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Designed for fairness, it fails to account for prejudice

Florida’s broken sentencing system Designed for fairness, it fails to account for prejudice This story has been updated from an earlier version.

Justice has never been blind when it comes to race in Florida.

Blacks were first at the mercy of slave masters. Then came Jim Crow segregation and the Ku Klux Klan.

Now, prejudice wears a black robe.

Half a century after the civil rights movement, trial judges throughout Florida sentence blacks to harsher punishment than whites, a Herald-Tribune investigation found.

They offer blacks fewer chances to avoid jail or scrub away felonies.

They give blacks more time behind bars — sometimes double the sentences of whites accused of the same crimes under identical circumstances.

Florida lawmakers have struggled for 30 years to create a more equitable system.

Points are now used to calculate sentences based on the severity of the crime, the defendant’s prior record and a host of other factors. The idea is to punish criminals in Pensacola the same as those in Key West — no matter their race, gender or wealth.

But the point system has not stopped discrimination.

In Manatee County, judges sentence whites convicted of felony drug possession to an average of five months behind bars.

They give blacks with identical charges and records more than a year.

Judges in the Florida Panhandle county of Okaloosa sentence whites to nearly five months for battery.

They lock up blacks for almost a year.

Along the state’s northeast shore, judges in Flagler County put blacks convicted of armed robbery away for nearly triple the time.

Racial disparities in sentencing for felony drug possession, battery and robbery for three Florida counties. SOURCE: Department of Corrections

“It’s unconscionable,” said Wengay Newton Sr., a former St. Petersburg city commissioner and Democrat, who was elected to the Florida House of Representatives in November. “That’s like running a red light in a white car and your ticket is $100 and running a red light in a black car and your ticket is $300.”

The Herald-Tribune spent a year reviewing tens of millions of records in two state databases — one compiled by the state’s court clerks that tracks criminal cases through every stage of the justice system and the other by the Florida Department of Corrections that notes points scored by felons at sentencing.

Reporters examined more than 85,000 criminal appeals, read through boxes of court documents and crossed the state to interview more than 100 legal experts, advocates and criminal defendants.

The newspaper also built a first-of-its-kind database of Florida’s criminal judges to compare sentencing patterns based on everything from a judge's age and previous work experience to race and political affiliation.

No news organization, university or government agency has ever done such a comprehensive study of sentences handed down by individual judges on a statewide scale.

Among the findings:

• Florida’s sentencing system is broken. When defendants score the same points in the formula used to set criminal punishments — indicating they should receive equal sentences — blacks spend far longer behind bars. There is no consistency between judges in Tallahassee and those in Sarasota.

• The war on drugs exacerbates racial disparities. Police target poor black neighborhoods, funneling more minorities into the system. Once in court, judges are tougher on black drug offenders every step of the way. Nearly half the counties in Florida sentence blacks convicted of felony drug possession to more than double the time of whites, even when their backgrounds are the same.

• Florida's state courts lack diversity, and it matters when it comes to sentencing. Blacks make up 16 percent of Florida’s population and one-third of the state’s prison inmates. But fewer than 7 percent of sitting judges are black and less than half of them preside over serious felonies. White judges in Florida sentence black defendants to 20 percent more time on average for third-degree felonies. Blacks who wear the robe give more balanced punishments.

• There’s little oversight of judges in Florida. The courts keep a wealth of data on criminal defendants. So does the prison system. But no one uses the data to review racial disparities in sentencing. Judges themselves don’t know their own tendencies.

Without checks to ensure equality, bias reigns.

Judges say they are not racist. But centuries of racial tension in America, a lack of cultural understanding and negative stereotypes cloud their judgment.

“There’s a built-in expectation that you’re more likely to be violent if you’re African-American, and that’s ingrained in some of our judges,” said Martin McClain, a South Florida defense lawyer who handles death penalty cases across the state. “In some counties, you can just feel the racism.”

Judges contacted by the Herald-Tribune denied discriminating against defendants by race. They said they weigh each case on the merits, and punishments perceived as biased can be taken up with the appeals court.

Some shifted blame to law enforcement. Others pointed to prosecutors.

