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

Introduction

In 1994, President Clinton signed the “Violent Crime Control and Law Enforcement Act,” which authorized $10 billion in federal subsidies to states that required people convicted of violent offenses serve at least 85 percent of a sentence before becoming eligible for release.[1] The following year, in 1995, then Florida state Senator Charlie Crist led the successful effort to create Florida’s “85 percent rule.”[2]

The 85 percent rule[3] has been the subject of intense scrutiny since it was adopted. Critics have argued the law was overbroad, since it made Florida one of just a handful of states that apply the rule to all prisoners, including first time, nonviolent offenders. Others noted the stringent time-served requirement contributed to spikes in the number of prisoners who leave prison without post-release supervision that can reduce re-offense rates.[4] Others claimed the 85 percent rule created significant corrections costs without providing a corresponding public safety benefit.[5] Still others argued the rule created no incentives for prisoners to participate in programming that could help them after their release. Finally, research found the 85 percent rule significantly increased violent, property, and disorderly misconduct inside prisons.[6]

Despite these concerns and others, the 85 percent rule has proved remarkably durable, thanks in large part to intense (and tax-funded) lobbying by law enforcement special interest groups.[7] In 2012, for example, the Legislature passed a bill that would have allowed a small fraction of nonviolent prisoners with substance abuse problems to transition from prison to drug treatment while serving their sentences. The bill passed the House of Representatives 112–4, and passed the Senate unanimously. However, then Governor Rick Scott vetoed the bill, calling it “an unwarranted exception” to the 85 percent rule.[8] Despite the rule’s political stability, advocates across the ideological spectrum continue to pressure state policymakers to reform it, most notably by allowing at least some prisoners to earn release eligibility after serving 65 percent of a sentence after completing programming aimed at reducing re-offense rates upon release.

A 2020 report by the Florida Sheriffs Association (FSA) aims to defend the 85 percent rule against growing calls for reform.[9] The FSA report adds to an important discussion on sentencing and incarceration issues in Florida. However, the report relies on incomplete data, cherry-picked research, unjustified inferences, and a number of reasoning errors to reach several incorrect conclusions. In the end, the FSA report fails to provide a compelling defense of Florida’s 85 percent rule, or a compelling reason that rule should not be changed.

Truth in Sentencing and Mandatory Minimum Sentencing in Florida

Before turning to its defense of the 85 percent rule, the FSA report first attempts to show an inconsistency between, on one hand, support for expanding judicial discretion by eliminating mandatory minimum sentencing laws, and, on the other hand, support for allowing prisoners the opportunity to earn release at 65 percent time served. The report suggests opposition to statutory sentencing mandates and simultaneous support for relaxing the 85 percent rule is an effort to “have it both ways by arguing that a judge’s well-informed sentence is paramount to fairness and correct sentencing, while at the same time advocating to gut the judge’s sentence.”[10]

The FSA’s claim of a tension between support for mandatory minimum reform and support for expanded rehabilitation credits is false, for several reasons.

First, the report’s description that opponents of mandatory minimums believe judge-imposed sentences are “paramount to fairness and correct sentencing” is incorrect. It is true — as FSA concedes — that relative to other procedural actors, judges are in the best position to impose appropriate punishments. However, it does not follow that judges cannot or do not make mistakes.

Criminal sentencing is notoriously difficult.[11] Judges must balance various and often competing ends, including incapacitation, deterrence, rehabilitation, punishment, justice, mercy, and public safety. And while judges are armed with better information than any other procedural actor, the information they rely on to make decisions is necessarily incomplete. As a result, mistakes are inevitable. Under any conceivable sentencing scheme, some sentences will shock the conscience for leniency, others for severity. In an inherently imperfect process like criminal sentencing, these outcomes are unavoidable.[12] As one judge put it, despite the judge’s relative superior position, sentencing is still “more art than science.”[13] Judicial discretion is the best of all possible options, but it is not perfect.

Second, even if a sentence was ideal at the time it was imposed, it does not follow that the same sentence is necessarily ideal — or even appropriate — forever. The reason is that time exists, and humans experience time linearly. Events that are grasped by the senses and processed in minds occur sequentially at particular moments along a timeline perceived to be unilinear. As events occur, previously unavailable information emerges that affects how we judge the wisdom of prior decisions.[14]

For example, imagine a doctor makes a diagnosis that a patient has cancer, and recommends treating the cancer with a one-year course of chemotherapy. If eight months into the treatment the patient’s cancer has responded more favorably than the doctor anticipated, it might make sense to stop the treatment early. It would be perfectly consistent to believe that at the time of the diagnosis the doctor was in the best position to recommend a particular treatment, and to believe that eight months later the patient doesn’t need four more months of chemotherapy.

The reason is that eight months into treatment, the doctor has access to relevant information about the patient that — by definition — did not exist at the time of the diagnosis. In particular, the doctor would know how the patient responded to the treatment, and can use that information to improve her opinion about the wisdom of continuing the treatment. That does not make the original decision “wrong,” and it surely does not mean the doctor wasn’t in the best position to make the original treatment decision, or that she shouldn’t have had the discretion to recommend a particular treatment. Insisting a patient continue to endure unnecessary cancer treatment because that treatment made sense at the time it was ordered would not only be wasteful, but also dangerous to the patient’s health.

The same is true for criminal sentences, which, in part, are meant to be rehabilitative. There is simply no inconsistency between believing a judge is in the best position to impose appropriate sentences at a particular point in time, and believing prisoners should be allowed to earn time off those sentences based on changed behavior and genuine rehabilitation. Insisting a reformed prisoner continue to endure unnecessary incarceration because a sentence made sense at the time it was ordered would not only be wasteful, but also counterproductive to public safety by preventing the incarceration of a comparatively more dangerous offender.

Finally, as this paper will discuss, thanks to Florida’s more than 100 mandatory minimum sentencing laws, many sentences in Florida are not imposed by judges after considering the relevant circumstances of the case, but are in fact imposed over judges’ explicit objections. If anything, FSA — Florida’s most vocal supporter of mandatory minimum laws, which deprive judges of exactly the independence and judgment the FSA report suggests leads to ideal sentences — is trying to “have it both ways” by supporting judicial discretion for the purpose of protecting the 85 percent rule, but opposing it for the purpose of protecting mandatory minimum sentencing laws.

Truth in Sentencing and “Judge-Imposed Sentences”

FSA’s first argument in defense of the 85 percent rule is that reducing a time served requirement to anything less than 85 percent undermines a sentencing judge’s power to impose an appropriate sentence. For example, the FSA report argues:

If a judge imposes a sentence, it should be served (with certain gain time considerations) and not gutted to put a convicted felon back out on the street early.[15]

Former FSA president and current Pinellas County Sheriff Bob Gualtieri echoed this argument on behalf of the FSA:

If a judge sentences someone to ten years in prison after hearing all of the relevant facts of the case, knowing all there is to know about that person, then that person should not get out in six years. Ten years does not mean six.[16]

FSA’s reasoning is flawed and its conclusions are incorrect. Reducing the determinate minimum time served requirement from 85 percent to 65 percent does not undermine judges’ ability to impose appropriate punishments. Additionally, by recognizing that “certain gain-time considerations” are appropriate and consistent with “truth in sentencing,” FSA concedes the point they are trying to disprove.

