Top Ten Criminal Justice Reform Projects for Florida’s 2022 Legislative Session

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(By J.J. Daiak, Founder of Tough Enough On Crime .com;
(Updated May 1, 2021)

(UPDATE: The 2021 Florida Legislative Session ended yesterday without passing any criminal justice reform bills. Just like in the 2019 and 2020 Sessions, the Republican controlled Senate pushed hard for serious reforms, but the Republican controlled House refused to even consider any reforms. So now it’s time to prepare for the 2022 Session (January 11, 2022 through March 11, 2022) which could be the last year that the same pro-reform Senators are still in office. The focus has to be on convincing the Republican House Leadership to agree that it’s time for serious criminal justice reform in Florida.)

 Quick Summary of my Top Ten Reforms; details follow below

1. Pass a new law to retroactively apply a 65% incentive and/or rehabilitative gaintime policy to all non-lifer prisoners, which will also substantially increase the safety of Correctional Officers in the prisons.

2. All non-lifer prisoners should have the same incentive gaintime percentages.

3. Pass a law to retroactively apply the 2016 amendment to the 10-20-Life law which deleted the crime of Aggravated Assault from the list of crimes subject to a 20-year mandatory minimum prison sentence to the 100 or so prisoners still serving a 20-year mandatory minimum prison (and unable to earn any gaintime) sentence for an aggravated assault.

4. It’s “Time for 12 Jurors” in Florida. Pass a law now to require 12 jurors at all felony trials instead of the current law requiring only 6 jurors, just like (almost) everywhere else in America. The United States Supreme Court is very likely to soon decide that the use of less than 12 jurors at felony trials in Florida violates the United States Constitution, which will require (expensive) retrials of all non-final convictions at trials that only had six jurors, and quite possibly also applying it retroactively which would result in many thousands of retrials (very expensive) in Florida.

5. Pass a new law to retroactively repeal that strange crime degree called a “Felony of the first degree, punishable by imprisonment for a term of years not exceeding life imprisonment. How can a crime be both a first-degree felony (30-years maximum) and a life felony (which is a natural life without parole sentence, lasting until death)?

6. Amend s. 921.0024(2), Fla.Stat. of the Criminal Punishment Code (CPC), which now permits the sentencing judge the unfettered discretion to sentence up to the statutory maximum length sentence and the unfettered discretion to impose consecutive sentences.

7. Amend s. 948.06(2)(b), Fla. Stat, dealing with a revocation of probation, to limit a court from imposing any sentence length which it might have imposed before placing the probationer on probation.

8. It is widely accepted that sentences for certain crimes have gotten too long and too expensive over the last forty years, increasing sentences far above what the sentencing method of the current Criminal Punishment Code (CPC) code score called for.

9. No more “Per Curiam Affirmed” (PCA) throwaway opinions from Florida’s District Courts of Appeals (DCA) in criminal appeals.

10. Each Florida County should have to pay a fair share of prison costs for prisoners sentenced from that County.

        Details and Links of my Top Ten Criminal Justice Reforms Proposals:

1. Pass a new law to retroactively apply a 65% incentive and/or rehabilitative gaintime policy to all non-life prisoners. This will increase the safety of the Correctional Officers in the Florida Department of Corrections (FDOC) by maximizing good behavior by all non-life prisoners (whether convicted of violent or non-violent crimes), drop the prison population by up to 25,000 prisoners (and so reduce the prisoner to Correctional Officer ratio from the current 8 to 1 to the more desirable 6 to 1), and save many hundreds of millions of dollars a year in prison costs – all within one year. This is by far the single most powerful criminal justice reform that can be done during the 2021 Session. For details, see my analysis of “How 65% Gaintime in Florida Would Both Improve Correctional Officers’ Safety and Quickly Shrink the Prison Population Significantly.”

2. All non-lifer prisoners should have the same incentive gaintime percentages. Currently, a significant number of prisoners are unable to earn any gaintime at all (mostly those convicted under the 10-20-Life or the Prison Releasee Reoffender (PRR) sentence enhancement laws.) These prisoners now have zero incentive to be on their good behavior and follow the FDOC rules, which reduces the safety of Correctional Officers. Furthermore, any gaintime laws that require (non-lifer) prisoners to have different percentages of gaintime incentives (85% or 100% or 65%) causes deep resentment and problems between prisoners. Regardless of the crime committed, the main purpose of allowing prisoners to earn gaintime is to motivate them to behave well and to follow the FDOC Rules and so increase the safety of the Correctional Officers.

