By Gary Blankenship
In 2011, Jacksonville attorney A. Wellington Barlow represented a college-bound client — who had no criminal record — in a criminal case. Although he thought his client was innocent, the jury disagreed and the judge imposed a 15-year sentence, the prison term sought by the prosecution and the maximum allowed under sentencing guidelines.
At about the same time in a nearby courtroom under a different judge, another defendant with a similarly clean record was convicted of the same charge. He was sentenced to eight years.
Then last December, the Sarasota Herald-Tribune began publishing a series of articles about the longer sentences African-American defendants received in Florida, including a conclusion that many judges were showing bias on the bench. That produced a rejoinder from 12th Circuit Chief Judge Charles E. Williams, who acknowledged disparate sentences but noted the articles failed to take into account the effects of plea bargaining, among other factors. (See Letters to the Editor in the June 15 Bar News.)
The articles also produced a strong reaction in Barlow. He had just written the book, Guilty Until Proven Innocent: The Letter vs. the Spirit of the Law, which “covers some specific cases over my 30 years [in practice], some of which had people who were innocent but they were being prosecuted.”
The newspaper series made him decide it was time to do more, because “what the Herald-Tribune did is they statistically proved, which many of us thought for years, that minorities are being mistreated in the criminal justice system,” he said.
Barlow produced a position paper that he distributed, including to Sen. Audrey Gibson, D-Jacksonville, who introduced a bill earlier this year to have the Office of Program Policy Analysis and Government Accountability study sentencing data in Florida for each county and circuit judge in criminal and juvenile cases. SB 382 had a hearing in the Senate Criminal Justice Committee, but was tabled on February 27 and never taken up again. A similar measure in the House was not heard in committee.
Barlow thought more could be done; specifically, “there should be a way for us to use prior history to determine whether a sentence is going to be fair, similar to what prior offenders have received. You do not have the tools to objectively look back.”
He sat down with Chris Parker and Buster Bragg, a computer/data specialist. Both are nonlawyers interested in impartial justice free from “race, class, gender, or any other factor.” The result was the Equity in Sentencing Analysis System (ESAS). (A YouTube video of Barlow discussing sentencing and ESAS at a recent community meeting organized by Gibson can be found at https://www.youtube.com/watch?v=dbv72eAX6Wc&feature=youtu.be.)
“The primary inspiration and purpose for the development of the Equity in Sentencing Analysis System (ESAS) is to foster justice by comparing and contrasting cases and thereby bringing true uniformity in sentencing the criminally accused,” Barlow said. “ESAS will allow prosecutors, public defenders, private attorneys, and judges to formulate fair sentences in pending cases via comparing and contrasting past sentences of defendants who are similarly situated with current defendants in terms of substantive crime(s), Criminal Score Sheet(s) (guideline) points, victim impact, if applicable.”
The information was already on hand for ESAS to work, he said.
“The only thing we did is we took existing data of existing cases and we formatted it,” Barlow said. “All that information already exists, but it’s in a hodgepodge so you cannot use it. We reformatted it in a way so you can use it.”
While ESAS, which so far has only data from the Fourth Circuit, has not been used on any actual cases, “We have run searches specifically trying to discover whether there were vastly different sentences for similarly situated criminal defendants,” he said. “These searches looked at specific offenses, Criminal Penalty Code Score/Points, past criminal history, actual sentences, presiding judges, defendants’ race, whether the sentences were pursuant to a guilty verdict by a jury or via plea bargain. We have found similarly situated cases/defendants that resulted in vastly different sentences.”
That can be the result, Barlow said, of inexperienced judges who are new to criminal law and may give more weight to sentencing recommendations from prosecutors.
“My client received 15 years from a judge who had never practiced criminal law before he was on the bench, and he had been on the bench for two years,” he said. By contrast, the judge who imposed the eight-year sentence on the other defendant was a veteran criminal court judge.
A secondary outcome is the program can be used to looked at the question, raised in the Herald-Tribune series, of whether there are racial or other biases in sentencing.
“If any non-uniformity exists, the same can be revealed by the click of a few buttons,” Barlow said. “Whether the [non-uniformity] is based upon race or other factors are judgment calls. What’s most important is having a practical tool that will allow disparate treatment to be identified, rectified, and prevented from continuing to take place in violation of the precious constitutional due process and equal protection rights.”
There is interest in ESAS. Barlow has made a presentation to the local public defender and state attorney officials.
“It’s very interesting, the program he’s got,” said Fourth Circuit Chief Assistant State Attorney Mac Heavener.