FSA is correct that a judge imposes a sentence based in part on “knowing all there is to know about that person” — at the time of sentencing. Allowing people to earn additional time off a sentence recognizes the value of having a judge impose a sentence, but also recognizes that people grow, mature, and rehabilitate while serving a sentence. That is, it recognizes that there is more to know about a person after that person has served time in prison than what was available at sentencing.

For example, a person might earn additional time off a sentence by completing educational and vocational programs, drug treatment, and other programs designed to promote prosocial behavioral modifications, all of which would be aimed at preparing prisoners for effective reentry and approved by the Department of Corrections. Under the status quo, prisoners have no incentive to commit to rehabilitation. Under a reformed system, they are rewarded for changing their behavior in a positive direction.

FSA’s position assumes post-sentencing, pre-release rehabilitation is impossible. That assumption is incorrect. Tens of thousands of people are released from prison every year and never return. Some serve short sentences and are deterred by the experience from reoffending. Others “age out” of criminal behavior. Still others learn the life skills that help them lead stable lives upon reentry. For whatever reason, these people leave behind their life of crime.

One such person is Matthew Charles, who was released from federal prison in January 2019 after serving two terms totaling more than twenty-one years. Georgetown Law Professor Shon Hopwood describes Matthew’s case:

Matthew was in prison because, at the age of thirty, he was sentenced to thirty-five years in federal court for distributing 216 grams of crack cocaine and illegally possessing a firearm. Matthew’s sentence resulted, not from the quantity of crack cocaine he distributed, but from his ugly criminal history that included: “kidnapping a woman on two consecutive days ‘for the purpose of terrorizing her’; burglarizing a home; and fleeing from a police interrogation, shooting a man in the head, and attempting to run off in the victim’s car.” When Matthew was sentenced, the sentencing judge explained that Matthew had “a particularly violent history” and had “demonstrated by his actions that he’s a danger to society and should simply be off the streets.”[17]

Few would argue Matthew’s sentence was unjustified given “all there was to know” about him at the time of his sentencing. However, as Hopwood notes, there would be more to Matthew Charles than the judge knew — or could have known — at the time his sentence was imposed.

But what the judge did not foresee was that Matthew would change. In the more than twenty-one years Matthew spent in prison, he never received a single disciplinary infraction. Matthew studied the Bible during religious services and the law while working as a law clerk in the prison law library. He received an education through college courses. And his focus wasn’t just on himself: he drafted legal filings for illiterate prisoners and explained to them the court orders issued in their cases. When he wasn’t helping illiterate prisoners understand the law, he was teaching GED classes. Matthew was determined to change his character, and he embarked on what the judge who resentenced him many years later called “exemplary rehabilitation.”[18]

Charles’ transformation was so remarkable that not only was he the first person released under the retroactive sentencing reforms in the federal First Step Act, he was also President Trump’s guest at the 2019 State of the Union. Since his release, Matthew has worked as a full-time criminal justice reform advocate, traveling the country meeting with legislators and Governors. By the FSA’s logic, Matthew Charles should still be in prison.

FSA’s claim that a 65 percent requirement would undermine judicial sentencing power is itself internally inconsistent. On one hand, FSA argues that a 65 percent standard would “gut” judges’ ability to keep an offender in prison for whatever amount of time the judge feels is appropriate. On the other hand, FSA argues that under a 65 percent requirement judges would still determine the total time served. Speaking on behalf of FSA, one sheriff argued that under a 65 percent standard, “. . . judges would go back to sentencing defendants to some artificially higher number of years to ensure that these felons actually serve the time that the court determined appropriate.”[19]

It is impossible for both of these claims to be true simultaneously. If judges control time served under either an 85 percent standard or a 65 percent standard, then FSA’s claim that a 65 percent standard necessarily “guts” judge-imposed sentences is false. If FSA’s claim that a 65 percent determinate standard “guts” judge-imposes sentences, then the claim that judges will retain the power over time served by inflating sentence lengths “artificially” is false.

Current law allows most incarcerated people to earn “gain time” that makes them eligible for release after serving 85 percent of their sentence. By supporting the status quo, and recognizing that “certain gain time considerations” justify reducing time served to 85 percent of an imposed sentence, FSA concedes the principle that serving less than 100 percent of a judge-imposed sentence is consistent with that sentence. Unfortunately, the FSA report does not explain why release at 85 percent is consistent with “truth in sentencing,” but release at a different fixed percentage is not.

For his part, Sheriff Gualtieri is correct that ten years does not mean six, but neither does it mean 8.5. Again, the FSA report fails to explain why 85 percent is the minimum threshold that distinguishes “truth in sentencing” from its opposite. It is worth asking whether FSA would consider, e.g., an 84.99 percent time served requirement inconsistent with “truth in sentencing.” What about 80 percent? 75 percent? After all, determinate sentencing does not inherently require an 85 percent time-served requirement. The current standard is the standard only because it is the number President Clinton chose. The FSA report offers no analysis or evidence that suggests 85 percent is the ideal determinate standard, and offers no analysis or evidence that some other determinate standard would undermine public safety goals.

In fact, alternatives to the current 85 percent rule could almost certainly achieve the same public safety goals FSA wrongly suggests are unique to the status quo. For example, imagine a judge imposes the following sentence:

Ten years. However, if the defendant earns a high school diploma or its equivalent, nine years. If the defendant also completes two years of drug rehabilitation, eight years. If the defendant also completes anger management courses, and at least 50 percent of the required training to earn an occupational license, 6.5 years.

Is this sentence a “façade,” as FSA suggested it would be?[20] Is there no “truth” to it? Would giving a judge the option to impose such a sentence paradoxically “gut” the judge’s decision-making authority in a way that prohibiting the judge from imposing it wouldn’t? Would this sentence “threaten a victim’s right to have an offender appropriately punished”?[21] (What if there is no victim?)

Under current law, judges are powerless to impose this kind of conditional sentencing. Under a reformed law, however, proactive sentencing — which both protects judges’ power over sentencing and promotes rehabilitation — would be possible, and would create powerful incentives for people in prison to follow the rules and participate in positive behavioral programming that can lead to successful reentry.

Truth in Sentencing and the Florida Crime Rate

The 85 Percent Rule and Florida’s Crime Rate

The crux of the FSA report’s argument is that crime has fallen substantially in Florida over the past several decades, and that the 85 percent rule is an important reason why. Crime is in fact at a near 50-year low in Florida, but the FSA report fails to establish a causal relationship between the 85 percent rule and Florida’s crime drop.