3. Pass a law to retroactively apply the 2016 amendment to the 10-20-Life law which deleted the crime of Aggravated Assault from the list of crimes subject to a 20-year mandatory minimum prison sentence to the 100 or so prisoners still serving a 20-year mandatory minimum prison (and unable to earn any gaintime) sentence for an aggravated assault. Without 10-20-Life, an aggravated assault has a maximum sentence of up to 5-years, an appropriate sentence for a crime which by definition in Florida, unlike in other states and in TV shows, is only a threat to do violence, not any actual violence. Not one victim of aggravated assault in Florida has ever been physically hurt, nary ever needing even a single Band-Aid. Typically, a 20-year mandatory minimum sentence for an aggravated assault involved a warning shot fired in self-defense where no one was hurt. (And as part of this reform, remove Aggravated Assault from its inclusion in various enhancement statutes, including the Habitual Violent Felony Offender law, which requires severely long sentences for any new felony, violent or not, committed within five years of release from prison for someone whose only previous felony was an aggravated assault.)

4. It’s “Time for 12 Jurors” in Florida. Pass a law to require 12 jurors at all felony trials just like (almost) everywhere else in America. It is statistically impossible to seat racially diverse juries when there are only six seats in a jury box, a dangerously unjust game of musical chairs. It is not soft on crime to require Florida prosecutors to prove their charges to 12 jurors at trial as prosecutors in all the other states and Federal courts do every day. The “presumption of innocence,” that long golden thread stitching together centuries of English and American jurisprudence, is dangerously frayed in Florida where the State only has to overcome the presumption of innocence before six jurors. See my full discussion at “Time for 12 Jurors.”

(Very Important Update: Time For 12 Jurors in Florida is suddenly a logical extension of the United States Supreme Court’s decision in Ramos v Louisiana, 140 S.Ct. 1390 (2020); 18-5924 (April 20, 2020), which held that it was unconstitutional to have non-unanimous juries in felony trials. It was some 50 years ago that the USSC held that neither the Federal requirement of 12 jurors nor unanimous juries in felony trials applied to the States. But with Ramos now requiring unanimous jurors at all State level felony trials, that same legal reasoning in Ramos should also now apply to requiring 12 jurors at all Florida felony jury trials. As Justice Alito said in Ramos in dissent, “Repudiating the reasoning of Apodaca will almost certainly prompt calls to overrule Williams.” (Williams v Florida, 399 US 78 (1970) was the case that decided that the U.S. Constitution did not require 12 jurors in all Florid felony trials).

Hopefully, the Florida Legislature in the 2022 Session will finally see the Ramos opinion/order now engraved on the USSC’s Courthouse wall and so now pass a Florida law to require 12 jurors at all felony trials before the USSC overrules Williams and orders Florida to do so and requires new trials for all current, non-final cases where the conviction was by only six jurors in Florida.  (UPDATE: On May 17, 2017, the United States Supreme Court decided that Ramos does not apply retroactively: see Edwards v. Vannoy, No. 19-5807, May 17, 2021: “HELD: Ramos announced a new rule of criminal procedure. It does not apply retroactively on federal collateral review.”)

5. Pass a new law to retroactively repeal that strange crime degree called a “felony of the first degree, punishable by imprisonment for a term of years not exceeding life imprisonment,” commonly called “1st/PBL,” or just “PBL” (Punishable By Life). How can any crime be both a first-degree felony and a life felony? The PBL degree was created in 1971, a perverse, inbred cross between a first-degree felony (punishable by up to 30 years in prison) and a life sentence. But when the PBL degree was created in 1971, a life sentence always included the possibility of parole, while since 1995 all life sentences are natural life sentences without any possibility of parole. There are at least nine crimes in Florida, including robbery and burglary, that still include this antiquated crime degree of PBL and so allows (or requires if a defendant is subject to the Prisoner Releasee Reoffender law) a life without parole sentence.

The primary policy concern with the possibility or requirement of a life sentence for robbers or burglars is that it strongly and wrongly motivates the robber or burglar to murder the victim in order to eliminate the witness and get away with the crimewhy not, since it would be the same life sentence anyway? A life sentence should be reserved for murderers, not for the some 3,000 robbers and burglars who are serving a life without parole sentence in Florida as of January 1, 2021. See more here.

