The Truth about “Truth in Sentencing” in Florida: A Rebuttal to the Florida Sheriffs Association — Introduction and Part 1
By: Greg Newburn
Tags: Florida, Sentencing, Criminal Justice Reform, Criminal Justice, Mandatory Minimums

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 (now Congressman) 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 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.

Part 1: 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 treatment 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 future posts 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 those 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.

[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, supra 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.