“The public thinks judges get to do whatever they want, and that’s just not accurate,” said Lee Haworth, a retired senior judge in Sarasota and former chief of the 12th Circuit. “Judges are just blessing what the prosecutor and defendant agreed to. These sentences were handed to the judges on a silver platter. There’s only a tiny percentage where I think the judges could be responsible for the disparities with things like age, gender or race.”

Lee Haworth, a retired senior judge in Sarasota and former chief of the 12th Circuit, said that in most cases, judges are signing off on sentences that the prosecutor and defendant agreed to. H-T ARCHIVE / 2015

To be sure, sentences across Florida are negotiated before they reach the judge for final approval. But a Herald-Tribune investigation found the system still leaves judges with the discretion to show mercy.

They just show it more often to the people who look like them.

Across Florida, when a white and black defendant score the same points for the same offense, judges give the black defendant a longer prison stay in 60 percent of felony cases.

For the most serious first-degree crimes, judges sentence blacks to 68 percent more time than whites with identical points.

For burglary, it's 45 percent more.

For battery, it’s 30 percent.

“You may have had a white child who got a slap on the hand or warning,” said Karimu Hill-Harvey, a retired judge from New Jersey, who now lives in Southwest Florida. “A black child would go straight to jail.”

'What they call leniency'

Seventeen-year-old Allen Christopher Peters entered the criminal justice system as an adult in 2008, when he stuck up a gas station in Lee County.

Peters and his co-defendant made off with about $500 and another $140 worth of merchandise, court records show.

The Cape Coral man, who carried a gun, was charged with armed robbery with a deadly weapon.

The scoresheet calculations determined four years was the “lowest permissible prison sentence” that the court could levy.

Ignoring the guidelines, prosecutors and defense counsel agreed to a plea deal that called for no jail time.

Judge Joseph A. Simpson, who took over the case from Judge Edward Volz Jr., concurred.

Simpson sentenced the white teenager to probation without any incarceration.

Judge Volz was not so lenient with Jaquavias Sturgis.

Allen Peters

Jaquavius Sturgis

Just before 9 a.m. on a Monday in 2012, two men wearing black hooded sweatshirts and ski masks entered a Lee County convenience store and demanded money. They were armed with guns.

They grabbed $300 from the register. They took the store clerk’s wallet and jewelry.

Prosecutors charged Sturgis with one count of armed robbery with a deadly weapon.

Judge Volz gave the black teen four years in prison, also agreeing to a plea bargain between prosecutors and defense counsel.

Both Peters and Sturgis have three confidential crimes on their juvenile records, which were not taken into consideration. Both were convicted of armed robbery in the same county. Both signed plea deals to avoid trial and both were 17 at the time of their offenses. Both scored the same points.

Nothing in public documents provides an explanation for why they were treated differently. Peters' file has been destroyed, according to the State Attorney's Office.

“My lawyer at the time said this was the best deal I was going to get,” Sturgis said. “I guess that’s what they call leniency.”

The disparity between the two cases is not unusual.

Since 2004, Lee County judges sentenced black defendants convicted of robbery to an additional 16 months on average compared with whites who scored the same points.

Experts say similar outcomes play out in courtrooms across Florida.

“I have two kids. One is a white kid from the suburbs. The judge sees that the kid kind of looks like his son and talks like his son, and the judge thinks: ‘This kid is a good kid. I’ll give him a second chance,’” said Howard Finkelstein, Broward County’s public defender. “Second kid is urban, has a bounce in his step, from a poor community. When he speaks, his tone is a little different, and the judge thinks: ‘This kid has a bad attitude. I’m not going to give him a second chance.’”

Sara Miles, a spokeswoman for the 20th Circuit, wrote in an email statement that judges in Lee County “strive to avoid any appearance of bias or partiality.”

“I can tell you that our judges sentence defendants according to sentencing guidelines and state statutes,” Miles said in the email. “They do not take any bias into consideration.”

'In the wilderness for a very long time'

Nassau County deputies arrested Timothy Blount for selling five grams of cocaine to an undercover informant in 2005.

He pleaded guilty and scored 28 points.

Judge Robert Foster showed mercy. He sentenced the 21-year-old white man to drug rehab and three years of probation.