As an initial matter, suggesting one thing caused another thing because the second thing happened after the first is a fallacy known as post hoc reasoning. The FSA report commits this error by implying a causal connection between the 85 percent rule and Florida’s falling crime rate, but providing evidence only for a temporal relationship between the two.[22]

Crime is complex, and the causes of its rise and fall are notoriously difficult to analyze. Crediting any particular policy with a substantial impact on crime one way or another is usually unwarranted. In fact, all of criminal justice policy is just one of 13 variables the FBI includes on its list of factors that are known to affect the volume and type of crime, a list that is surely non-exhaustive.[23]

One review of the evidence found that in Florida, “Most likely, there is no single solution that, when effectively applied, resulted in this powerful long-term [crime] decline.”[24] The same analysis found the claim that Florida’s falling crime rates are a result of increased incarceration “is not clearly supported by the available statistics.”[25]

Second, as the FSA report notes, Florida’s crime drop followed similar national trends. Over the three decades since Florida’s crime rate peaked, crime was also cut in half nationally. Just about every state in the country saw a dramatic drop in crime like Florida did. This fact should create some skepticism toward claims that Florida’s crime drop is the result of sentencing policies unique to Florida. In fact, claims that Florida’s crime drop was a result of particular policy choices are likely false. As one study found, states that maintained high incarceration rates in the 1980s and 1990s had “little or no more success in suppressing crime . . . than states that kept imprisonment rates lower.”[26]

Many states that never adopted Florida’s stringent 85 percent rule experienced similar drops in crime. For example, Texas has parole, and its crime rate has been cut in half since 1995, while the crime rate in New York — another parole state — has fallen 60 percent. As the chart below shows, Alaska, Colorado, Maryland, Massachusetts, Michigan, Missouri, Nebraska, Nevada, New Hampshire, North Dakota, Pennsylvania, Rhode Island, South Dakota, Tennessee, Utah, Vermont, West Virginia, and Wyoming all saw substantial crime drops over the same period as Florida, yet none follow Florida’s 85 percent rule.

Some of these states — Alaska, North Dakota, and Vermont, for example — had modest crime drops relative to Florida’s. Others, like Texas and Michigan, saw crime drop at about the same rate as Florida’s. Still others, such as New York and Massachusetts, had crime drops even larger than Florida’s. The claim that Florida’s experience is the result of Florida’s unique policy choices — in particular, the 85 percent rule — is difficult to square with the available data.

Third, the FSA report fails to note that crime in Florida started falling before Florida adopted the 85 percent rule in 1995. In fact, Florida’s crime rate peaked in 1988, and the state’s violent crime rate peaked in 1990. By the time Florida adopted the 85 percent rule, crime had already fallen nearly 14 percent from its peak. The FSA report does not explain this significant drop in Florida’s crime rate prior to 1995.

Each of these reasons — the report’s post hoc reasoning, the fact that crime fell all over the country, including bigger drops in states that didn’t use the 85 percent rule, and the fact that crime in Florida started falling before it adopted the 85 percent rule — independently calls into question FSA’s conclusion of a causal connection between the crime drop and Florida’s 85 percent rule. Taken together, they show clearly that FSA’s claim linking the 85 percent rule to Florida’s crime drop remains proven.

Florida’s “Incarceration Model” and the Crime Rate

Having failed to establish a causal connection between the 85 percent rule and Florida’s crime drop, the FSA report shifts its central claim, and argues that the crime drop is actually the result of both the 85 percent rule and what the report refers to as Florida’s “incarceration model.”

Unfortunately, the FSA report does not calculate how much of the crime drop can be attributed to the 85 percent rule, and how much to this incarceration model. The report does not attempt to find the marginal effect of either, nor is there any attempt to untangle the effect of the 85 percent rule from, e.g., the collective effects of Criminal Punishment Code, local sentencing practices, or mandatory minimum sentencing. The report does not entertain alternative hypotheses, including whether a larger police presence, more effective police practices, an increase in concealed weapons licenses, Florida’s economic success, better technology, or any other factor might have contributed to the crime drop. In fact, the report does not even define what “incarceration model” means.

A charitable reading might assume “incarceration model” refers to the substantial growth in Florida’s incarceration rate and prison population over the past several decades. In fact, evidence does suggest that, “an increase in [Florida’s] prison population had some effect” on crime.[27] However, some of the same research on which FSA relies for its report also found that the increase in Florida’s prison population was not the result of the 85 percent rule, but rather an increase in felony convictions that tracked Florida’s population growth.[28] This finding is consistent with the large body of research in support of the idea that the certainty of punishment is more important for crime deterrence than the severity of punishment.[29]

Much of the analysis in the FSA report linking Florida’s “incarceration model” to reduced crime relies on the work of economist Steven Levitt, whom the report calls “the most prominent scholar in this area of study.”[30] The report cites several of Levitt’s papers that show a connection between incarceration and lower crime, including a 1996 paper that concluded, “Increased prison populations appear to substantially reduce crime.”[31]

However, by 2012, Levitt recognized that U.S. incarceration rates had already reached negative returns. For example, in an interview with the New York Times, Levitt said:

[T]he millionth prisoner we lock up is a lot less dangerous to society than the first guy we lock up. In the mid-1990s I concluded that the social benefits approximately equaled the costs of incarceration. Today, my guess is that the costs outweigh the benefits at the margins. I think we should be shrinking the prison population by at least one-third.[32]

Applying Levitt’s “one-third” suggestion to Florida would mean reducing our prison population by around 31,000 people, or roughly three times the number of nonviolent offenders who would be eligible to earn release at 65 percent time served under some proposed reforms.

That incarceration rates are subject to diminishing marginal utility, and can reach a level above which incarceration is itself criminogenic, is not a controversial claim.[33] In fact, even studies that once found a negative relationship between Florida’s prison population and its crime rate also cautioned that the finding, “does not necessarily mean the State of Florida should continue expanding the prison population,” in part because of the staggeringly high cost of incarceration relative to alternatives, but also because — as one study noted nearly a decade ago — “crime rates have been very low for some time now, and it may be that other factors that have helped sustain the crime drop may have taken over.”[34]

Even the FSA report provides evidence that Florida’s “incarceration model” might have outlived its utility when it notes that Florida’s incarceration rate and prison population have both dropped while crime has continued to decline, another state trend that tracks national trends.[35]

Determinate Sentencing and Recidivism

The FSA report cites two studies for its claim that Florida’s 85 percent rule has reduced recidivism. The first concludes that released prisoners sentenced after the 85 percent law had lower recidivism rates than released prisoners sentenced prior to the 85 percent law, controlling for offense category, demographics, and prior recidivism records.[36]

However, while FSA’s report correctly relays the conclusions from that study, the report does not make clear why that study should be considered at odds with efforts to reform the 85 percent law. FSA’s position seems to be that because the 85 percent law reduced recidivism relative to the 1995 status quo, then it is impossible to improve upon it today. That conclusion, of course, does not follow, nor is it supported by the cited study.

