Barney Bishop stood up before a Senate committee Wednesday and wrote the direct mail campaign ad every legislator fears.
“You’re helping drug traffickers,” he said of the bill before the Senate Justice Appropriations Subcommittee that will give judges discretion when sentencing non-violent drug offenders to prison. “Do you know how much pot you’ve got to have to meet the trafficking minimum for this bill? You have to have 25 pounds. That’s 25 backpacks.”
It is exactly the kind of out-of-context rhetoric that worries lawmakers as they consider legislation aimed at shrinking something else that scares them: Florida’s expensive prison system. The idea behind the package of reforms is to slow the prison revolving door by diverting non-violent drug felons from prison to local jails, and treating those with mental illness and addiction while they are locked up. The savings from prisons is used to pay for the programs.
Similar reforms have been successfully adopted in dozens of other states, fueled by a rare coalition of conservative and liberal activists, yet Florida remains an outlier.
Several bills that make small but powerful changes to state law are inching towards passage in the Florida Senate with bi-partisan support and little fanfare but, as has been the case for years, progress is slow if not non-existent in the Florida House. House Speaker Richard Corcoran of Land O’Lakes is considering a run for governor and wants to avoid antagonizing the more conservative factions of his party.
Bishop won’t name his clients other than to say his Florida Smart Justice Alliance represents “center-right law enforcement interests.” The bill he opposed, SB 694, allows the court to depart from mandatory minimums sentences for drug trafficking under certain circumstances if the crime did not involve a gun or cause bodily injury or death.
“No one is becoming soft on drug kingpins,’’ said Mark Levin, who founded Right on Crime, a conservative national organization that advocates for sentencing reforms and is supported by Republicans such as Newt Gingrich and Mike Huckabee. He told the Senate committee that Bishop had his facts wrong.
Florida’s minimum mandatory sentencing laws consider someone a drug trafficker because they possess a certain amount of the drug, even if they are using it to feed their own addiction, Levin said. He cited the case of a 65-year-old cancer victim with no prior record who forged a prescription for hydrocodone and is serving 15 years.
“What he did was wrong, but sending someone to prison for 15 to 20 years is not treatment and is not prioritizing our limited prison space,’’ he said. “This is a conservative bill.”
Research in Florida shows that 63 percent of the people imprisoned for drug offenses have no prior prison record and over 400 are elderly, Levin said. The state needs judges to have the discretion “to see if the sentence fits the crime. These people are not a danger to public safety based on their background.”
The committee ignored Bishop’s warning and voted for the bill, but a similar measure has not gotten a hearing in the House.
“This year, the momentum is stronger than ever in the Senate for real criminal justice reform. It remains to be seen if our friends in the House share that appetite.” said Sen. Rob Bradley, R-Fleming Island, chair of the Senate Appropriations Committee.
He, along with St. Petersburg Republican Sen. Jeff Brandes and Orlando Democrat Sen. Randolph Bracy, have led the push for criminal justice reforms.
Florida incarcerates 96,000 inmates at an annual cost of about $2.4 billion a year. Data from Florida TaxWatch, the James Madison Institute, the Reason Foundation and other conservative groups shows that many prisoners are serving two to three years in prison, are addicts who get little or no treatment, and become “revolving door offenders.”
“I can tell you it is a terrifying situation to hear the budget conversations that we are having right now -- because it feels like the whole place is on fire,’’ said Brandes, who heads the budget subcommittee which oversees the prison budget.
He describes Florida’s prisons as in constant triage mode: Cell phones and illegal drugs are routinely smuggled into prison cells. Inmates are aging and healthcare costs are exploding. Staff shortages are so common that captains, who are paid a salary, demote themselves to qualify for overtime pay. And, as the Miami Herald has documented, violence and abuse is constant and deadly
In the last year, two unavoidable realities made incarcerating these prisoners more expensive.
The first was a $95 million legal debt from four lawsuits against the Florida Department of Corrections, incurred in 2017 after years of neglecting inmate mental health, Hepatitis C, and accommodations for the disabled. The second was the inability of the state to hire enough corrections officers to effectively manage its prisons.
Even after a pay raise for corrections officers last year attempted to make the job more appealing, the state has been able to hire only enough guards to properly manage 86,000 inmates.
“We are working them to death because of the vacancy rate,” Corrections Secretary Julie Jones told a Senate committee in October.
Brandes is using the Senate budget to steer money into alternatives to prison for non-violent offenders through drug treatment courts, mental health courts and veterans courts. He also has drafted a multi-year reform plan that this year includes these measures:
• SB 928 — Reducing the number of low-risk offenders in the prison system by raising the threshold for when a theft is considered a felony from $300 to $1,500.
• SB 1392 — Giving police the power to issue civil citations instead of arrests for adults and juveniles caught for some misdemeanors.
• SB 1222 — Providing reentry programs that require eligible inmates to get a 90-day, in-person treatment program before they are released back into the community.
• SB 1490 — Allowing “low risk” offenders to get out of jail before trial with electronic monitors without having to pay expensive bail bonds.
• SB 1270 — Ending the suspension of driver licenses for failure to pay court fees or fines.
