The Truth about “Truth in Sentencing” in Florida: A Rebuttal to the Florida Sheriffs Association — Part 7 and Conclusion
By: Greg Newburn
Tags: Florida, Sentencing, Criminal Justice Reform, Criminal Justice, Policy

Note: This is the 7th and final part of a series. Part 1 is here. Part 2 is here. Part 3 is here. Part 4 is here. Part 5 is here. Part 6 is here.

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

The Comparative-Benefit Imperative

As economist Thomas Sowell put it, in attempting to address social problems, “There are no solutions, only tradeoffs.”[1] 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, “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.[2] 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 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 good reason to believe 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 in an earlier post, 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 determinate 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 — including versions narrower than the very reform proposals FSA opposes! — while ignoring relevant research that suggests narrowing the rule might yield even better public safety outcomes at lower cost to taxpayers.[3]

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.[4]

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.[5] 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.”[6] 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 recent years.[7]

Given finite resources and strained state budgets, policymakers must ensure every dollar the state spends achieves its intended goals more efficiently than competing 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, FSA has offered 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.”[8]

Incentivizing participation in recidivism reducing programming will cultivate within prisoners the work ethic and attitudes that are necessary for successful reentry and rewarded in the free world. 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 reforming Florida’s 85 percent rule.

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

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

[3] 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.

[4] 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.

[5] 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.

[6] Id.

[7] 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).

[8] 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/.