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Defendants choosing prison time

Last month Hernando County prosecutors offered Emmanuel Mobley of Brooksville a deal that would keep him out of prison: All he had to do was plead no contest to several burglaries and thefts, and prosecutors would get him three years' probation. Mobley, 19, agreed to plead no contest, meaning he would not admit guilt but would offer no defense. He refused, however, to accept the probation.

Mobley wanted to go to prison instead.

"I just didn't think that I could do three years on probation without getting back into trouble," Mobley said. "When I asked my lawyer, he told me that if I took 15 months, I would probably just ride the bus up there (to prison), get my paperwork done and then come back home. It made sense to me."

In what is becoming a statewide trend, more and more criminal defendants are rejecting probation and choosing prison. They know there often are more hassles with probation than with the state's overcrowded prison system, which offers defendants the chance to serve less than a third of their original sentence.

"Prison is not the deterrent it used to be, because of the early release program," said Chris Hoyer, Hillsborough County's chief assistant state attorney. "As a result, prison is now often the sanction of choice because, let's face it, nobody is scared of prison anymore. You're just not there very long."

Under probation, defendants are allowed to remain free as long as they do not break the law. In most cases, defendants who receive sentences of probation are required to stay out of bars, stay away from drugs and alcohol, write a monthly report to their probation officer, and pay $15 a month for the cost of their supervision.

Defendants are finding that prison is easier. When a prison term ends, the defendant is finished with the system. No follow-up calls, no reports to an officer, no hassles.

In Mobley's case, he was transferred to the state Department of Corrections on Feb. 12. While he is in prison, two days are being taken off his sentence for each day he serves. A Corrections Department computer in Tallahassee calculates that time for each inmate who has been sentenced to state prison time.

The time off was mandated by the Florida Legislature in response to federal court orders that regulate the number of inmates who can be held in the system.

Additionally, Mobley is eligible to receive months off his sentence in "provisional credits," which are granted by state law each time the state's prison population reaches 97.5 percent of the prison's lawful capacity.

Since the system stays almost constantly at 98 to 98.5 percent of capacity, provisional credits are granted routinely, by computer, to inmates in blocks of 60 days.

"We can't allow ourselves to hit 99 percent of capacity," said Department of Corrections spokesman Bob McMasters. "Because then we would have to throw the doors open and some seriously dangerous people can get out. So we have to keep the provisional credits on almost all the time to keep the population under control."

No studies have been undertaken to determine the extent of the preference for prison over probation.

But the phenomenon has been noticed in most counties. It is seen most often in urban areas where more defendants pass through the court systems. Even in smaller counties like Pasco or Hernando, people involved with the criminal justice system have seen or heard of defendants who would rather go to prison than take probation.

"It has not become prevalent here," said Pasco Circuit Judge Brandt C. Downey III. "I haven't seen a flood of defendants who would rather go to prison than serve probation. But we do see it occasionally."

When community control _ a much stricter form of probation, also called house arrest _ went into widespread use as a sentencing option three years ago, judges and attorneys noticed an almost immediate rejection of the option by many defendants.

The restrictions placed on a defendant's life by community control, including being forced to remain indoors and to report frequently to a community control officer, made it almost impossible for those not interested in reform to comply.

Ultimately, many violated community control, were sentenced to jail terms and then were released early because of overcrowding.

Florida's director of probation and parole, Harry Dodd, recently said the phenomenon, no matter how widespread, is exacerbating Florida's prison overcrowding problem.

"It seems that it is just a more appealing disposition for a lot of defendants to go to prison for a short time rather than being sentenced to some community-based sanction like community control or probation," Dodd said. "No question, it is becoming a vicious cycle."

The cycle is fueled by a system that recently admitted more inmates in a single year than the entire prison structure is capable of holding.

In 1989, the number of people newly admitted to Florida prisons reached 43,940. The prisons hold 40,720 inmates, 10,168 of whom are serving life terms or minimum mandatory terms, making them ineligible for much of the "gain time," or time off a sentence, that most inmates receive.

So for 38,831 inmates, the number of admissions meant that they left prison early in 1989. In many cases, drug defendants and other non-violent criminals were released after serving about one-fourth of their sentences. Others who had committed more serious or violent crimes were released after serving half their sentences.

The average prisoner is released after serving about 33 percent of his term.

State legislators who follow the criminal justice system now say the only way to make prison less attractive may be to require all inmates who are released early to remain on probation.

State Rep. Charles Canady, a Lakeland Republican, has served on the House Criminal Justice Committee since his election to the House in 1984.

Canady said recently that he expects more defendants to begin rejecting probation in favor of prison until the state does two things: builds more prison cells and requires post-release supervision.

"With all the gain-time that's available, an inmate is almost always better off to just go to prison and get it over with than take probation or community control," Canady said. "We need a system that will enhance the early-release programs. When a person is released early, they should be subjected to the jurisdiction of the state for the full period of the original sentence."

Toward that end, legislators in 1989 created the Control Release Authority.

Under the law, the authority, which is composed of the same membership as the state Parole Commission, will review the cases of all inmates. The authority's board will then set release dates for about 900 inmates a week and require all inmates who are released early to remain on probation until the expiration of their original sentence.

"I think we've taken a real progressive step with the creation of the authority," Canady said. "I'm optimistic about it, although we don't know what the fiscal impact will be."

The problem facing the authority is that it may never get a chance to operate. Under the law, it will be allowed only to slow the amount of time inmates receive off their sentences when the state's prisons fall below 97.5 percent of capacity.

Despite the addition of 18,744 prison beds in the past three years, new laws that provide stiffer sentences for more defendants probably will keep the state's prisons near capacity for years to come.

Chris Baird of the non-profit National Council of Crime and Delinquency is working on a study for the state of Florida to determine the relative effectiveness of community control, probation and prison in convincing inmates to go straight.

Baird said recently that he, too, had heard of defendants in Florida who choose prison over probation and that he had seen the phenomenon appear in a couple of Western states with crowded prisons.

But he is not sure of the extent of the problem or of the solution.

"We don't have figures on the problem to determine whether it is becoming something serious, but it is certainly interesting," Baird said.

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