In fact, the study cited in the FSA report actually notes that its conclusions actually provide “a basis for suggesting a rethinking of the universal application of the 85 percent law to all offenders,”[37] and noted that a proper interpretation of the study’s conclusions would “allow policymakers to see for whom the law is most effective and possibly reduce the percentage of time served for certain individuals,” which would in turn, “potentially reduce the growing impact on the prison system while maintaining public safety.”[38] These are exactly the changes proponents of 85 percent reform support, and exactly the reforms FSA opposes.

FSA claims its report “shows how reoffending is down upon release when inmates serve more time.”[39] However, the FSA report ignores considerable research at odds with that claim. For example, a 2012 analysis by the Pew Center on the States found that a significant portion of Florida’s prison population could have been safely released after serving between three months and two years less time.[40] The same study found that reducing the sentences of prisoners under its model would have reduced the state prison population by 2,640 people at a savings of $54 million.[41]

A 2016 report prepared for the Florida Legislature found that Florida’s average length of stay increased roughly ten months between FY 2007–08 and FY 2015–16,[42] and found that the increased length of stay added “approximately 20,000 inmates onto the FDC population.”[43] The report also found that Florida’s average length of stay was eight months longer than the national average, but that this “longer length of stay does not reduce recidivism.”[44] The same report recommended that, “providing inmates some gain time incentive to participate in programs would help reduce the inmate population, alleviate some of the staffing issues, reduce costs, and lower recidivism rates.”[45]

A 2018 report, also commissioned by the Florida Legislature, made similar findings:

Research over the past 20 years is now providing scientific evidence on recidivism reduction, the effectiveness of incarceration and the outcomes of people placed in the community under supervision compared to those sent to prison. This research was not available during the massive prison expansion of the 1980s and 1990s. These studies demonstrate that longer time spent in prison is not associated with lower recidivism and long sentences may be adding significant costs to the taxpayer with very little or no improvement to public safety.[46]

FSA’s claims about a direct negative relationship between time served and recidivism are not even supported by the research cited in FSA’s report. For example, one study cited in the FSA report notes that, “the determinacy of an inmate’s sentence to prison, regardless of the length of time of incarceration, results in less recidivism.” [47]

That study makes clear that the link between determinate sentencing and reduced recidivism is independent of the actual time served in prison. Tellingly, however, that conclusion is nowhere to be found in FSA’s report. Instead, FSA misrepresents the conclusions of the research it cites, incorrectly suggesting it supports FSA’s claim that an 85 percent time served requirement was a necessary element of improved recidivism rates.

In fact, the research FSA cites goes out of its way to show its conclusions reflect the importance of sentence determinacy itself, not an 85 percent time served requirement. One study cited in the FSA report makes that point at least 11 times. The study’s authors offer several hypotheses that could explain why determinate sentencing yields better recidivism outcomes than alternatives, and all but one have nothing to do with the length of time served.

For example, one hypothesis is that under determinate sentencing, “an inmate’s prison release date is known by correctional officials and the inmate within a very small range of error,” which allows correctional officials and prisoners to “implement strategies that will result in better post-release success.”[48] Alternatively, the authors postulate some of the improvement in recidivism could result from the fact that under earlier release programs, “a majority of inmates had a significant portion of their sentence reduced regardless of their commitment to bettering themselves through prison programming.”[49]

A 65 percent time served requirement is no less determinate than an 85 percent time served requirement. It follows that the research on which FSA relied in its report actually suggests the recidivism reductions under the 85 percent rule would be just as likely under a determinate 65 percent requirement. However, the FSA report makes no mention of these conclusions.

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,[50] lower-level offenses don’t yield prison sentences for first-time offenders.[51] 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.[52] 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.[53]

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,[54] 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 simply assumes prison is the least coercive sanction appropriate for every “repeat offender.” However, this is not necessarily true. For example, a person with several 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.[55] 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 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.

Prison Population Data and Sentence Appropriateness

FSA’s conclusion that most people in Florida’s state prisons deserve whatever sentence they are serving because they are either violent offenders or repeat offenders is a normative claim that relies in part on several unjustified assumptions. For example, FSA’s position assumes Florida’s criminal justice system reflects an ideal in which prosecutors charge unambiguous violations of narrowly tailored criminal laws, defendants go to trial where they are convicted by a jury of their peers, and disinterested judges impose proportionate sentences after taking into consideration the unique circumstances of the offense and the offender with an eye toward ensuring justice is done in every case. Of course, Florida’s criminal justice system does not approach this ideal, which makes the FSA report’s appeals to it misleading, and the conclusions it draws from it unreliable.

Sentencing in Florida, for example, is far from ideal. Per OPPAGA, approximately 96 percent of felony sentences are the result of offenders’ pleas.[57] In the plea process, “the state attorney has discretion over what sentencing offers are made to defendants and what the terms of those offers will be.”[58] And while, “The ultimate responsibility for sentence determination rests with the trial judge . . . by rule, a judge’s discretion is essentially limited to either accepting or rejecting a negotiated plea agreement. In practice, it is unusual for a judge to reject a negotiated plea.”[59] Moreover, for cases not adjudicated by plea, the Criminal Punishment Code creates a “lowest permissible sentence” that further restricts judicial discretion.[60] Finally, the Florida criminal code has more than 100 mandatory minimum terms for a range of offenses from which judges are nearly completely barred from departing.

Thousands of people every year are prosecuted in Florida for offenses that carry mandatory minimums, and in these cases the prosecutor, not the judge, wields nearly unlimited power over the imposed sentence. The radical imbalance of power mandatory sentencing laws create in plea negotiations, and the undue burdens they create on the exercise of a defendant’s constitutional right to a fair trial,[61] create a situation in which judges not only do not make well-informed sentencing decisions, but are prohibited by law from doing so.

Florida’s sentencing system is so far removed from the idealized version assumed in FSA’s report that the report’s conclusion — the composition of the prison population justifies an inference that any given sentence is appropriate — is simply not reliable. Consider three examples where the law prohibits judges from imposing appropriate sentences.

Drug Trafficking

FSA’s position is that anyone convicted of drug trafficking deserves to be incarcerated for whatever mandatory prison term is imposed, and no exception to the applicable minimum sentence is ever warranted, no matter what. One assumption underlying that position is that Florida’s drug trafficking law works as it was intended. This assumption is incorrect.

The authors of Florida’s current drug trafficking statute intended to deter large-scale drug operations by threatening harsh sentences for “major players in the drug trade.”[62] Unfortunately, Florida’s drug trafficking statute covers a range of behavior that does not necessarily correlate with high-level culpability in the drug trade.[63] For example, simple possession of controlled substances is covered by the statute, and the state can obtain a conviction for drug trafficking without proving any connection to the sale, delivery, or manufacture of controlled substances. Under Florida law, even Medal of Freedom recipient Rush Limbaugh is a “drug trafficker.”