The same judge was harder on Zachary Jamison.

Timothy Blount

Zachary Jamison

Charged in 2009 with selling cocaine in Nassau County, the 22-year-old black man also pleaded guilty, scored 28 points and went before Foster.

But probation was not in the cards. Foster sent Jamison to state prison for 13 months.

Nassau County has one of Florida’s widest racial discrepancies in sentencing when it comes to drug crimes, a Herald-Tribune analysis of state sentencing data shows.

Judges presiding over courtrooms in the conservative county north of Jacksonville give blacks an additional 332 days in lockup for felony drug charges. That is more than double the time given to whites with identical records.

“That’s wrong,” said Greg Evers, a former Republican state senator from Milton who chaired the Senate’s Criminal Justice Committee, referring to the statewide disparities uncovered by the Herald-Tribune. “What we were trying to do was to make like crimes have like sentences and to stop discrepancies.”

The courthouse in Nassau County is named after Foster, who was appointed to the bench nearly 30 years ago.

But members of the black community have been calling on him to step down over what they perceive as a bias against minorities, particularly with drug cases. They started an online petition in 2014 that drew more than 630 signatures.

“When you have misconduct and you know it, where do you go?” said Bernard Thompson, a long-time NAACP leader and advocate in Nassau County. “We have been in the wilderness for a very long time.”

Pastor L. Bernard Thompson and his wife, Patricia Thompson, in Fernandina Beach. "When you have misconduct and you know it, where do you go?" asks the long-time NAACP leader in Nassau County. HERALD- TRIBUNE STAFF PHOTO / DAN WAGNER

Foster locks up whites for an average of 224 days for felony drug possession. He gives blacks charged with the same crime and who scored the same points an average of 562 days — nearly a year longer.

Foster adamantly denied discriminating against black defendants.

“From my viewpoint, 29 years on the bench, I don’t care if a defendant is black or white or male or female," Foster said. "I am unaware if that enters my mind in any of my decisions.”

Foster said that every case is different, and even if two defendants commit the same crime under similar circumstances, he believes it is unfair to compare the outcome.

While not addressing the racial disparity, he said his rulings reflect the desires of his community in Nassau to take a hard line on drugs in all cases.

"If you have a community that believes selling drugs is wrong, and there should be consequences to it, there will be sentences that comport to that," he said. "I am part of the community. I reflect the values of my community.”

Judge Robert Foster presides over court proceedings at the Robert Foster Justice Center in Yulee, Fla. An analysis of two state databases shows Foster sentences black defendants convicted of felony drug possession more harshly than white defendants convicted of the same crime. HERALD-TRIBUNE STAFF PHOTO / DAN WAGNER

Racial tension is nothing new in Nassau.

The county is a swath of inland communities tucked just below the Georgia border, where small churches and modest ranch homes are about the only things separating miles of pines east of the Okefenokee Swamp.

But across the river, that rural landscape shifts to Amelia Island, a popular vacation destination with black neighborhoods on its northern and southern tips.

A woman at her home in Fernandina Beach. HERALD-TRIBUNE STAFF PHOTO / DAN WAGNER

Amelia was once home to a slave trading post during Spanish rule. A plantation owner later deeded the southern end of the 13-mile stretch of beach to his workers, forming a pocket of poor but free blacks.

In 1935, a black-owned insurance company bought the land and turned it into a black resort, dubbing it “American Beach.”

“It was called ‘the negro playground,'” said Evelyn Jones, who grew up in Nassau County and now lives on American Beach. “You could come here and not have to worry about humiliation. That’s what made it so grand.”

White vacationers wanted no part of it.

They walled off their gated subdivisions, manicured golf clubs and Atlantic resorts on Amelia Island from American Beach, where some of the duplexes and cottages sit abandoned and blighted — awaiting reinvestment.

Nassau county map

Blacks at the other end of the island near downtown Fernandina Beach face a different kind of racial pressure. They say police use informants to comb their community for drugs, sending young residents to court over and over and contributing to a sense of hopelessness.

“There’s a negative perception when you walk into the court,” said the Rev. Thomas Coleman, a pastor in Nassau County, referencing his black skin. “When they see you walk in, they see you as the outcast.”

