Criminal justice reform legislation derailed but not dead

In early January, a coalition of libertarian, conservative and liberal groups along with members of the House lined up in support of a legislative package that promised to reduce the human and financial cost of crime in Florida.

The reformers gathered outside the Senate Chamber to announce a data-collection bill intended to be the first step of several to come this legislative session that would lower the state’s prison population and improve Florida’s approach to crime and punishment.

It would collect an unprecedented amount of information about individual defendants and the terms of their plea deals in Florida's 67 counties and require each judicial circuit to create civil citation and pre-arrest diversion programs.

It had the support of the libertarian Koch Industries, the left-leaning Southern Poverty Law Center, and most importantly, the conservative Florida House. Tallahassee’s James Madison Institute said the law would give Florida the most transparent system of justice in the nation.

The room brimmed with optimism.

“It’s a new day. Florida is going to lead in criminal justice reform," said Sen. Jeff Brandes, R-Clearwater.

The measure was ultimately approved by both chambers and is awaiting Gov. Rick Scott's signature. But it is an outlier. The ambitious, multi-faceted reform package was derailed by the crime of the year – the massacre of 17 students and staff at Marjory Stoneman Douglas High School in Parkland.

The mass shooting and the ensuing demands for tighter gun restrictions and more school safety forced legislators to switch priorities six weeks deep into the session.

Criminal justice reform advocates were frustrated but say they are undeterred. They intend to use the data bill victory to recapture momentum when lawmakers return to Tallahassee after the November elections.

“It is paramount that we continue to work with our colleagues in the Senate next session and continue to push,” said Rep. Ramon Alexander, D- Tallahassee, who is among a group of lawmakers who said it's time for a fundamental change. “Mandatory minimums, felony threshold, uniform application of sentencing code — this is a fight to the end. We will not yield.”

Data collection

The keystone of the effort is the data bill by Rep. Chris Sprowls, R-Palm Harbor. Sprowls is in line to be House Speaker in 2021. He said it will make Florida safer, the justice system fairer and save the state money.

Florida spends about $2.4 billion a year to keep nearly 100,000 prisoners behind bars, the third largest prison population in the nation.

Florida also keeps prisoners longer. Time served is 38 percent more than the national average. The cost to carry out more than 100 minimum-mandatory sentences and the requirement that inmates serve 85 percent of their sentences has increased prison costs $300 million since 2013.

“You can’t mass-incarcerate yourself out of crime,” said Alexander, who since he was elected has been pushing measures that directly impact many of his Leon and Gadsden constituents.

Larry Nombre of Tallahassee is participating in a pre-arrest diversion program for a non-violent drug offense. Someone tipped off police to the 33-year-old’s marijuana stash. When they burst into his house last June, they found about a pound of cannabis and a scale. He faced a felony charge of drug trafficking.

He was offered a plea deal of two-year probation and a chance to keep his record clean. If he successfully completes his probation he escapes prison. He must abide by a 7 p.m to 7 a.m. curfew, pass weekly drug tests and perform community service.

It is the kind of program that lawmakers wrote the legislation to collect results from statewide. In a sense, it seeks to turn Florida’s 20 judicial circuits into experimental laboratories to identify best practices to reduce crime, recidivism rates and the prison population.

Also, included will be county-level totals about the number of people held in jail daily, the number held in jail before trial, recidivism rates, and misdemeanor caseload. Supporters say the wealth of information will make it easier to see what works in the fight against crime and where problems exist. When the legislation passed the House, Speaker Richard Corcoran boasted that “it will turn the system upside down.”

“We will know where justice does not exist because the data will speak clearly to what is and what is just,” said Corcoran.

Florida's old ways

At the close of the 20th century, Florida went on a crime-fighting spree that increased the prison population by 29 percent over the next 18 years to more than 97,000. The additional inmates grew the prison system 's budget from $1.5 billion to $2.4 billion, a 60 percent increase.

“We embraced every opportunity to lock them up and throw away the key,” wrote former Sen. Paula Dockery, who served 16 years in the Legislature before being term-limited in 2012. “We created new crimes, enhanced penalties and took away judicial discretion.”