As a result, sentences intended for drug kingpins are routinely applied to people with substance abuse disorders at low risk for recidivism, couriers who transport drugs, intermediaries who set up drug transactions for others, and low-level street dealers.[64] Even FSA’s report found 1 out of 7 people currently serving drug trafficking sentences in the Florida Department of Corrections are, as the report describes them, “first-time offenders with no previous convictions.”[65]

The problem of Florida’s overly broad trafficking statute is compounded by the fact that trafficking convictions carry mandatory minimum sentences. If judges had discretion to impose appropriate sentences in these cases, then the worst unintended consequences of an overly broad statute could be mitigated. For example, a person with a substance abuse disorder caught in possession of a trafficking quantity of painkillers might still be sentenced to drug treatment, jail, or even a modest prison sentence. However, since judges are deprived of all discretion over sentencing in drug trafficking cases, it is impossible to infer that the sentence imposed is just or appropriate. It is just as likely that the imposed sentence shocks the conscience, as was the case for William Forrester, Cynthia Powell, and Jomari DeLeon, to name only a few among thousands of similar cases over the past several decades.[66]

10–20-Life

A person who commits any of a list of felonies while in possession of a firearm may be sentenced under Florida’s “10–20-Life” gun sentencing statute.[67] The author of the 10–20-Life law in the Legislature, Representative Victor Crist, has explained the intent behind the law was to “get at the thug who was robbing a liquor store who had a gun in his possession or pulled out the gun and threatened someone or shot someone during the commission of the crime.”[68]

Despite the stated intent, some legislators and critics warned of the law’s potential unintended consequences.[69] Governor Jeb Bush argued the new law would give prosecutors a “club” they could use to force defendants to accept plea bargains instead of risking trials.[70] He also acknowledged the mandatory minimums would generate injustices in individual cases, but promised to correct them by using his commutation authority.[71]

Staff analysis of 10–20-Life predicted the new law would increase the prison population by 1,008 at a cumulative cost of $46.4 million over five years, the former number held in check on the assumption that the bill would “have a deterrent effect which would tend to decrease admissions.”[72]

That prediction proved optimistic at best. Through June 2004, prison admissions under 10–20-Life totaled nearly 4,000, or 226 percent higher than predicted.[73] By 2016, more than one in ten state prisoners — nearly 11,000 total — had been sentenced under 10–20-Life.[74] Meanwhile, there is no evidence 10–20-Life has done anything to reduce violent crime.[75]

Like the drug trafficking statute — also sponsored by Victor Crist — 10–20-Life was overbroad, and inevitably led to exactly the kinds of unintended consequences predicted by the law’s skeptics. For example, Ronald Thompson was sentenced to 20 years for firing a warning shot to scare off a gang of teenagers menacing an elderly woman. Marissa Alexander was sentenced to 20 years for firing a warning shot to scare off her abusive ex-husband. Michael Giles was sentenced to 25 years for aggravated battery, a case in which he fired two shots in self-defense after being punched to the ground in a brawl by a man who intended to knock Giles out. Thompson and Alexander both received new trials, accepted plea deals, and have been released from prison. Giles has already served more than ten years, and isn’t scheduled for release until 2035.

Per the FSA report, by definition every violent offender deserves prison, and every prisoner deserves whatever sentence was imposed because that sentence reflects the considered wisdom of the sentencing judge. For 10–20-Life offenses, that is not necessarily the case. It is true every person convicted under 10–20-Life is by definition a “violent offender,” but it does not follow that every person sentenced under 10–20-Life deserved a prison sentence, much less the sentence that was imposed. Thompson, Alexander, and Giles, for example, were all “violent offenders” according to the language of the statute, but none of the judges in their respective cases felt the sentence the law mandated was appropriate. However, 10–20-Life prohibited the judge from imposing an appropriate sentence.

Prison Releasee Reoffender

A person who is sentenced to more than a year in prison, and who, within three years of release from a prison or jail, commits any of a list of offenses, is subject to sentencing under Florida’s “prison releasee reoffender” (PRR) law.[76] Under PRR, the statutory maximum sentence is the mandatory minimum sentence. As of June 2019, 7,687 people in Florida prisons — about eight percent of the total prison population — were sentenced under PRR. That number includes 1,750 people serving life without parole sentences,[77] a number slightly higher than the entire prison population of Vermont, and just shy of the total prison population of North Dakota.[78]

People serving PRR sentences are by definition “repeat offenders” and “violent offenders.” Prison is almost certainly justified in many, if not most, of these cases, but because the PRR sentence is mandatory, judges have no discretion to impose individualized sentences. If judges did have sentencing discretion, many of the people currently serving life without parole PRR sentences would have received the same sentence. However, in at least some cases, judges were forced to impose PRR life sentences over their objection, and the results were obviously disproportionate and unjust sentences.

For example, in Florida, robbery while carrying a knife is punishable by up to life imprisonment. Under PRR, the only sentence a judge can legally impose on a PRR defendant convicted of robbery with a deadly weapon is life without parole. A prison sentence might be justified for that offense. But the fact that an armed robbery conviction might justify some prison sentence does not, by itself, justify a life without parole sentence for the same conviction. Of course, it is conceivable that a life without parole sentence would be justified under some set of facts leading to a conviction for robbery with a deadly weapon. However, that life without parole might be justified on the facts of some PRR robbery with a deadly weapon cases does not mean it is necessarily an appropriate sentence for all PRR robbery with a deadly weapon cases. Here, again, mandatory minimum sentences deprive sentencing courts of the power to impose appropriate sentences. Here, again, this has led to egregious injustices.[79]

In fact, in recognition of systematic disproportionate and unjust sentencing under PRR, the Criminal Punishment Code Task Force recently recommended replacing PRR’s life without parole provision with a mandatory minimum 30-year sentence in cases where no firearm was discharged and no death or great bodily harm occurred because of the offense.[80]

It is indisputable that at least some people sentenced to life without parole under PRR would have been sentenced to a less severe sanction if the sentencing court had the discretion to impose a sentence it felt appropriate. That courts were denied this discretion is good reason for skepticism that PRR sentences represent a “well-informed sanction for criminal activity imposed by the court,” as suggested by the FSA report.

Florida’s drug trafficking sentencing laws, 10–20-Life, and the PRR statute are not the only such laws that deprive sentencing courts of the power to make the “sound, well-informed decisions” FSA believes Florida judges make when afforded such discretion. Drug-free zone laws and so-called “drug-induced homicide” laws, other mandatory sentencing enhancements, and even the Criminal Punishment Code’s “lowest permissible sentence” requirement all distort the sentencing process. As a result, even accepting the FSA report’s claims about the composition of the Florida prison population does not justify an inference that any given sentence being served is appropriate.