While his office isn’t making a commitment to this or other programs that seek to measure sentencing, Heavener added, “It’s a very good idea. We simply have to spend more time understanding how we’re doing what we’re doing and making sure it’s the best fit for what we want to accomplish.
“Similarly situated defendants should be treated similarly, which takes into account not only the crime but the person’s record. That’s where you really have to spend time understanding what similar means, making sure they’re really comparing apples to apples and not apples to oranges.”
Chief Judge Williams of the 12th Circuit said he sees value in Barlow’s approach. He noted he can’t as a judge endorse any particular product, but he said he favors anything that helps provide more information about sentencing in the justice system and the role played by all the participants.
“The issue with us has never been whether the criminal justice systems shows bias. Every treatise and study shows that a disproportionate number of African-Americans are sentenced,” Williams said. He said the Herald-Tribune series didn’t go far enough in collecting and analyzing data, something that could be helped by ESAS or a similar program, which “allows looking at cases themselves. . . .
“The big mistake is that somehow the judiciary is saying we’re not to blame. We’re not saying that. We’re saying there are myriad factors you have to look at. The articles seemed to focus solely on the judiciary.”
The Washington, D.C.-based Sentencing Project collects incarceration statistics nationwide. The numbers for Florida are sobering.
Executive Director Marc Mauer said 1.6 million Floridians have been convicted of felonies, and 1.4 million have completed their prison sentences and/or probation. Of the 1.6 million, 499,000 are African-Americans (more than 31 percent of the total) and 418,000 of the 1.4 million (about 30 percent) have completed their sentences or probation.
That compares to an overall African-American population of 17 percent in the state, and 15 percent of the adult population.
Looked at another way, Mauer said African-Americans are incarcerated at a rate of 1,621 per 100,000 population, while for whites the rate is 448. It also bleeds over into civic life, as most felons have not had their voting and other civil rights restored. Overall, 10 percent of the voting age population in Florida is ineligible to vote, he said, while for African-Americans the rate is 21 percent.
“These are broad numbers,” Mauer said of the incarceration rate. “There are many factors that go into that. People would say maybe there’s a greater involvement in crime; that’s a chunk of it. But decisions in the criminal justice system — from who to arrest to who to sentence — play a part. In many cases, it’s a question of implicit bias; it’s a question of socio-economic disadvantage. There’s a number of factors coming together to produce the disparities that we see.”
Interestingly, some Northern states have a greater proportion of black to white inmates, he said. That’s because those states have a lower overall incarceration rate, but tend to lock up a higher percentage of African-Americans in their prisons.
“In Southern states, there are a lot of black offenders locked up, but also a large number of white offenders,” he said.
Where Florida does stand out is in denying voting rights to felons. “Florida is by far the most extreme state in the union in terms of the number of people affected by it,” Mauer said.
Sen. Gibson said her bill, which she plans to reintroduce for the 2018 legislation session, was an attempt to get more details on raw sentencing numbers. She said her bill was prompted by the Herald-Tribune articles, although she added, “It’s not the first time any of us have heard about disparate sentencing and the wide gaps in who gets arrested.”
Gibson said she has talked with Barlow about ESAS, but has not seen his presentation.
“His premise goes to something I talked to another judge about and that is having real-time information for the sentencing judge in the courtroom,” she said. “It was a study. It doesn’t cost us anything to look at history so we can figure out what we need to do going forward so we don’t have egregious, disparate sentencing.”
The bill ordered OPPAGA to assemble sentencing information for each county and circuit court judge going back five years in criminal and juvenile cases, including the judge who presided over the trial, and, if it was a different judge, over the sentencing; where the case was heard; the offense for which the defendant was convicted or pled guilty; the range of potential punishments for those offenses; and the actual sentence.
Demographic information to be collected included age, sex, race, income, and prior criminal history.
OPPAGA would be required to submit its findings to the governor, the Senate president, the speaker of the House, the Supreme Court chief justice, the majority and minority leaders of each legislative chamber, and provide annual updates.
It also specified that, “Evidence of disparity in sentencing by a judge with regard to any demographic group is grounds for disqualification of that judge from any case involving a member of that demographic group, pursuant to [F.S. §] 38.10.”
For Barlow, ESAS or something like it is an obvious need.
“We just did it for the Fourth Circuit as a demo. We’re advocating that laws be put on the books so it could be uniform throughout the state,” he said. “What this system does is it eliminates any type of excuse. We can hit a button and look at all of the trials and everyone who was sentenced pursuant to guilty verdicts or guilty pleas.”