'Embarrassed by the numbers'

Until the 1980s, judges had wide discretion over everything from levying fines to imposing prison sentences.

In search of consistency, Florida adopted sentencing guidelines in 1983.

State lawmakers continued to tweak sentencing rules over the ensuing years, adding the Criminal Punishment Code in 1998 in hopes of further leveling the playing field.

Prosecutors now assign points to defendants based on the severity of their crime, whether they have a prior record and the circumstances surrounding their arrest. Points are added for victim injuries or flashing a gun. Scores go up for violating probation or skipping court.

Prosecutors then tally the numbers to determine the minimum sentence required by law.

Judges may depart from the minimum if the defendant is cooperative or needs special treatment, but the law says any departures must be made in writing.

In Citrus County, Leroy Waters scored 4.6 points when convicted of driving with a suspended license for the third time — a felony. Waters obtained a public defender and signed a plea agreement that included jail time.

In this December 2014 file photo, Citrus County Judge Richard Howard balls his fist during a sentencing hearing. CITRUS COUNTY CHRONICLE / MATTHEW BECK

Judge Richard Howard sentenced the 42-year-old black man to 89 days in county lockup.

When Paul Penninger was busted for the same charge, he also went before Judge Howard. He used a court-appointed lawyer, pleaded no contest and scored a matching 4.6 points.

The agreement called for no jail time, so the judge took it easy on the 48-year-old white man, sentencing him to a year on probation.

The judge also withheld adjudication, which means Penninger is not considered a convicted felon.

Penninger later violated the terms and could have been sentenced to as long as five years in prison. But once again, there was no call for lockup and Howard let the white man go free.

“I’m embarrassed, frankly, by the numbers,” said Derek Byrd, a criminal defense attorney in Sarasota. “I knew that the system had a disparity between the treatment of blacks and whites. I did not know it was to that degree. We obviously have a long way to go.”

Howard turned down five requests for comment. His judicial assistant cited his busy court schedule, which included a murder trial. When told the nature of the story, she said “every case is different so it's hard to compare them.”

Critics of the point system say discrepancies jeopardize the fundamental function of the court, which is held together by the perception that it is fair and unbiased.

“Judicial neutrality is the basis of judicial legitimacy,” said Gregory Pingree, a professor at Florida Coastal School of Law in Jacksonville. “It’s why people follow the laws.”

'Every human has biases'

The Circuit Court in Jacksonville reassigned a judge earlier this year over allegations that he said all blacks should “go back to Africa.”

Another Florida judge “thanked God” in open court that a Pakistani doctor on trial “did not marry an American woman.”

In Broward County, a criminal judge asked to be reassigned after saying an attempted murder case was “NHI” — an acronym for “no humans involved.” The defendant, victim and all of the witnesses were black.

But such examples of overt racism in Florida are rare.

Racial discrepancies in sentencing, experts say, more likely involve implicit bias — subtle stereotypes developed through upbringing, schooling, television and movies.

Black men have long been stereotyped as scofflaws. Broadcasts flash images of black suspects lined up in chains and jailhouse orange. Hollywood often casts blacks as criminals.

A series of police killings of black men in recent years has exacerbated the divide. TV coverage shows throngs of blacks and whites, on opposite ends of streets or separated by barricades, jeering. Altercations are blasted across social media. They roiled the presidential race.

“People think the face of crime is a black man with jewelry and tattoos,” said LeRoy Pernell, a law professor and former dean at the Florida A&M University College of Law, a historically black school. “People in the criminal justice system are very different than that image. We’ve got to be able to show a different face.”

"People think the face of crime is a black man," observed LeRoy Pernell, a law professor and former dean at the Florida A&M University College of Law. HERALD-TRIBUNE STAFF VIDEO / DAN WAGNER

An implicit bias test on the Internet, taken by millions of people, found that nearly three-fourths of participants showed at least some negative biases toward blacks.

Run by researchers from Harvard, the University of Virginia and the University of Florida, the test reveals that men are more biased than women. Conservatives are more biased than liberals.