The 85 Percent Rule, Efficiency, and Comparative-Benefit Analysis

The Comparative-Benefit Imperative

As economist Thomas Sowell once put it, in attempting to address social problems, “There are no solutions, only tradeoffs.”[81] Adopting some policy means not adopting competing alternatives. When analyzing the effectiveness of a given policy, then, it is never sufficient to identify the benefits of that policy. Rather, it is always necessary to ask (as Sowell urged policymakers to ask) “Compared to what?” That is, it is necessary to compare the realized benefits to those that could be achieved with alternatives necessarily precluded by the status quo.

It is easy to see the value of comparative-benefit analysis in non-policy areas. For example, imagine a person makes an investment. After several years, the investor realizes the average annual return has been one percent, and anticipates similar results going forward. Should the investor stay the course, or try something else? On one hand, a one percent return is better than a loss, or no return, and significantly better than the return from, say, a savings account. Changing strategies risks losing the gains earned so far. On the other hand, other investments have yielded higher returns, and failing to switch leaves money on the table. In deciding whether to make a change, the relevant question is not whether an investment has generated a positive return, or whether that return will remain higher than some conceivable alternatives. The relevant question is whether any available alternative will likely yield a better return.

Applying comparative-benefit analysis to the 85 percent rule shows why the FSA’s defense of the status quo falls short. For example, the FSA report makes much of the claim that the current 85 percent rule has resulted in reduced recidivism rates relative to prior indeterminate sentencing policies. In many ways, the report’s position rests entirely on this claim. However, just as a one percent return beats a savings account, but is insufficient to justify continued investment, the 85 percent rule’s improvement in recidivism reduction over prior indeterminate sentencing is insufficient to justify the status quo. A successful defense of the current 85 percent rule against proposals to reform it must include, at a minimum, evidence the current rule is more efficient — i.e., more effective per dollar spent — than the proposed alternatives.

The FSA report does not attempt to make the case that the current 85 percent rule can survive this type of comparative-benefit analysis. As a result, even if one accepts all of the FSA report’s conclusions about the benefits of the 85 percent rule, the report still fails to prove the rule should remain unchanged.

The Current 85 Percent Rule is Likely Inefficient

Per the state’s Criminal Justice Estimating Conference, one proposed reform of the current 85 percent rule Florida would save more than $860 million over five years by reducing the determinate time-served requirement from 85 percent to 65 percent for prisoners serving sentences for nonviolent offenses.[82] In deciding whether to keep the status quo or adopt that reform, the relevant question is not whether the $860 million spent enforcing the current 85 percent rule for those offenders achieves some benefit. The relevant question is whether spending that money in that way is the most efficient use of those resources, or whether alternative uses of that money could achieve the same or better results at a lower cost. If so, maintaining the status quo is wasteful, and there would be no reason to keep it.

There is good reason to believe the current 85 percent rule is likely wasteful and comparatively inefficient, and that allowing nonviolent prisoners to earn release at 65 percent time served would maintain or improve public safety outcomes at a lower cost than the status quo. First, as noted above, the research on which the FSA report relies for this claim makes clear that determinate sentencing itself, and not determinate sentencing at 85 percent time served, is responsible for the relevant recidivism reduction. Since a 65 percent time served requirement is no less determinate than an 85 percent time served requirement, there is no reason to believe — and the FSA report offers no reason to believe — a determinate 65 percent time served requirement would reverse the gains in recidivism reduction.

Second, the recidivism reduction attributed to the 85 percent rule in the FSA report was a reduction relative to Florida’s prior indeterminate sentencing structure. As such, those findings cannot — and the report does not — justify concluding the 85 percent rule is more effective or more efficient than proposed alternatives to the status quo. Again, nothing in the FSA report even attempts to rebut the claim that a 65 percent time served requirement would protect public safety at lower cost to taxpayers.

Third, the research on which the report relies for its claim that “truth in sentencing” laws reduce crime generally analyzed truth in sentencing for offenders convicted of violent offenses, not every offense. Florida’s 85 percent rule, by contrast, covers all offenders. As a result, the FSA report rests much of its defense of Florida’s current 85 percent rule on research relevant only to much narrower versions of the rule, while ignoring relevant research that suggests narrowing the rule might yield even better public safety outcomes at lower cost to taxpayers.[83]

Lastly, the FSA report assumes incorrectly that recidivism reduction is the only relevant metric by which to judge how a given policy affects public safety. Minimizing reoffending rates is obviously a laudable public policy goal, but it is possible that spending resources to achieve a marginal reduction in recidivism could “crowd out” spending those same resources on strategies that would have an even bigger impact on public safety. For example, research has found that investments in police can yield larger public safety benefits than incarceration per dollar spent.[84]

Of course, crime can be reduced by investments in non-traditional public safety strategies, as well. For example, randomized controlled trials in Chicago found cognitive behavioral therapy aimed at changing decision-making of disadvantaged youth total led to a 28–35 percent reduction in total arrests during the intervention period, and a 45–50 percent reduction in violent-crime.[85] The same study noted CBT improved school engagement and increased graduation rates by 12–19 percent, and found “an implied benefit-cost ratios for these interventions from 5-to-1 up to 30-to-1 or more.”[86] Investments in community-led “focused deterrence” programs, including problem-oriented policing and public health interventions, have also been shown to reduce crime, particularly the kinds of urban violence that have spiked in some cities in recent years.[87]

Given finite resources and strained state budgets, policymakers must ensure every dollar the state spends achieves its intended goals more efficiently than plausible alternatives. The FSA report fails to prove the current 85 percent rule meets this basic criterion of effective public policy. Even under the assumption that maximizing public safety is the only relevant consideration, the FSA report offers no reason to believe the current 85 percent rule is the most efficient means of achieving that goal.

Conclusion

In publishing its “Truth in Sentencing” report, FSA’s ostensible goal was to offer a compelling defense of Florida’s 85 percent rule, and to refute arguments in favor changing it. By any reasonable metric, FSA failed to meet that goal. FSA’s report is little more than a collection of anecdotes, fallacies, logical errors, unjustified inferences, mistaken interpretations, and half-truths. As such, the report is more misleading than enlightening, and provides no compelling justification for maintaining Florida’s 85 percent rule.

The case for changing the 85 percent rule to allow at least some people incarcerated in state prisons to earn release at 65 percent of their sentence served is far more compelling. Nearly nine out of ten prisoners will return to society at one point or another, irrespective of their underlying offense. To maximize public safety and break the cycle of crime and incarceration, Florida’s prison system must transition from an anachronistic, reactive system that merely warehouses people, and into a proactive system appropriate for the 21st century, which corrects behavior and actually prepares people for life after prison and a second chance at the American dream.

As state Senator Keith Perry — former Chair of the Senate Criminal Justice Committee, and current Chair of the Senate Appropriations Subcommittee for Civil and Criminal Justice — wrote, “The real world does not reward people for merely behaving in a civilized manner — it rewards us for achieving various levels of education, completing certificate courses or doing more than what is expected of us.”[88]

Incentivizing participation in recidivism reducing programming will cultivate within prisoners the work ethic and mindset that are necessary for successful reentry and rewarded in the workplace. Florida lawmakers interested in encouraging rehabilitation among incarcerated people and reducing victimization would be wise to ignore the FSA report and consider seriously the growing calls for changing Florida’s 85 percent rule.

