The Truth about “Truth in Sentencing” in Florida: A Rebuttal to the Florida Sheriffs Association — Part 5

Note: This is Part 5 of an ongoing series. Part 1 is here. Part 2 is here. Part 3 is here. Part 4 is here.

Truth in Sentencing and Florida’s Prison Population

First Time Offenders

Despite its title, much of FSA’s report is actually not an attempt to defend Florida’s 85 percent rule, but is instead an attempted refutation of the claim that Florida’s prisons are filled with first-time, nonviolent offenders. On this point, the report provides interesting data, but fails to show why that data support its policy conclusions.

The FSA report first attempts to show that, under Florida’s Criminal Punishment Code, lower-level offenses don’t yield prison sentences for first-time offenders.[2] However, the report leaves out the important fact that every felony by definition carries at least a five-year maximum prison sentence, and that judges are most of the time free to impose the statutory maximum.

For example, under Florida’s Criminal Punishment Code, a sentencing “score” of 44 points is the lowest score for which the “lowest permissible sentence” includes a state prison sanction. Judges are free to impose non-prison sanctions for offenders who score less than 44 points. However, more than 15 percent of prison admissions in 2018 — about 4,500 admissions — were defendants with sentencing scores between 22 and 44 points.[3] Many of these prison admissions were for offenses that would not alone have scored prison time, and judges in these cases were free to impose a non-prison sanction. Nevertheless, they imposed prison.

This is a common occurrence. As one analysis found:

In the past ten years, over 9,100 drug possession scoresheets in the 22 to 44 point group received a state prison sentence. In FY 2018 alone, these drug possession scoresheets resulted in nearly 1,000 prison sentences, which accounted for 18 percent of prison sentences in the 22 to 44 point scoresheets, and approximately 800 admissions to prison.[4]

The FSA report includes a list of the top 20 crimes for which state prisoners are incarcerated. The report notes that these offenses account for 59.2 percent of the total prison population. Per the report, about 6.4 percent of the prison population, or 5,902 prisoners, are incarcerated for cocaine-related offenses. At around 1,500 prisoners and a $30 million annual cost per facility,[5] Florida taxpayers pay around $120 million every year just to house people serving sentences for cocaine convictions.

Repeat Offenders

The FSA report makes much of the fact that Department of Corrections data shows more than 95 percent of people in the Florida Department of Corrections are repeat offenders. The report does not, however, make any argument suggesting what inferences should be drawn from that data. In fact, this data provides no additional justification for FSA’s defense of the 85 percent rule. The composition of the prison population provides no relevant information about whether any given prisoner was sentenced appropriately, nor any relevant information about the ideal minimum time served requirement.

The FSA report assumes prison is the least coercive sanction appropriate for every “repeat offender.” Of course, this assumption is not necessarily true. For example, a person with two drug convictions or a drug conviction and a low-level theft offense is a “repeat offender,” but those offenses could each be related to substance abuse disorder for which drug treatment, community supervision, or even a relatively short jail sentence is a more effective sanction than prison.

In fact, the Legislature’s own research arm, the Office of Program Policy Analysis and Government Accountability (OPPAGA), found that diverting lower-risk offenders — those “who have never been convicted of any violent or sexual felony and who have never served any sentence of imprisonment prior to their current sentence” away from prison and into community supervision would reduce recidivism and save tens of millions of tax dollars annually.[7] That class of lower-risk offenders OPPAGA identified represents about 13 percent of the state prison population, most of whom are “repeat offenders” under FSA’s definition.

FSA’s position, however, is that repeat offenders by definition cannot be “low-level” or “low-risk” people for whom prison might not be appropriate. However, this conclusion does not — and cannot — follow from repeat offender data alone. The claim that prison is by definition appropriate for every repeat offender is no more “scientific” or “data-driven” than would be the claim that prison is never appropriate for repeat offenders. Both positions are normative, ideological, and ultimately political.

Even conceding FSA’s claims that prison is appropriate for every repeat offender, “prison” can mean anything from a year and a day to life without parole. The fact that some prison sentence is justified does not, ipso facto, mean any prison sentence is justified. Merely noting that most prisoners are repeat offenders does not provide any justification for the claim that those prisoners are serving appropriate sentences, but the FSA report assumes this conclusion without argument.

[1] 921.002, F.S.

[2] Florida Sheriffs Association, “Truth in Sentencing” at 6.

[3] Crime and Justice Institute, “An Analysis of Florida’s Criminal Punishment Code,” pp. 15–16. June 2019. Available: http://www.crj.org/assets/2019/06/An-Analysis-of-Florida-CPC-June-2019.pdf.

[4] Id. at 17–18.

[5] Office of Program Policy Analysis and Government Accountability, “Diverting Low-Risk Offenders from Florida Prisons,” Report №19–01, January 2019. http://www.oppaga.state.fl.us/MonitorDocs/Reports/pdf/1901rpt.pdf

[6] Id. at 18.

[7] Id. at 20.