How to Save Florida’s Prisons
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An easy plan for sustained success
1. Confirm FDC’s furlough and release authority during public health emergencies.
From nearly the beginning of the pandemic, FAMM argued that the Florida Department of Corrections (FDC) has the power to furlough certain prisoners as part of its overall pandemic response. Our position was (and remains) unambiguously correct — there simply is no reasonable alternative position — but somehow FDC still managed to pretend it lacked the relevant authority. As a result, some of the people who might have been furloughed got sick or died. This was suboptimal. To avoid future confusion, and to ensure FDC has the tools necessary to respond adequately to future pandemics, the Legislature should clear up any ambiguity — pretend or otherwise — about the scope of FDC’s furlough authority by adopting FAMM’s position, and further make it clear that FDC has the unilateral authority to also release some prisoners during public health emergencies.
Specific steps: Pass SB 974/HB 1427.
2. Reduce the elderly prisoner population, and release low-risk chronically ill prisoners.
According to the most recent FDC Annual Report, as of June 2020, 27 percent of Florida’s state prisoners were at least 50 years old, and that number is expected to rise. Meanwhile, many of the aging prisoners are also chronically ill. Per the National Institute of Corrections, the annual cost of incarcerating those 55 or older who have chronic or terminal illnesses is two to three times that of others on average.
An aging, increasingly sick prison population is a function of putting people in prison for too long. It’s expensive, unjust, and, given the universally recognized truth that people tend to age out of crime, counterproductive to public safety. (Every dollar spent to keep a prison cell occupied by a 70-year-old man who poses no threat to public safety instead of on arresting, prosecuting and incarcerating a 22-year-old man in the prime of his criminal career has an effect of increasing crime on net.)
It is almost certainly the case that the average age of Florida’s prisoners is too high. The solution is to release some of the elderly people who are in prison now, and to stop putting people in prison for so long. Since the status quo is expensive, unjust, and counterproductive to public safety, fixing this problem will save money, restore justice in individual cases, and improve public safety outcomes. Let FDC identify and release sick and elderly prisoners who pose no reasonable threat to public safety.
There couldn’t be a bigger no-brainer than this. Failing to get this done this year is negligence per se. It’s legislative malpractice — and taxpayers are the plaintiffs!
Specific steps: Pass SB 232.
3. Incentivize rehabilitation and good behavior.
For a few decades now, Florida’s sentencing policy strategy has been to identify the dumbest thing any other state is doing, then do that same thing but worse. Florida’s so-called “truth in sentencing” law is no exception. While some other states passed laws that mandated an 85 percent time served requirement before violent offenders were eligible for release, Florida did the same thing, except we applied it to everyone, including first-time nonviolent offenders.
This move — quintessentially Floridian — created the entirely foreseeable but nevertheless unintended consequences of keeping people in prison longer than necessary and eliminating any incentive for prisoners to engage in the sort of programming that can help them succeed upon release. Bang up job!
Florida adopted its current 85 percent law in 1995, which means most people with brains pegged all the problems with the law around 20 years ago. But all of those problems still exist today because intense tax-funded lobbying by law enforcement special interests has made the law next to untouchable politically.
I hesitate to add this next point, since Florida tends to react to public safety evidence the way Dracula reacts to a cross, but the best available evidence suggests Florida can reduce recidivism and eliminate some unnecessary incarceration at the margins by allowing prisoners to earn time off their sentences by completing rehabilitative programming. That move would create incentives for prisoners to use their time productively, which would go a long way toward eliminating idleness that can lead to disorder, in turn providing at least some relief for a system that remains dangerously understaffed. Not for nothing, it turns out “rehabilitation credits” would also save about $800 million over the next six years, including about $100 million over the next two years. When you’re facing down a $2 billion budget deficit, that ain’t chicken feed!
Specific steps: Pass SB 1032/HB 235.
4. Trigger “control release” when staffing reaches emergency levels.
A recent headline in the Florida Phoenix read, “Top corrections chief says state prison system is in crisis and could collapse.” One would be forgiven for assuming that characterization was hyperbolic, but it was anything but. Per the article,
Half of the prisons are at “emergency staffing” levels and more soon will be, [FDC Secretary Mark] Inch said, but inmates in the understaffed prisons cannot be transferred to better-staffed prisons because there is not enough room.
To make matters worse, Inch said, the system is expecting a surge in new inmates as thousands of court cases that were delayed due to coronavirus resume under new pandemic precautions.
Secretary Inch warned that the state prison system has been in crisis, and remains so, and warned further that without intervention, and even if the system improves, Florida could be only about two years from reaching the point at which prisons would be vulnerable to “brutality,” “murder,” “rapes” and even riots that threaten the lives of prisoners and corrections officers alike.
State senator Jeff Brandes, Chair of the Senate Judiciary Committee, noted on Twitter that the chronic understaffing of the prison system poses many of the same issues as traditional overcrowding. If he’s right — and he is — the answer is control release.