And allowing sick and elderly prisoners convicted of non-violent crimes to transfer to hospice programs and treatment centers.
“We’re not seeking to reinvent the wheel here,” Bradley explained. “Republican, conservative states like Texas and Mississippi and Georgia have already done these things.”
On Feb. 14, the Senate Appropriations Subcommittee on Criminal Justice approved six bills that gives judges discretion in drug cases, keep more juveniles out of prison, give more inmates job training and ends the practice of taking people’s drivers license for non-driving offenses.
On Feb. 13, the House Justice Appropriations Subcommittee advanced its alternative: PCB JDC 18-02, a bill to spend $1.7 million to gather criminal justice data from around the state in an open, transparent and uniform manner, giving the state an unprecedented tool to measure problems and success.
“Some of these things we know enough about to move forward with those proposals,” but others need more data, said Rep. Chris Sprowls, R-Palm Harbor, who chairs the House Judiciary Committee and has sponsored the House data bill. For example, he said, “we have very very little information on basic things” like the number of offenders released from prison who return to crime.
“You can’t change what you can’t see,’’ said Amy Bach, director of Measures for Justice, an organization that gathers criminal justice data at the county level. She called the House proposal “revolutionary.”
But proponents of sentencing reforms say they already know what the data will say and fear the measure is just a delaying tactic.
“Rather than spend hundreds of thousands of millions of dollars collecting data and preparing more reports, I’ve got the executive summary and conclusion already written,’’ Bradley said. “It’s that real criminal justice reform requires sentencing reform.”
Twenty years ago when many of Florida’s current sentencing laws were enacted, the state tried to get a grip on its rising crime rates by embracing solutions with simple concepts and catchy names: “Three Strikes You’re Out,” “10-20-Life,” and “85 percent” — a reference to the required amount of all sentences served.
“These are sound bites. They are not good policy,” Brandes says now.
The rigid solutions led to longer sentences and, with the absence of funds for treatment, training or re-entry programs, Florida’s prisons returned 85 percent of inmates back into the community and returned to a life of crime, he said.
To better understand the impact of Florida’s policies, Brandes had the Senate hire the non-partisan Boston-based research center, the Crime and Justice Institute, to research Florida’s criminal justice data and compare it to other states.
The institute found that although Florida’s crime rate is down and fewer felons are going to prison, the state has spent $100 million more on incarcerating inmates since 2014, and the costs keep climbing. Florida incarcerates 21 percent more people than the national average at an annual cost of $2.3 billion — $100 million more than 2014.
“It’s unsustainable,” Brandes said.
The Crime and Justice Institute research found that Florida’s mandatory minimum sentences and sentence enhancements for the state’s stagnant prison population have led to sentences 22 percent longer than than they would have received before the policies were in place, and Florida’s 85 percent rule kept them in prison 18 percent longer here than in other states.
Those factors “restricted the ability of the department to manage its population,” said Len Engle, the institute’s policy director, who led the study.
The report also concluded that the assumptions made decades ago when the tough-on-crime policies were adopted have proven expensive, inefficient and, in some cases, wrong.
The institute found, for example, that sending low-level offenders to prison for longer prison terms is more likely to increase their criminal behavior — especially for non-violent offenders — than shorter terms. It concluded that treatment programs delivered in the community are more effective than programs delivered in prison, and that people age out of criminal behavior as they get older.
Rep. Ross Spano, R-Dover, who is on the House Judiciary Committee and is a candidate for attorney general, is among those former hardliners who now says he has “come around.”
He agreed that some measures, like raising the felony theft threshold from $300 to $1,500, is a “no-brainer” because of inflation. But others, like letting people out from jail on non-monetary release, restoring rights to felons after prison and changes to mandatory minimum sentences require more information to ensure the Legislature isn’t simply being reactionary.
Bracy, who chairs the Senate Criminal Justice Committee, said the reforms for him are personal.
“I have friends who are as close to me as family who have been incarcerated for long periods, and their incarceration has brought this to my attention,” he said.
He said that he has accompanied young people in court and many of them, “not even realizing the consequences” would agree to a felony plea for “something that may be considered minor but they have this felony that will now be with them for the rest of their lives.”
Levin of Right on Crime said that 33 states have reduced incarceration and reduced crime by implementing similar reforms.
“No one’s lost an election in the last number of years for advancing criminal justice reform,” he said. In fact, he said, Republican Gov. Nathan Deal in Georgia campaigned on it and increased his base of support.
Bradley, Bracy and Brandes all realize that changing the system will take years.
The Koch network recently went a step beyond its years-long lobbying effort in Florida, and last month announced they would spend $1 million in the state — with more money to follow — to research and develop effective programs to help released inmates re-enter society.
“We think it’s a great opportunity to make some big progress on this issue with re-entry and prison reform,” said Mark Holden, senior vice president of Koch Industries, Inc.
Bracy said the “entire system needs an overhaul” but “we’ll see what we can pass this year, and then we’ll keep taking bites out of the apple.”
Brandes, who is term limited in 2022 calls it his “passion project.”
“I have five years left,” he said. “That’s about the amount of time I think it will take to really pivot the corrections system into something we’re really proud of, instead of something we’re terrified of.