6. Amend s. 921.0024(2), Fla.Stat. of the Criminal Punishment Code (CPC), which now permits the sentencing judge the unfettered discretion to sentence up to the statutory maximum length sentence, to either (1) require the court to make written findings why such a sentence is necessary; or (2) establish a range of allowable sentence length based on the CPC Scoresheet code score, such as 50% below or 50% above the code score’s lowest permissible sentence. For example, if such a code score was 60 months for a second-degree felony, the permissible sentence range should be from 30 to 90 months, not the current 60 months to 180 months. Similarly, amend s. 921.0024(2), Fla. Stat. of the CPC, which now allows a judge the unfettered discretion to impose sentences for additional offenses either concurrently or consecutively, to require the judge to make written findings as to why consecutive sentences are deemed necessary and why the added prison costs of consecutive sentences should be paid by the State, rather than by the County of sentencing.

7. Amend s. 948.06(2)(b), Fla. Stat, dealing with a revocation of probation, to limit a court from using its current unfettered discretion to resentence any probation violator to any sentence length which it might have originally imposed before placing the probationer on probation. Currently, this creates a dangerous trap for too many defendants. For example, if someone charged with a second-degree felony and whose CPC score required a minimum 3-year sentence accepted an offer of probation instead of prison, and then violated probation and had it revoked, that court could resentence that person without a trial to the 15-year statutory maximum sentence, far above a reasonable sentence for the crime committed.

8. It is widely accepted that sentences for certain crimes have gotten too long and too expensive over the last forty years, increasing sentences far above what the sentencing method of the current Criminal Punishment Code (CPC) code score called for. This is primarily due to the mandatory minimum sentence statutes such as the 10-20-Life and the Prisoner Releasee Reoffender (PRR) laws and the so-called enhancement statutes which reclassify and increase the degree and punishment of a crime (such as using a deadly weapon during a crime and the Habitual Felony Offender law) that were enacted over 20 years ago. By now repealing those statutes and applying them retroactively to prisoners previously sentenced, sentences could be reduced to what the proper sentence would have been at the time of sentencing.

9. No more “Per Curiam Affirmed” (PCA) throwaway opinions from Florida’s District Courts of Appeals (DCA) in criminal appeals. With a PCA, neither the prisoner nor his appellate lawyer will ever know if the DCA even read the appellate briefs, much less reached the merits of the appeal. After the State pays for preparing the trial transcripts and case records, pays for the defense and State appellate attorneys to write the appellate briefs, and pays for the cost of prison, the DCA judges should at least be required to write a real opinion on the merits of each case, as other states require appellate judges to do. With PCAs, no one except the employees of the District Courts of Appeal in Florida know if any appellate judge even read the Briefs, much less analyzed them. For all the public knows, appellate briefs just pile up on a judge’s law clerk’s desk unread until they are rubber-stamped “Per Curiam Affirmed” (PCA) so they can get out of the office and still make happy-hour on free taco night at the local watering hole. An appellate judge who will not bother to write a detailed decision in every felony case appeal is in the wrong job. There are plenty of potential appellate judges who would love to write appellate opinions in every felony appeal. After all, less than 2% of felony defendants in Florida go on to have a jury trial. For more, see here.

10. Each Florida County should have to pay a fair share of prison costs for prisoners sentenced from that county. Locally elected Circuit Court judges and State Attorneys have an incentive to maximize prison sentences (and not so coincidentally, get local troublemakers out of their county) when the prison costs are paid for by the residents of the other 66 counties in Florida, every time they pay a sales-tax. (Florida prison costs are largely funded by Florida’s sales-taxes; about $.50 out of the $6 sales tax on any $100 purchase goes to funding the Florida’s prison.)

At a minimum, a new law should require that whenever a judge uses his/her unlimited discretion to sentence someone to serve consecutive sentences, or to exceed the CPC scoresheet sentence to the statutory maximum sentence, the county of sentencing should be required to pay FDOC for all prison costs incurred for the consecutive part of the sentence or the part that exceeds the CPC sentence length. Furthermore, all sentencing documents should also include an estimated prison cost to taxpayers for that sentence and be signed by both the judge and by the prosecutor to show that they are aware of the cost of each prison sentence to the taxpayers of Florida.

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