Under s. 947.146, F.S., Florida Commission on Offender Review (FCOR) is empowered to release into the community some number of prisoners “in order to maintain the state prison system between 99 and 100 percent of its total capacity.” When the system is projected to exceed the total capacity, FCOR qua “Control Release Authority” determines which prisoners get to go home, and releases them. They keep doing this until “the inmate population drops below 99 percent of total capacity and remains below 99 percent for 90 consecutive days without requiring the release of inmates . . .”
This is (almost) exactly what should happen when staffing levels get to the point at which they become dangerous to FDC employees and prisoners. At that level — whatever it is — prisoners should be released until safe staff to prisoner ratios are reestablished. But instead of FCOR, FDC should have unilateral release authority. There’s no reason to include a second layer of bureaucracy here. FDC knows who needs to be there and who doesn’t. Let them make the decisions.
Specific steps: Amend s. 947.146 to give control release authority to FDC when staffing levels are dangerously low.
5. Reinvest savings into FDC.
Conditional medical release, elderly release, control release, and rehabilitation credits will save hundreds of millions of dollars annually by eliminating unnecessary incarceration. (And we haven’t even discussed drug sentencing reform! Mamma Mia, the savings!!) It would be great to return this money immediately back to the taxpayers who have been ripped off for decades to pay for it. Unfortunately, that “peace dividend” should probably wait. (But if we play our cards right, it’ll come!)
FDC is in bad shape. Most prisons are old, and many are falling apart. Vehicle fleets are pitiful. Publicly run facilities are not climate controlled, which leads to dangerous heat conditions in the summer and dangerously cold conditions in the winter. Facilities are dangerously understaffed in part because state prisons can’t compete with local jails (and adjacent state prisons) for employees, and can’t keep employees once they’re hired. The food is terrible, phone calls are a crushing financial burden on already strapped families, and there simply isn’t enough programming to meet the needs of even a reduced prison population. FDC needs more staff, more teachers, more drug treatment, more . . . well, everything, really. And all of that costs money.
For too long, the Department of Corrections has been given the nearly impossible task of managing an enormous prison population on a budget that might be adequate for a population around 3/5 the size of ours. (To get a sense of the task, try trying an 8-foot string around two trees ten feet apart.) Prisons should be safe and clean and healthy, and that can’t happen unless the system is funded adequately. So, let’s do that.
Specific steps: Earmark sentencing reform savings to boost FDC’s budget.
6. Establish independent oversight.
As an initial matter, bureaucracies should never just be trusted to exercise power prudently. (Really, nobody should.) This is especially true when a bureaucracy is entrusted with direct power over comparatively powerless people. And it is really, especially true when power is exercised behind closed doors, as is necessarily the case in prisons and jails.
By nature of the power dynamics between staff and prisoners, and because those dynamics exist necessarily in places closed off to the kinds of public supervision to which, say, EPA regulators are subjected, corrections environments — perhaps inherently and perhaps uniquely — create enormous risks of abuse of power.
As Professor Michele Deitch has noted repeatedly, “oversight” is not a goal in and of itself. “Rather, oversight is a means of achieving the twin objectives of transparency of public institutions and accountability for the operation of safe and humane prisons and jails.”
Oversight is not about punishment, or assigning blame, or trying to “catch” corrections staff. It’s about creating the framework that maximizes the probability that prisons will become and remain safe, healthy places of rehabilitation that protect the rights and due process of prisoners and staff alike.
Florida’s prisons need independent oversight. Decades of underfunding and understaffing, of cutting corners and cutting costs, and failing to relieve mounting pressures on the system have created a situation in which both prisoners and corrections professionals too often do not feel safe, and a poisoned culture in which women can be subjected to systemic sexual torture for 15 years and no one has the courage to do anything about it.
Independent oversight will solve many of the systemic, cultural factors that contribute to these admittedly intractable problems. As FAMM president Kevin Ring noted,
Several states have established effective prison oversight offices to great success. These offices, sometimes called “ombudsmen,” typically are independent from state Departments of Corrections. Their powers include the ability to enter and inspect prisons without notice, conduct confidential interviews with incarcerated people and prison staff, recommend improvements and monitor their implementation, access data and records, and even help resolve complaints from families and prisoners.
Florida should follow suit and adopt independent oversight of its state prison system. The result will be safer, healthier prisons that are transparent and accountable.
Specific steps: Pass FAMM’s model independent oversight bill.
Conclusion
So there you have it!
Emergency release authority; conditional medical release and elderly release; rehabilitation credits; control release; adequate FDC funding; and independent oversight.
That’s six easy things the Legislature can do this year to save the prison system from its otherwise inevitable collapse, and begin the process of building a system that will be the envy of the rest of the country instead of the object of pity and derision it is now.
Each of these things will have to be done at some point, and everything on this list would pass both chambers with overwhelming bipartisan support if it was put up for an honest vote on the floor. What are we waiting for?