“Every human has biases,” said Scott Bernstein, a judge for the 11th Circuit Court in Miami who teaches diversity to judges. “The goal is not to rid yourself of biases, but to be conscious of them. As judges, we know to set biases aside. But when you’re not aware that this is going on in your brain, that’s where trouble comes.”

A Cornell University study raised similar concerns about the role that unconscious biases play in the courts.

Cornell researchers used experiments in 2009 to gauge racial biases among 133 participating judges. A majority of white judges in the group favored whites. Those judges gave harder sentences to black defendants in hypothetical cases if they had been primed with words tied to black culture.

“The worst thing you can say to a judge is that they’re corrupt or biased, especially with regards to race,” said Jeffrey Rachlinski, a law professor at Cornell who helped author the study. “But we found that judges are not different than most adults. And most white adults tend to associate African-Americans with negative imagery, and so that’s what we see in judges, too. They’re part of a society that more often associates African-Americans with violence and crime.”

New judges in Florida must complete 90 minutes of training on racial biases within their first 12 months on the job. They are required to take an additional eight-hour course on diversity within three years.

Some say that is not enough.

“It took us a lifetime to develop our biases,” said Lorie Fridell, a University of South Florida criminology professor and expert on bias training. “It’s not easy to make them go away.”

'No transparency'

The state collects massive amounts of data on criminal defendants — everything from race, gender and date of birth to the name of their attorneys, the presiding judge, their charges and sentence.

The courts use this information to measure how long it takes cases to move through the system and to hire more judges when needed.

The Florida Department of Corrections collects similar data on criminal sentencing. It files a report each year showing how many people are incarcerated or placed on probation — and how many are sentenced below their minimum recommendation.

But neither the courts nor corrections use data to check for racial discrimination on the bench.

Judges don’t know their own sentencing habits.

“There is no transparency,” said Michael Buchanan, a criminal defense lawyer in Gainesville. “It would be nice if there was just a place you can click and see what a judge is doing … sentencing as far as crime and race.”

Although they are among the most powerful elected officials — able to decide on life and death — judges are largely left to govern themselves.

“The system doesn’t have built within it any mechanism for evaluating racial bias,” said Bryan Stevenson, a lawyer and national expert on social injustice. “It’s almost like it’s indifferent. There’s a presumption of dangerousness assigned to black people borne out of discretion in sentencing, borne out of prosecutorial discretion, borne out of law enforcement and police discretion.”

Bryan Stevenson, a lawyer and national expert on social justice, says the criminal justice system does not have a mechanism for evaluating racial bias. HERALD-TRIBUNE STAFF PHOTO / DAN WAGNER

Defendants in Florida may appeal verdicts believed to be the result of racial discrimination.

But the appeals court can only address overt racism. It is difficult for lawyers to prove subconscious bias.

The same is true for the Judicial Qualifications Commission, or JQC, the government agency tasked with regulating Florida judges for ethical misconduct, including issues of discrimination.

Most of the JQC’s investigations are handled in secret, and complaints against judges are kept confidential unless formal charges are brought to the Florida Supreme Court. So it is impossible to determine how many complaints are related to race.

JQC staffers argue that the agency is doing its best with the resources available. They say the confidentiality was put in place to protect those filing complaints — not the judges.

There were more than 770 complaints filed in fiscal year 2015 to the JQC. Ten resulted in formal charges, but none of them involved racial discrimination.

“You don’t have the good ol' boys taking care of their judges,” said Michael Schneider, executive director and general counsel for the JQC. “There is accountability. We take a lot of heat for going after judges … It’s a tricky business.”

The final check on judges is the electoral process.

Judges told the Herald-Tribune that if Floridians disagree with their decisions, they can vote them out of office.

But given the secrecy of the complaint system and the dearth of statistical information regarding rulings, the overwhelming majority of judges keep their jobs for as long as they like. Some appointed judges have spent decades on the bench without their names ever appearing on a ballot.

“Nobody has asked any questions of the judge,” said Deborrah Brodsky, director of Florida State University’s Project on Accountable Justice. “We have put trust in a criminal justice system with no accountability. For way too long, we simply felt safer thinking the criminal justice system would take care of all of the problems without any oversight.”

