May 1, 2021 Letters
“You shall not pervert justice; you shall not show partiality….” (Deuteronomy 24:17)
The Fairest of Them All Equal Justice Awards provide a scientific basis to objectively evaluate felony court judges in Florida’s 20 judicial circuits with respect to impartiality and overall fairness in criminal sentencing.
Judicial polling from bar associations can be subjective at best and somewhat biased at the worst. Moreover, bar association polls are only completed by a fraction of practicing attorneys in each respective jurisdiction. It is not uncommon for bar poll participation rates to be from 5% on the low end to an absolute maximum of approximately 20% on the high side. Some participants rate all judges which should not be done unless the attorneys in fact routinely practice before them all, which is exceptionally rare. On the other hand, most practitioners who participate fail to complete all questions for the judges they rate. Such low and varied participation rates can effectively render bar association surveys relatively useless to objectively and, therefore, fairly evaluate judges’ actual performance. Judges complain that attorneys who irregularly appear in their courtrooms, if at all, grade them on the low side, which can invite unjustified electoral challenges. The same can be said for a few attorneys who vehemently disagree when judges rule against their clients.
The common issues with bar polls and studies from media outlets is they fail to objectively highlight positive findings. As in everyday society, bad news sells much better and travels twice as fast as good news. Such negative outcomes from internal judicial polling and/or external evaluations are by no means fair to the judges who are being equitable and therefore non-disparate in their sentences, yet seldom, if ever, receive positive recognition for the same.
In fact, a 2020 poll in one judicial circuit rated a judge dead last with respect to “impartiality,” yet raw Criminal Punishment Code (CPC) scoresheet data statistically, scientifically, and, therefore, conclusively demonstrates this judge to be “The Fairest of Them All” in that particular judicial circuit with respect to equitable sentencing. It is for these reasons The Fairest of Them All Equal Justice Awards were conceived. The general public should be adequately informed of high performing judges so they can be retained in office to continue such excellent service. The best means by which to gauge equitable sentencing is by objectively examining case disposition data from contested sentencing hearings and pursuant to open pleas to the court and after lost trials. Unfortunately, well over 90% of all criminal cases are disposed via plea-bargaining, so this data was used as will be further explained. Case disposition data is objective because it consists of judges’ actual performance, which can be objectively evaluated by examining sentencing data rather than the subjective opinions of attorneys many, of whom irregularly appear before such judges.
Accordingly, the inaugural Fairest of Them All Equal Justice Awards are being presented to the top three judges in each of Florida’s 20 judicial circuits whose sentences are statistically proven to be the most equitable. The legal profession and the general public should celebrate judges who are statistically proven to impose the most equitable sentences in each respective jurisdiction.
Please visit https://tinyurl.com/3rtxnnvy/ to review the scientific procedures that were deployed and the final results.
I have noticed over the years in the Disciplinary Actions column of the News a tendency for the editor of that section to split infinitives when explaining certain disciplinary actions.
In April’s News alone, I counted six separate instances in which infinitives were split. One attorney “failed to properly supervise his associate,” another “failed to timely respond to discovery requests,” another “failed to diligently represent three clients” and “failed to reasonably communicate with the clients,” another was disciplined for “failing to timely withdraw from his representation of the company despite his knowledge of its illegal activity,” and, finally, yet another was disciplined as he “failed to competently and timely pursue the client’s family law matter.”
I know attorneys can legally split fees. However, we should not be splitting infinitives.
Attorneys should not be told to boldly go where no attorney has gone before, even if The Florida Bar News goes there!
The April issue of the News reports about the recent member’s survey by The Florida Bar. It starts with the comment that the survey shows what “[a] vast majority of Florida lawyers think…” about details regarding the COVID-19 pandemic. Careful reading of the article reflects this stated conclusion came from opinions given by a very limited number of Florida lawyers, hardly a “vast number” of Florida lawyers.
The Bar’s website states that of the nearly 110,000 Bar members, only about 91,000 are members in good standing eligible to practice law. The request to respond to the survey was sent only to 3,758 randomly selected members. Of these, only 34% (about 1,278) elected to complete the survey that came from The Florida Bar. The survey was long and complicated and often requested or allowed written explanations or comments. The 128-page report available on the Bar’s website is very interesting and revealing. Thirty percent of the responders were sole practitioners without any associates or partners. Of those employed as lawyers, 20% were co-employees with more than 20 other lawyers (maybe including up to 2,200 other co-employees).
The suggestion, therefore, that “[a] vast majority of Florida lawyers think” anything about any debatable issue is at best “misleading” if not “totally unsupportable by the survey.” It may lead others to reject reasonable findings of the survey or, unfortunately, the entire survey itself. Even The Florida Bar, as a representative of The Florida Supreme Court and even lawyers as a whole may be adversely harmed. Many see the News as representing all.
Back to Court, When?
I am writing in response to Mr. Zinzow’s April letter “Back to Court, Now.” I couldn’t agree and disagree more.
All agree it is imperative to reopen the courts for purposes of administering justice. Chief Justice Charles Canady has repeatedly indicated the same and in that regard has been proactive, deliberate, and sensitive in protecting all stakeholders, i.e., the public, court administration, judiciary and advocates.
The science should always take precedence in making these decisions. I disagree, however, with the analogy. While the writer acknowledges and uses for comparison purposes the “state is open for business,” he disregards the fundamental and critical distinction. Anyone can choose to avoid walking into a grocery store (order online); a hardware store (Amazon delivers); a restaurant (Uber Eats will bring you a meal); or a theme park (virtual tours and interactive engagement). But, whenever one is summoned to appear with ramifications that include criminal contempt whether jury service or witness subpoenas, Chief Justice Canady, and the chief judges must be guided by the recommendations of the health professionals. There is no one that wants the courts back open more than the chief justice, but he has been careful, diligent, and studious with respect to the recommendations he has made through administrative orders of the Supreme Court. He does so because of that burden he has to safeguard and protect all who work and appear in the courthouses across Florida.
Criminal Justice Reform?
I respond to a letter submitted by A. Wellington Barlow published in the January News. Mr. Barlow comments on criminal justice reform, particularly what he calls the “tough on crime” policies of the 1990s, which he believes “produced a mass incarceration problem taxpayers can no longer shoulder.” Mr. Barlow cites incarceration rates per 100,000, with Florida being the third highest, behind only Texas and California.
Then, he argues that a few states, such as Oregon and Washington, have begun to adopt “novel laws” designed to reduce incarceration rates. These laws allow decriminalization of certain offenses and a method to “re-evaluate” some sentences that, in the opinion of some, were too harsh (caused by among other things mandatory minimum sentences). All of this is supposed to “enhance public safety through [appropriate] punishment, rehabilitation and restorative justice.”
What the author does not address about the 1990s “tough on crime” policies, is that those policies actually worked if, by the term “worked,” one means reduced crime. FBI Uniform Crime Statistics demonstrate that beginning in the early 1990s, when the “tough on crime” policies began, violent crime was substantially reduced. Annual homicides went from a high of 23,415 in 1993, to 14,534 in 2002. All violent crime went from 757 per 100,000 in 1992, to 494 per 100,000 in 2002.
Whatever the supposed benefits of reducing “mass incarceration,” we ought not forget the tens of thousands of individuals whose lives were saved during just this one decade of “tough on crime” policies.