florida’s 28 public colleges combined. At least five other states also led by Republican governors and GOP legislative majorities – Alabama, Idaho, Mississippi, Nebraska and Utah – have enacted criminal justice reform measures projected to save $1.7 billion over the next two decades. But not Florida.

State lawmakers in Tallahassee debated several criminal justice reforms during the 2017 session. The most significant were included in a series of measures supported by the Florida Campaign for Criminal Justice Reform (FCCJR), composed of more than a dozen organizations working to improve Florida’s justice system. The results of those measures were:

• A proposed task force on criminal justice reform was not created; its 28 members would have included elected officials as well as members of the judiciary, law enforcement, academia, faith groups, advocacy organizations and former prisoners.

• A measure to give judges more discretion to make exceptions to mandatory minimum sentences for non-violent and drug possession offenses – and to choose alternatives to incarceration by expanding eligibility for non-prison sanctions and diversion programs – also failed; it would have revised possession of controlled substance offenses and created a Sentencing Commission to oversee sentencing practices.

• A proposal failed that would have removed certain nonviolent crimes from eligibility for adult charges, to address the fact that Florida prosecutes more children as adults than any other state; it also would have allowed children convicted as adults to retain their voting rights, in addition to granting judges oversight of prosecutors’ “direct-file” discretion, which allows defendants as young as 14 to be sent to adult court without a hearing.

• A pair of measures failed which would have given law enforcement officers discretion to issue civil citations – to both adults and juveniles – who commit certain low-level, non-violent crimes, allowing them to complete diversion programs and avoid arrest records.

• Another proposed bill with potentially huge cost savings died which would have allowed the release of more elderly prisoners who need expensive medical care and are no longer a threat to public safety.

Additionally, the Florida legislature failed to raise the state’s monetary threshold for felony theft, leaving in place the same $300 limit that has existed since 1986.

Florida’s incarceration rate is 23 percent higher than the national average, according to a May 2017 report from the Crime and Justice Institute commissioned by the legislature, and the state has the third-highest prison population in the nation. Florida prisoners “serve significantly longer periods in prison than in other states, including for nonviolent crimes,” the report found. It also stated that while Florida spends over 9 percent of its general revenue on corrections, compared with the national average of less than 7 percent, its crime rate “remains 15 percent higher than the national average.”

“Florida’s antiquated laws put too many people behind bars for too long,” said Scott McCoy, senior policy counsel for the Southern Poverty Law Center. “A majority of states across the South – and across the country – are leaving Florida behind as they adopt bipartisan plans for criminal justice reform. It is time for Florida to take a step in that same direction.”

Howard Simon, executive director of the ACLU of Florida, which is part of FCCJR, noted the state had “loaded up” its prisons “in a way that threatens the safety of inmates as well as correction officers.”

“Continuing to use incarceration in Florida prisons as a substitute for drug and mental health treatment is not financially sustainable,” Simon added.

Christian Camara, the southeast regional director of R Street Institute, which is also an FCCJR member organization, agreed. “Large prison populations are not an appropriate barometer for effective criminal justice,” he said. “Instead, they are oftentimes a symptom of a broken system that imposes a huge burden on taxpayers. Florida should focus on reducing recidivism by prioritizing criminal justice spending to help rehabilitate and restore offenders’ lives while reserving tough penalties against violent criminals.”

In an April 2015 report, the Reason Foundation analyzed the increase in Florida’s incarceration rates and included recommendations for reform. “[W]ith Medicaid gobbling up a growing share of Florida’s budget,” the report stated, “every dollar spent on the prison system is one less dollar available for other priorities – from education and public health to transportation and the environment.”

Noting that Florida’s prison population increased by more than 1,000% between 1970 and 2014 – over five times the rate of population increase during the same period – the report asked, “How did we get to this point?” The conclusion was that lawmakers felt overwhelming political pressure to appear “tough on crime,” which pushed them to enact punitive laws in response to public fears over crime rates.

Helping legislators create the state’s pro-imprisonment track record has been the Florida Prosecuting Attorneys Association (FPAA) – an organization that includes the 20 elected prosecutors for every judicial circuit.

Headed for nearly 50 years by general counsel and lobbyist Arthur “Buddy” Jacobs, the FPAA opposed legislation that would allow first-time drug offenders to get treatment in lieu of jail time. The organization fought for a law allowing prosecutors to alter court records to conceal the histories of informants – which the state Supreme Court ultimately prohibited. The Supreme Court also had to force another change that the FPAA opposed, which made Florida the last state in the country to require a unanimous jury decision in death penalty cases. And it was the efforts of Jacobs and the FPAA during the 2017 legislative session that succeeded in preserving the “direct file” discretion of prosecutors to charge juveniles in adult court.

Four areas of problematic criminal laws were identified in the Reason Foundation report: drug trafficking statutes, the state’s 10-20-life sentencing law, habitual offender statutes and limits on incentive gain-time for prisoners.

Calling Florida’s current laws “wildly disparate” with respect to the types and quantities of drugs required for an offense to be considered drug trafficking, the report noted that prescription painkillers containing oxycodone or hydrocodone “require a very small amount to trigger a drug trafficking charge that carries the same mandatory minimum sentence as trafficking a much larger quantity of other drugs, such as cocaine or marijuana, for example.”

That, in turn, has resulted in “the imprisonment of numerous low-level, non-violent offenders ... increased corrections expenditures, and ... effectively eliminated judicial discretion, which has resulted in unjust and unnecessary punishment in some cases.”

The 10-20-life sentencing law was enacted to deter and incapacitate violent offenders who use firearms during the commission of a crime. The Reason report noted the statute had been “misapplied in some cases,” and that it “cannot be definitively linked to a reduction in violent crime” in Florida.

As for the state’s habitual offender laws, the report found some of them overlapped. Such laws “have required judges to send a number of nonviolent offenders to prison for disproportionately longer terms of imprisonment, even when the judge may believe that doing so is not in the best interest of justice,” the report said. “Only two other states, Louisiana and Alabama, have more inmates serving a life without parole sentence for a nonviolent offense [because they were deemed] habitual offenders than Florida.”

Finally, the Reason Foundation took issue with Florida laws requiring prisoners to serve 85% of their sentence, which limit time-off, gain time and other credits to a maximum of 15% of a prison term. Though most states adopted similar “truth in sentencing” laws to qualify for federal prison construction funds, the report noted they “disincentivize[d] rehabilitation and good behavior,” and required “taxpayers to continue to pay for the incarceration of individuals who may ... [be] ... ready to return to society at an earlier date.”

In conclusion, the Reason report recommended the elimination of mandatory minimum sentences and giving judges more sentencing discretion or increasing the threshold necessary to trigger drug trafficking charges. It also suggested that habitual offender laws only apply to violent offenders, and that prisoners be allowed to earn additional incentive gain-time.

Sadly, none of those common-sense reforms have been enacted in Florida, where state lawmakers are still apparently beholden to tough-on-crime politics while ignoring smart-on-crime policies. 

Sources: Sun-Sentinel, www.betterjusticefl.com, Huffington Post, www.aclufl.org

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