The Truth about “Truth in Sentencing” in Florida: A Rebuttal to the Florida Sheriffs Association — Part 6
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Note: This is Part 6 of an ongoing series. Part 1 is here. Part 2 is here. Part 3 is here. Part 4 is here. Part 5 is here.
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 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, where defendants go to trial where they are convicted by a jury of their peers, and where 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.[1] 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.”[2] 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.”[3] Moreover, for cases not adjudicated by plea, the Criminal Punishment Code creates a “lowest permissible sentence” that further restricts judicial discretion.[4] 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,[5] 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.”[6] Unfortunately, Florida’s drug trafficking statute covers a range of behavior that does not necessarily correlate with high-level culpability in the drug trade.[7] 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 conservative radio talk show host and Medal of Freedom recipient Rush Limbaugh is a “drug trafficker.”
As a result, sentences intended for drug kingpins have been and 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.[8] 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.”[9]
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 clear 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.[10]
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.[11] 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.”[12]
Despite the stated intent, some legislators and critics warned of the law’s potential unintended consequences.[13] Then 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.[14] He also acknowledged the mandatory minimums would generate injustices in individual cases, but promised to correct them by using his commutation authority.[15]
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.”[16] That prediction proved optimistic. Through June 2004, prison admissions under 10–20-Life totaled nearly 4,000, or 226 percent higher than predicted.[17] By 2016, more than one in ten state prisoners — nearly 11,000 total — had been sentenced under 10–20-Life.[18] Meanwhile, there is little evidence 10–20-Life has done anything to reduce violent crime.[19]
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 finding himself in a bar brawl and 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 and Weyant, both a first-time offenders, remain in prison. Giles has already served more than ten years, and isn’t scheduled for release until 2035. Weyant has served twelve years; without intervention he will remain incarcerated until 2028.
Per the FSA report, by definition every violent offender deserves prison, and further, every prisoner deserves whatever prison sentence was imposed because that sentence reflects the considered wisdom of the sentencing judge. Of course, for 10–20-Life, 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, Giles, and Weyant, 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.[20] 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[21], a number slightly higher than the entire prison population of Vermont, and just shy of the total prison population of North Dakota.[22]
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. Again, mandatory minimum sentences deprive sentencing courts of the power to impose appropriate sentences in PRR cases. Again, this has led to egregious injustices.[23]
In fact, in recognition of systematic disproportionate 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.[24]
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 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.
[1] 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
[2] Id.
[3] Id.
[4] 921.0024(2), F.S.
[5] 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.
[6] 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/.
[7] 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.
[8] 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.
[9] Florida Sheriffs Association, Truth in Sentencing at 14.
[10] 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/.
[11] 775.087(2), F.S.
[12] 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/.
[13] Associated Press, “Lawmakers question consequences of 10–20-Life,” March 4, 1999.
[14] Lakeland Ledger, “Unintended Consequences?” March 7, 1999.
[15] Id.
[16] 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.
[17] Alex R. Piquero, “Reliable Information and Rational Policy Decisions: Does Gun Research Fit the Bill?” Criminology and Public Policy 4, 4 (2005): 779–798.
[18] 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.
[19] Piquero, supra note 17, pp. 786–94.
[20] 775.082, F.S.
[21] Florida Senate Bill Analysis, SB 1716 (2020). Available: http://www.flsenate.gov/Session/Bill/2020/1716/Analyses/2020s01716.cj.PDF.
[22] Bureau of Justice Statistics, Prisoners in 2017.
[23] 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/.
[24] 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.
