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Public defenders take issue with punishment task force report

Senior Editor Top Stories

Claim suggested changes won’t end sentencing disparities

Scales of justice-city scapeA task force report on Florida’s Criminal Punishment Code failed to take a broad enough look at the overall criminal justice system and overlooked some important historical information, according to a response from the Florida Public Defenders Association.

The association, which represents 19 of the state’s 20 public defenders, has released its view of the Criminal Punishment Code Task Force’s June report and sent it to Gov. Ron DeSantis, Senate President Wilton Simpson, House Speaker Chris Sprowls, and Attorney General Ashley Moody, who was also chair of the task force.

“We understand the limitations that were placed on the task force in last year’s legislation,” said FPDA President and 10th Circuit Public Defender Rex Dimmig. “They were given the responsibility of reviewing and making recommendations about the criminal justice code. It’s our position what was really needed was more extensive than that.

“We’re dealing with a more than 20-year-old sentencing scheme and the question is really whether or not…the criminal punishment code is still a viable means of determining sentencing.”

(A story on the task force report is here.

The FPDA report itself concluded, “Even if the Legislature adopts the recommendations laid out in the [task force] report, mass incarceration and sentencing disparity (both racial and geographic) will persist in Florida. Indeed, it may increase with the recommendations of the task force. The FPDA recommends that the Legislature adopt more substantial reforms to decrease the size of both the overall prison population and the disparities among prisoners; at the very least, it should support additional studies into racial and geographic disparity in sentencing and the impact of the CPC [Criminal Punishment Code] on Florida’s economy.”

The public defenders said the task force failed to consider the costs of mass incarceration, the problem of racial and geographical disparities in Florida sentencing, and fully consider the history that led up to creating the Criminal Punishment Code in 1998.

The FPDA report said the task force did not address Florida’s high incarceration, which is 20% above the national average in a country that has the highest incarceration rate in the world, according to a 2016 report by the World Prison Population List.

Studies also show that the high incarceration rate does little to protect the public beyond the short-term gain of the incarceration itself and imposes substantial economic and social costs. And those high economic costs will be difficult to sustain because of the state revenue losses caused by the COVID-19 pandemic.

The report said many of the task force recommendations merely shift around points on the sentencing scoring sheets without much impact on overall sentences, and other changes might increase sentences.

“The recommendation to change the number of felony degrees from three to five may very well increase incarceration because, with the exception of fifth degree felonies, the felony degrees all increase the statutory maximum,” the FPDA report said. “Without significant and meaningful change to the CPC, Florida will remain an outlier, both with regards to number of individuals incarcerated and state expenditures on incarceration.”

(The report also recommended raising the number of categories on sentencing scoresheets from 10 to 16.)

The task force report did not address sentencing disparities, including both that Black defendants, according to several studies, are more likely to be sent to prison and receive longer sentences for similar crimes than Whites, and that defendants in the southern and eastern parts of the state tend to get lower sentences for similar crimes than those in the central, western and northern regions, according to the FPDA.

The racial disparity was found in a study by the Sarasota Herald-Tribune in 2017, acknowledged in an opinion from the Fourth District Court of Appeal in 2018, and found in a report by the Project on Accountable Justice that looked at 2015 statistics

“Unfortunately, the task force report does not contain any of this information or acknowledge racial disparity, and thus does not recommend that any ‘necessary protections against actual racial bias in sentencing…be implemented,’” the FPDA report said.

The public defenders also said the task force report failed to compare how sentencing fared under the statutory sentencing guidelines program that began in the 1980s and lasted until it was replaced by the Criminal Punishment Code in 1998.

The guidelines, which stemmed from a 1978 committee appointed by the Florida Supreme Court, worked and by 1997, a Department of Corrections study found that race apparently had no “meaningful” impact on sentencing.

But, the FPDA report said, with the advent of the Criminal Punishment Code in 1998, disparities began “creeping back into Florida sentencing.

“This is because, unlike sentencing guidelines, the CPC provides no upper limit on judges’ sentencing discretion…. Unfortunately, the Task Force Report neither acknowledges the fact that the CPC reintroduced disparity into the Florida sentencing nor the fact that guidelines went a long way toward fixing that problem,” the FPDA report said.

“….Ultimately, sentencing requires delicately balancing the need to limit judicial discretion to reduce disparity while simultaneously providing judges with enough discretion to properly individualize sentences. Unfortunately, the Task Force Report does not appear to appropriately grapple with these competing concerns.”

Finally, the FPDA report faulted the task force report for an incomplete history of how the Criminal Punishment Code came about, and for failing to acknowledge that sentencing guidelines had worked in eliminating sentencing disparities.

The public defenders said the original code was drafted by a state attorney with the goal of increasing prosecutors’ leverage in plea bargain negotiations. That was accomplished by the code continuing to limit downward departures recommended by sentencing scoresheets but removing the upward limit, which allowed prosecutors to begin plea negotiations by offering tougher sentences. The proposal wound up being amended onto legislation that would have abolished sentencing guidelines.

“The drafters admitted that the purpose of the CPC was not to improve Florida sentencing policy, but rather augment the power of prosecutors to coerce guilty pleas,” the FPDA report said.

In its conclusion, the FPDA said the task force recommendations will not address sentencing disparities or over incarceration, and may aggravate both.

“The FPDA recommends that the Legislature commission a new task force with different players and more directed goals. If the Legislature does adopt any of the Task Force’s recommendations, the FPDA recommends that the Legislature also commission a study on the impacts of those new policies on racial and geographic disparity,” the public defenders report concluded.

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