[1] Susan Turner, et.al., “National Evaluation of the Violent Offender Incarceration/Truth-in-Sentencing Incentive Grant Program,” RAND Corporation, 2001. Available: https://www.ncjrs.gov/pdffiles1/nij/grants/191201.pdf.

[2] Curtis Krueger, “Charlie Crist’s signature accomplishment is one he never mentions,” Tampa Bay Times, September 28, 2014. https://www.miamiherald.com/news/politics-government/state-politics/article2290614.html.

[3] 944.275, F.S.

[4] The Pew Charitable Trusts, “Max Out: The Rise in Prison Inmates Released Without Supervision.” June 2014. https://www.pewtrusts.org/-/media/assets/2014/06/04/maxout_report.pdf.

[5] Crime and Justice Institute, “Data-Driven Solutions to Improve Florida’s Criminal Justice System,” February 2018. http://www.crj.org/assets/2018/01/FINAL_Data-Driven-Solutions-to-Improve-Floridas-Criminal-Justice-System.pdf.

[6] Bales, William D. and Courtenay Hilton Miller. “The impact of determinate sentencing on prisoner misconduct.” Journal of Criminal Justice 40 (2012): 394–403.

[7] See Jerry Iannelli, “Florida’s Most Powerful Pro-Police Lobbying Group is an Anti-Reform Force,” The Appeal, October 9, 2020. Available: https://theappeal.org/florida-sheriffs-desantis/.

[8] Krueger, note 2.

[9] Florida Sheriffs Research Institute, “Truth in Sentencing,” January 2020. https://www.flsheriffs.org/uploads/docs/2019-11-12_FSA_Truth_in_Sentencing_Report_DIGITAL_(5).pdf.

[10] Id. at 3.

[11] See Douglas A. Berman, “Sentencing is Dang Hard… And So…” Federal Sentencing Reporter, Vol. 32, №3, February 2020. https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3541805.

[12] Greg Newburn, “Judges and Sentencing: A Balancing Act,” Letter to the Editor, New York Times, December 26, 2016. https://www.nytimes.com/2016/12/26/opinion/judges-and-sentencing-a-balancing-act.html.

[13] Judge Noel L. Hillman, “The Use of Artificial Intelligence in Gauging the Risk of Recidivism,” The Judges’ Journal, January 1, 2019. https://www.americanbar.org/groups/judicial/publications/judges_journal/2019/winter/the-use-artificial-intelligence-gauging-risk-recidivism/#:~:text=When%20done%20correctly%2C%20the%20sentencing,experience%20and%20the%20adversarial%20process.

[14] “It is really true what philosophy tells us, that life must be understood backwards. But with this, one forgets the second proposition, that it must be lived forwards. A proposition which, the more it is subjected to careful thought, the more it ends up concluding precisely that life at any given moment cannot really ever be fully understood; exactly because there is no single moment where time stops completely . . .” Soren Kierkegaard, The Journals of Soren Kierkegaard, ed. and trans. A. Dru, p. 127, Oxford: Oxford University Press.

[15] Truth in Sentencing at 3.

[16] Florida Sheriffs Association press conference, January 28, 2020. Available: https://www.facebook.com/floridasheriffsassociation/videos/2561469117234933/.

[17] Shon Hopwood, “Second Looks and Second Chances,” Cardozo Law Review, vol. 41 Issue 1, (2019). http://cardozolawreview.com/second-looks-second-chances/.

[18] Id.

[19] FSA press conference, note 16.

[20] Id.

[21] Truth in Sentencing at 3.

[22] Id. at 9.

[23] Other variables include population density and degree of urbanization; variations in composition of the population, particularly youth concentration; stability of the population with respect to residents’ mobility, commuting patterns, and transient factors; modes of transportation and highway system; economic conditions, including median income, poverty level, and job availability; cultural factors and educational, recreational, and religious characteristics; family conditions with respect to divorce and family cohesiveness; climate; effective strength of law enforcement agencies; administrative and investigative emphases of law enforcement; citizens’ attitudes toward crime; and crime reporting practices of the citizenry. See FBI Uniform Crime Report, “Variables Affecting Crime.” https://ucr.fbi.gov/hate-crime/2011/resources/variables-affecting-crime.

[24] Donovan White and Hector H. Sandoval, “Potential Drivers of the Florida Crime Decline,” Bureau of Economic and Business Research, 2017. https://www.bebr.ufl.edu/economics/website-article/potential-drivers-florida-crime-decline.

[25] Id.

[26] James Austin, Todd Clear, and Richard Rosenfeld, “Explaining the Past and Projecting Future Crime Rates.” Harry Frank Guggenheim Foundation, September 2020. https://hfg.org/past%20and%20future%20crime%20rates.pdf.

[27] See, e.g., William D. Bales and Alex R. Piquero, “The Crime Drop in Florida: An Examination of the Trends and Possible Causes,” The PEW Charitable Trusts and the John Jay College Center on Media, Crime and Justice, 2012. https://www.flsheriffs.org/uploads/FLCrimeDropStudy_Bales4_15_12.pdf.

[28] Id.

[29] See, e.g., Robert Apel & Daniel S. Nagin, “General Deterrence: A Review of Recent Evidence,” Crime and Public Policy (James Q. Wilson & Joan Petersilia eds., 2012).

[30] Id. at 16.

[31] Levitt, S. D. (1996). The effect of prison population size on crime rates: Evidence from prison overcrowding litigation. The quarterly journal of economics, 111(2), 319–351.

[32] John Tierney, “For Lesser Crimes, Rethinking Life Behind Bars,” New York Times, December 11, 2012. Available: https://www.nytimes.com/2012/12/12/science/mandatory-prison-sentences-face-growing-skepticism.html.

[33] See, e.g., Johnson, R. and Raphael, S., “How much crime reduction does the marginal prisoner buy?” Journal of Law and Economics, vol. 55, pp. 275–310.

[34] Bales and Piquero, note 27, at 55–56.

[35] Truth in Sentencing at 6.

[36] Kerensa N. Pate, “Florida’s Truth in Sentencing Effectiveness on Recidivism Rates,” Dissertation (2010). http://diginole.lib.fsu.edu/islandora/object/fsu%3A180381.

[37] Id. at 78.

[38] Id.

[39] FSA press conference, note 16.

[40] Pew Center on the States, “Time Served: The high cost, low return of longer prison terms,” June 6, 2012, p. 36. Available: https://www.pewtrusts.org/en/research-and-analysis/reports/2012/06/06/time-served-the-high-cost-low-return-of-longer-prison-terms.

[41] Id. at 37.

