The Florida Bar

Florida Bar News

January 1, 2021 Letters


Criminal Justice Reform

Criminal justice reform is taking place across America. The “three strike,” and “10-20-life” “tough on crime” policies of the 1990s produced a mass incarceration problem taxpayers can no longer shoulder.

Florida’s Office of Program Policy and Government Accountability (OPPAGA) estimated, “the per diem of all Florida Department of Corrections institutions was $59.57 for fiscal year 2017-2018 which converts to $21,743.05 per prisoner per year.” This figure covers costs for prison operations, inmate health, education, and substance abuse.

According to the Office of Justice Programs of the U.S. Department of Justice, as of 2019, the states with the top 10 incarceration rates per 100,000 of its citizens are as follows:

1. Texas – 158,429

2. California – 122,687

3. Florida – 96,009

4. Georgia – 54,816

5. Ohio – 50,338

6. Pennsylvania – 45,702

7. New York – 43,500

8. Arizona – 42,441

9. Illinois – 38,259

10. Michigan – 38,053

According to a 2014 study of the National Research Council of the National Academies, The Growth of Incarceration in the United States, these high rates of imprisonment are what solidifies the USA as the leading nation in incarcerations per 100,000 people. Accordingly, many states are adopting novel laws specifically designed to reduce incarceration rates over time by eliminating minimum-mandatories, sentence enhancements, and legalizing marijuana. During the November 2020 election cycle, Oregon became the first state in the nation to decriminalize all drugs in certain quantities. While these new laws should incrementally reduce incarceration rates over time, they absolutely fail to reduce present incarceration rates that exist due to past sentencing policies and practices.

However, the Washington State Legislature recently passed a “Felony Resentencing — Prosecutorial Discretion” bill into law. This 2020 law provides prosecutors with the discretion to petition the court to resentence an individual if the person’s sentence no longer advances the interests of justice. The bill acknowledges the purpose of sentencing is to advance public safety through punishment, rehabilitation, and restorative justice. When a sentence includes incarceration, this purpose is best served by terms that are proportionate to the seriousness of the offense and provide uniformity with the sentence of offenders committing the same offense under similar circumstances. By providing a means to reevaluate a sentence after some time has passed, the Legislature intends to provide the prosecutor and the court with another tool to ensure that these purposes are achieved.

Unlike most post-conviction relief measures, this law gives prosecutors the discretion to seek relief from the court or not, which basically means they don’t have to worry about a flurry of new cases that can cause a backlog of work.

As a 35-year trial attorney, there’s absolutely no doubt that Florida needs this law on the books as soon as possible.



The article that triggered the ire of my colleague from Pensacola I do not recall, but the perils of “growing up” in the practice of law I do recall. They can be taxing.

Today, I’m an old bloke pushing 40 years in our business, but I surely remember and empathize with the lady-lawyer young and aspiring for professional credibility.

A true story: fresh, 24-year-old, wet-behind-the-ears upstart at the Pinellas State Attorney’s Office I was in year 1983. Flummoxed I was also that about half of my misdemeanor jury trials would result in acquittals. I’d ask the judge, the clerk, the bailiff, the court reporter, even the old “courtroom watchers” who strolled the hallways: “what am I doing wrong? And then one day, out of the blue, my favorite bailiff walks up to me, says, “Got a minute?”

“Absolutely. Thank You!”

Bailiff: “Well, I’m probably not supposed to tell you this, but…I was standing outside the jury room of your trial last week. They were laughing out loud how young you look. They said you belonged in high school. I don’t think the jury takes you seriously. You look and sound so different from the old defense lawyers. Ever thought of growing a moustache, or a beard,…or something?”

“No. Not until now.”

That concludes my story and know too the moustache looked ragged and foolish at the start. Horrid actually. But it did draw to a close the not guilty jury verdicts for my remaining tenure at the state attorney’s office.

So to my young colleagues whom I greatly admire, remember human judgment sometimes does not change with the times. First impressions matter. How you look and sound and dress will make a difference; it surely did for me. Good Luck!

St. Petersburg

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