'A system worthy of respect'

Bias against blacks in Florida’s courts is shaped, in part, by the makeup of the bench.

Out of more than 900 sitting circuit and county judges, 62 are black, or about 7 percent. Only 28 of those judges preside over serious criminal cases.

Based on demographics, it is difficult for black judges to get elected in most corners of Florida. Since Gov. Rick Scott took office in 2012, it also has become less likely that blacks will be appointed.

Ten percent of the more than 400 judges appointed by Jeb Bush were black. That compares with just 6 percent of the more than 200 judges appointed by Scott.

“I worry when I see a bench that’s predominantly white,” said Ciara Torres-Spelliscy, a law professor at Stetson University. “There’s nothing disqualifying about being white or male. They can be brilliant. I want brilliant judges on the bench. But I worry that there are brilliant minorities as well, and they got dismissed by a nominating process that was biased.”

The Herald-Tribune’s analysis of the state’s Offender Based Transaction System — which tracks every criminal case in Florida from arrest to appeal — shows that black judges are fairer when it comes to sentencing black defendants in their courtrooms.

Across third-degree felonies, white judges in Florida sentence black defendants to 20 percent more confinement than whites who committed the same crimes.

Black judges, on the other hand, sentence blacks and whites more equally. White defendants receive just 3 percent more time.

Black female judges give out the longest overall sentences, but they also are the most fair. Their average sentences for black and white defendants are dead even, an analysis of third-degree felony data compiled by county clerks shows.

“When I get on the bench, I see myself as Patrice first,” said Circuit Court Judge Patrice Moore, who presides over family court in Pinellas County. “I try not to see color. I see people and case numbers. I don't know if it's an anomaly. Not every African-American woman is the same. What we have in common is the color of our skin, that we're women and that we're judges. Beyond that, I don't know. But I do think women, in general, are a little fairer. It's in our nature. ”

Judge Patrice Moore meets and greets people during a candidate forum in 2010. TAMPA BAY TIMES / MELISSA LYTTLE

Legal experts say disparities in sentencing stem from a lack of understanding between cultures. They say some white judges struggle to see potential in a young black man, especially if he already appears disgruntled by the system.

During a recent first-appearance docket in Gainesville, the family members of defendants — mostly black — packed the chambers wearing a baseball jersey, a Teenage Mutant Ninja Turtles T-shirt and camouflage Chicago Bulls pajamas. One woman had curlers in her hair. Another man was wearing shorts and knee-high socks stitched to look like stacks of dollar bills.

The lawyers — mostly white — assembled in the courtroom wearing traditional dark business suits.

Judges are not supposed to consider these stark differences in appearance. But sentencing patterns show it remains difficult for many of them.

“What these judges should think about is what it would have been like for them when they were 19 to be in front of someone that’s culturally completely different and to have their entire life changed because of that,” said Robert Hambrick, a defense attorney in Clearwater.

Lawyers also cite the need for more cultural understanding among colleagues on Florida’s bench.

If a white judge interacts with a black judge, that same white judge might look differently at the young black defendant standing before him at a sentencing hearing. He may see the potential that lifted his black colleague, said Kenneth Nunn, a University of Florida law professor and assistant director of its criminal justice center.

Kenneth Nunn, a University of Florida law professor and assistant director of its criminal justice center, says the system does not do enough to reduce biases. HERALD-TRIBUNE STAFF PHOTO / DAN WAGNER

“People you work with, that you deal with as an equal, that you respect, make a difference when you look at potentiality of the kid before you,” Nunn said.

Nunn, who is black, believes most judges strive to be fair, but the system does not do enough to reduce biases. He says it’s the same kind of prejudice within law enforcement that sparked the Black Lives Matter movement.

“Some deaths, some pain, some suffering is more important than others,” Nunn said. “All lives matter? No, there is a hierarchy of whose life matters most.”

“We want defendants — individuals — who respect the system. But we have an obligation as a community to create a criminal justice system worthy of respect.”

*Clarification: Lee County Circuit Judge Joseph A. Simpson sentenced Allen Christopher Peters to probation without incarceration for armed robbery with a deadly weapon. An earlier version of this online story incorrectly listed a different judge who had originally been assigned the case.