[42] CGL, “Study of the Operations of the Florida Department of Corrections,” January 11, 2016. Available: https://www.flsenate.gov/Committees/Show/CJ/MeetingPacket/3305/4588_MeetingPacket_3305.pdf.

[43] Id. at 27.

[44] Id. at 28.

[45] Id. at 29.

[46] Crime and Justice Institute, “Data-Driven Solutions to Improve Florida’s Criminal Justice System,” February 2018, p. 3. See also p. 9 and accompanying footnotes. Available: http://www.crj.org/assets/2018/01/FINAL_Data-Driven-Solutions-to-Improve-Floridas-Criminal-Justice-System.pdf.

[47] William D. Bales, et.al., “An Assessment of the Development and Outcomes of Determinate Sentencing in Florida,” Justice Research and Policy, vol. 12, No. 1 (2010). https://www.ncjrs.gov/App/Publications/abstract.aspx?ID=255502. This point was underscored by Professor Thomas Blomberg of Florida State University in a presentation to the Florida Senate Criminal Justice Committee. Dr. Blomberg presented research on the link between the 85 percent rule and reduced recidivism, and later clarified that the research he referenced concluded that, “sentence determinacy, whatever the specified time, seems to be an effective deterrent to recidivism.”

[48] Id.

[49] Id.

[50] 921.0024(2), F.S.

[51] Truth in Sentencing at 6.

[52] 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.

[53] Id. at 17–18.

[54] 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

[55] Id. at 18.

[56] Id. at 20.

[57] Id.

[58] Id.

[59] Id.

[60] 921.0024(2), F.S.

[61] See Mary Price, “Weaponizing Justice: Mandatory Minimums, The Trial Penalty, and the Purposes of Punishment,” Federal Sentencing Reporter (2019) 31 (4–5): 309–315. https://online.ucpress.edu/fsr/article-abstract/31/4-5/309/109300/Weaponizing-Justice-Mandatory-Minimums-the-Trial?redirectedFrom=fulltext.

[62] Greg Newburn and Sal Nuzzo, “Mandatory Minimums, Crime, and Drug Abuse: Lessons Learned and Paths Ahead,” James Madison Institute, February 2019. Available: https://www.jamesmadison.org/mandatory-minimums-crime-and-drug-abuse-lessons-learned-and-paths-ahead/.

[63] On how quantity-based drug sentencing laws fail to reflect individual culpability, see United States v. Diaz, №11-CR-00821–2 (E.D.N.Y. January 28, 2013), quoted in Rachel Barkow, Prisoners of Politics, p. 23.

[64] Office of Program Policy Analysis & Government Accountability, “Opinions Are Mixed About Sentencing Laws for Painkiller Trafficking,” Report №12–02, January 2012. https://www.splcenter.org/sites/default/files/oppaga_mandatory_minimum_for_opiod_painkillers_report.pdf.

[65] Truth in Sentencing, at 14.

[66] See, e.g., Emily Mahoney, “Hundreds of Florida inmates are serving drug sentences no longer in state law,” Tampa Bay Times, November 13, 2019. Available: https://www.tampabay.com/special-reports/2019/11/13/hundreds-of-florida-inmates-are-serving-drug-sentences-no-longer-in-state-law/.

[67] 775.087(2), F.S.

[68] CBS News, “Tampa Mother Gets 20 Years for Firing Warning Shot at Husband,” May 19, 2012. https://miami.cbslocal.com/2012/05/19/tampa-mother-gets-20-years-for-firing-warning-shot-at-husband/.

[69] Associated Press, “Lawmakers question consequences of 10–20-Life,” March 4, 1999.

[70] Lakeland Ledger, “Unintended Consequences?” March 7, 1999.

[71] Id.

[72] Florida House of Representatives, Final Analysis of CS/CS/HB 113, May 12, 1999. Available: http://archive.flsenate.gov/data/session/1999/House/bills/analysis/pdf/HB0113S2Z.CP.pdf.

[73] Alex R. Piquero, “Reliable Information and Rational Policy Decisions: Does Gun Research Fit the Bill?” Criminology and Public Policy 4, 4 (2005): 779–798.

[74] Urban Institute, “A Matter of Time: The Causes and Consequences of Rising Time Served in America’s Prisons,” July 2017. https://apps.urban.org/features/long-prison-terms/intro.html.

[75] Piquero, note 73, pp. 786–94.

[76] 775.082, F.S.

[77] Florida Senate Bill Analysis, SB 1716 (2020). Available: http://www.flsenate.gov/Session/Bill/2020/1716/Analyses/2020s01716.cj.PDF.

[78] Bureau of Justice Statistics, Prisoners in 2017. Available: https://www.bjs.gov/content/pub/pdf/p17.pdf.

[79] See, e.g., Laura Cassels, “Moms condemn lengthy prison terms as Senate weighs sentencing reforms,” Florida Phoenix, February 6, 2020. https://www.floridaphoenix.com/2020/02/06/moms-condemn-lengthy-prison-terms-as-senate-weighs-sentencing-reforms/.

[80] Criminal Punishment Code Task Force final report, available: http://myfloridalegal.com/webfiles.nsf/WF/MNOS-BR3QFD/$file/Final+Criminal+Punishment+Code+Task+Force+report+June+30,+2020.pdf.

[81] See Thomas Sowell, A Conflict of Visions, pp. 17–19 (2002).

[82] Criminal Justice Estimating Conference, analysis of SB 642 (2019), p. 21. Available: http://edr.state.fl.us/Content/conferences/criminaljusticeimpact/CSCSSB642.pdf.

[83] Crime and Justice Institute, note 5, at 24.

[84] Paul Heaton, “Hidden in Plain Sight: What Cost-of-Crime Research Can Tell Us About Investing in Police,” RAND Corporation, 2010. https://www.rand.org/pubs/occasional_papers/OP279.html.

[85] Heller, Sara B., et.al. “Thinking, Fast and Slow? Some Field Experiments to Reduce Crime and Dropout in Chicago,” National Bureau of Economic Research, May 2015. https://www.nber.org/system/files/working_papers/w21178/w21178.pdf.

[86] Id.

[87] Anthony A. Braga, et.al., “Focused Deterrence Strategies and Crime Control: An Updated Systematic Review and Meta-Analysis of the Empirical Evidence,” Criminology & Public Policy, vol. 17, issue 1 (2018). https://onlinelibrary.wiley.com/doi/pdf/10.1111/1745-9133.12353?casa_token=CeWw6sfL-WoAAAAA:897nLLH_z7jDHlMNx88iFUI1NLkLQFvedLd1syo-wBuh6obSkTE4s-lcrCol5zCF_rflfEIHw9skm2al. See also Thomas Abt, Bleeding Out (2019).

[88] Senator Keith Perry, “Florida Legislature Must Spend to Further Reform Our Prisons, Help Offenders,” Juvenile Justice Information Exchange, January 2020. https://jjie.org/2020/01/22/florida-legislature-must-spend-to-further-reform-our-prisons-help-offenders/.