While Florida invested in prisons, about a decade ago, neighboring states like Georgia and other mega-states like Texas and New York experimented with other approaches.

They are among the 31 states to have lowered their prison and crime rates, according to the Crime and Justice Institute. They, like Florida, had passed a series of tough on crime legislation at the turn of the century but then started to revisit those measures.

Fewer mandatory-minimum sentences were adopted, pre-crime intervention programs were created, alternatives to jail for non-violent offenders were found, often with wrap-around services to curb crime, and fewer non-violent crimes were considered a felony.

No money was available for such innovations in Florida in 2018. The Parkland shooting and Hurricane Irma recovery sent lawmakers scrambling to pay for new programs in the second-half of the session. They swept trust funds, dipped into state reserves and left little money or time for new initiatives. Legislators needed an extra day to balance the $88.7 billion state budget.

However, one of the proposals, adopted in other states, doesn’t cost any money: increasing the monetary threshold for felony theft.

In 1986, Florida adopted a $300 threshold. When adjusted for inflation, it would be nearly $700 today. But for the men and women who appear in the daily county booking reports for shoplifting and other property crimes, the low Florida threshold is a felony dragnet.

Florida has the lowest threshold in the Southeast; Georgia, Alabama and Mississippi's is set at $1,500. A theft in Texas must be worth $2,500 to be a felony.

“You are labeling a lot of people felons who would have been considered petty thieves when the threshold was originally set,” Sal Nuzzo of the James Madison Institute. “Building a life after being labeled a felon is considerably more difficult than doing so if you have committed a misdemeanor ... You are a felon for life.”

Restoration of rights for felons is an issue that dates back to the Charlie Crist administration and is on the November ballot as a proposed constitutional amendment.

Under the Criminal Punishment Code of 1997, any felony offender can serve time in prison. Among Florida inmates, 52 percent are incarcerated for non-violent offenses. About 25 percent of the prison population is there because of non-violent drug offenses, according to an analysis of DOC data by CJI.

Felony threshold drama

Alexander signed on as a co-sponsor to a proposal by Rep. Bryon Donalds, R-Naples, to raise the monetary threshold for a felony to $1,000. It passed the House and served as notice to Brandes that he may have more work to do in the Senate than he thought.

When a series of reform measures, including giving judges flexibility in sentencing, fell by the wayside in the wake of the effort to fund a school safety program, Brandes made a last-minute push to get the House felony bill to the Senate floor.

At the final Appropriations meeting of the session, Brandes amended a bill to employ more electronic monitoring and other prison diversion programs with the House felony bill.

Retailers and their allies objected.

“My concern is we are giving a cost of living raise to criminals. We believe what we need to be doing is helping people not to steal,” said Sen. Aaron Bean, R-Fernandina Beach. “I support reform and giving people second chances, but let’s go ahead and draw the line and say stealing is wrong.”

Brandes, who'd been working for three years to change colleagues' misconceptions and misgivings, had less than two minutes to counter Bean and persuade the committee to send the bill to the floor.

“That is not the case, Senator Bean,” said Brandes argued. “Nothing is saying stealing is correct or it is right. The question is, should you lose your ability to vote for a $300 theft? Should you lose your ability to own a firearm over a $300 theft? Should you be considered a felon on every application for the rest of your life for a $300 theft?"

Brandes, who is more than 6-feet, leaned into his microphone and half-turned to Bean who sat behind him. Then he addressed the full committee and about a dozen spectators in the room.

“Senator, this is a pivotal moment for the Senate. I ask for your support. This is a big issue, not some minor issue we move through quickly. There are thousands upon thousands of people who will be affected by the decision you make right now.”

When he fell silent, 55 seconds remained on the clock.

The committee handed Brandes and the reformers a victory. It approved the measure. But time ran out on the Senate floor and the measure failed.

The reformers are undaunted. Alexander said they are “emboldened” by the House and a Senate committee going on record to raise the felony threshold, and can hardly wait until next session.

“Mandatory minimums, felony threshold, uniform application of sentencing code — this is a fight to the end," he enumerated. "We will not yield.”

Contact James Call at jcall@tallahassee.com.