Column: Politics, not good policy, gave us Florida's current criminal justice system

Criminal justice reform in Florida has too often been about politics, not policy. But the Legislature has a chance to do better. [Times files (2018)]
Criminal justice reform in Florida has too often been about politics, not policy. But the Legislature has a chance to do better. [Times files (2018)]
Published Apr. 30, 2019

Proponents of criminal justice reform in Florida remain hopeful. The Florida Senate and House have each proposed its own version of a Florida "First Step Act." On Monday, the House passed a bill which among other things, raises Florida's theft "threshold" for a felony charge. The Senate bill, however, goes much farther to reduce the prison population.

Opponents of the Senate bill, including the Sheriffs Association, police chiefs and prosecutors, argue that scaling back prison sentences would endanger public safety. But the laws that opponents are fighting to maintain were never about public safety. They were about politics. By not supporting the Senate bill, House representatives are simply assenting to past politicians' political tactics, not making sound public policy.

The Senate bill allows judges to depart from some mandatory minimum sentences for drug trafficking offenses when the offender is non-violent. This sentence remains in Florida law because of a political compromise. In 1993 in order to secure the Legislature's support for building prisons, Gov. Lawton Chiles had to appeal to both South Florida Democrats concerned about racial inequality and Republicans concerned about raising taxes. As a result, the "Safe Streets Act" repealed some drug offense mandatory minimum sentences (just not for drug trafficking) and it committed to pay for prison operations out of the general revenue fund without a special tax. Despite the name of the bill, Chiles promoted building prisons, not because he thought they reduced crime, but because he faced on-going opposition from Republican challengers who campaigned on "truth-in-sentencing." In his 1994 annual address to the Legislature, Chiles urged legislators to do the difficult work of finding real solutions to violence instead of spending "the people's money by engaging in demagoguery or posturing."

The Senate bill also reduces from 85 percent to 65 percent the amount of a prison sentence a prisoner must serve. Again, the 85 percent benchmark is an artifact of politics. Due to prison overcrowding, in the early 1990s the state released many Florida prisoners after only serving 35 to 50 percent of their sentences. Everyone agreed that the system didn't make sense, but neither Chiles nor the Legislature wanted to make the hard choices to reduce the prison population so that some prisoners could serve more of their sentences. Instead, the Sheriffs Association and the Prosecuting Attorneys Association forced their hand, organizing a petition drive for a constitutional amendment that would require prisoners to serve 85 percent of their sentences. The amendment never made it on the ballot, but future governor and then state Sen. Charlie Crist publicly derided Chiles' efforts to end "early releases" and quickly sponsored a bill that mimicked the amendment. Legislators were afraid to oppose the bill, even though offenders sentenced under the 85 percent law would serve less than one more year in prison — hardly a substantial public safety benefit.

Finally, the Senate bill makes retroactive the legislative changes that removed aggravated assault as an offense mandating a minimum sentencing under the 10-20-Life statute. Here again, 10-20-Life had nothing to do with public safety. Rather, in 1998 then gubernatorial candidate Jeb Bush proposed 10-20-Life to counter his opponent's attacks based on his opposition to a popular initiative that gave counties the right to regulate gun sales at gun shows. Once he became governor, Bush sold the proposal to legislators as a way to pass stricter "gun control" without upsetting gun owners and the NRA. However, as opponents of 10-20-Life noted at the time, judges already had the option of the sentences mandated by the bill.

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Of course, state legislators should protect public safety. While crime rates are at historic lows, violent crime rates in many parts of the state are way too high. But mandating prison sentences does nothing to reduce violent crime. Insisting that giving judges more discretion endangers the public is disingenuous and it ignores that politics, not concern for public safety, drove crime control policy, particularly in the 1990s. Times have changed. Florida voters may reward Florida legislators for allowing judges to balance the risk to public safety and the benefit of alternatives to prison that avoid further harm to defendants, families and communities.

Heather Schoenfeld is the author of "Building the Prison State: Race and the Politics of Mass Incarceration."