(By J.J. Daiak, Founder of Tough Enough On Crime .com.)
(UPDATE, May 1, 2021: 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, 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, starting with showing them that 65% gainime will substantially increase the Officer Safety of Florida’s Correctional Officers.)
- 65% Gaintime Is Much Better Than 85% Gaintime for the Safety of FDOC Correctional Officers, as 65% Gaintime is a Much Better Incentive for Prisoners to Follow the Rules and to Behave Well.
- All Non-Life Sentenced Prisoners Should be Able to Earn 65% Gaintime.
- 65% Gaintime Could Reduce the Prison Population by as Many as 27,000 Prisoners and so Save Hundreds of Millions of Dollars in Prison Costs — Within the First Year.
- The Retroactive Change to 65% Gaintime Will Not Require any Added Court Labor; the Changes in the Release Dates Will be Calculated by the Florida Department of Corrections.
- 85% Gaintime Was Just a Number Enacted in 1995 to Obtain Some Federal Grants from 1996-2001, but It Increased Prison Time-Served Length and Prison Costs by 30% Ever Since.
Florida’s current gaintime law, s. 944.275(4)(f), Florida Statutes (2020), now requires that all prisoners (other than those with life sentences, who cannot earn gaintime, or some non-life sentences for crimes that are now ineligible for any gaintime) serve a minimum of 85% of the length of the sentence imposed upon them in court. (This is commonly called “85% gaintime.”) It is now time to end that 85% gaintime failed experiment by simply amending s. 944.275 (4)(f) in three places by changing “85” percent to “65” percent so that all prisoners must serve at least 65% of their sentence. (And note also that to make 65% gaintime workable, prisoners must be able to earn 20-days a month of incentive (and/or “rehabilitative”) gaintime, so s. 944.275 (4)(b)(3) must also be amended to increase the gaintime earnable from the current 10-days per month to 20-days per month.) By making the 65% gaintime retroactive to all current non-life prisoners, as Amendment 11 now allows this Florida Legislature to do, Florida’s current prison population of about 96,000 prisoners would be reduced by 18,000 to 27,000 prisoners – within one year.
65% Gaintime Is Much Better Than 85% Gaintime for the Safety of FDOC Correctional Officers, as 65% Gaintime is a Much Better Incentive for Prisoners to Follow the Rules and to Behave Well
The foremost reason for ending the 85% gaintime experiment and allowing 65% gaintime for all well-behaved prisoners who follow the Florida Department of Corrections (FDOC) rules and obey the orders of Correctional Officers is for the increased safety of Correctional Officers in the prison dorms and cell-blocks. FDOC front-line Correctional Officers have a very difficult job as they are unarmed while in constant personal contact with prisoners, usually within an open dorm which is one big room where 60 to 150 convicted felons live and sleep. (Typically, only prisoners with life sentences are housed in two-man lockable cells.) The best “weapon” a Correctional Officer can carry with him or her to control prisoner behavior is having the ability to threaten to or to actually take away earned incentive gaintime to the extent it actually increases the time that the prisoner will have to serve. At 85% gaintime, prisoners can and do laugh at a loss of gaintime for bad behavior because they know that they can easily earn it all back and still leave at 85% of their sentence. But at 65%, almost every month of gaintime lost for bad behavior will lengthen the time actually served in prison on a day-for-day basis.
At the current 85% cap under the current 10-days a month incentive gaintime law, prisoners max out their usable gaintime at 45% of their sentence length, and then can coast, run wild, the rest of the way while earning zero gaintime and still exit at 85% of their sentence. (Or more likely, they could run wild for the first 40% of their sentence earning no gaintime at all, then tighten up and act right and still get out at 85% of their sentence.) But at 65% gaintime with 20-days/month of earnable gaintime, prisoners do not max out usable gaintime until 53% of their sentence length, so close to the new 65% cap that they just cannot afford to lose much gaintime for bad behavior if they really want to get out at 65% of their sentence. (See APPENDIX A for a spreadsheet showing these gaintime calculations.)
Moreover, if a new 65% gaintime law excludes those prisoners with violent crime convictions who can earn gaintime by keeping them at 85% gaintime (but now with 20-days/month of earnable gaintime), they would max out their usable gaintime at only the first 23% of their sentence, leaving them able to run wild the next 62% of their sentence and still get out at 85% of their sentence. Such a situation would be worse than the current situation as far as Correctional Officers’ safety and motivating these prisoners to follow the rules of FDOC.
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For a concrete example of how 65% gaintime will better motivate prisoners to show good behavior than at 85%, consider a small but typical situation in prison:
Say that a Correctional Officer (CO) tells a prisoner that it’s time to make up his bed and the prisoner refuses to do so. The CO can tell the prisoner that if he does not do so right away, he will lose all his gaintime (GT) (10 days) for the month. For most prisoners, that’s an empty threat because at 85% GT prisoners know that they will max out their earned GT at 45% of their sentence and can do 40% of their sentence without earning any more GT and still get out at 85% of their sentence, so it does not matter if he does not earn GT for that month for refusing to make his bed up when told to do so.
But in a 65% GT world, where prisoners can earn 20 days a month of “rehabilitative credits,” that prisoner’s refusal to make his bed up on time could easily extend his prison tour by 20 days. And for most prisoners, doing an extra 20 days in prison is too high a price for not making his bed up when a CO tells him to do so. So he obeys the CO and makes up his bed then and there, and will probably get in the habit of doing so on time every day.
(Of course the CO, instead of just taking away some GT from a prisoner for not following the order to make up his bed, always has the option to just escalate the situation and say “Cuff Up,” handcuff the prisoner, and send him off to Confinement, the Box, for at least 30 days for disobeying a direct order. But that involves a lot of paperwork and packing up all the prisoner’s belongings to place in storage, so “Cuff Up!” is usually reserved for more serious Rule violations — but if that prisoner still refuses to make up his bed, he will go to the Box.
(A more typical way that COs handle prisoners who don’t make their beds up before they go to breakfast is that the COs will go through the prison dorm while the prisoners are out at breakfast and toss any unmade beds on the floor, thin mattress and sheets and all. Not a great sight to see for the prisoner when he comes back from the chow hall.)
All Non-Life Sentenced Prisoners Should be Able to Earn 65% Gaintime
Some 15-20% of Florida’s non-life sentenced prisoners currently can earn no incentive gaintime at all because of provisions in laws such as 10-20-Life, s. 775.087(2), and the Prison Releasee Reoffender (PRR), s. 775.082(9), Florida Statutes (2020). This inability to earn incentive gaintime like most other prisoners directly increases the danger to the front-line FDOC Correctional Officers that must interact constantly with these prisoners. A prisoner who cannot earn any incentive gaintime has zero motivation to follow the rules and behave well. Why should he respect the FDOC Correctional Officers and follow the rules if his or her served time is fixed at 100% of his sentence? The worst that can happen is he or she will go to the Box for a month of confinement, something some prisoners prefer to living in an open dorm.
It is a simple Correctional Officer safety requirement that all non-life prisoners must be able to earn incentive gaintime for good behavior. It may have been election-wise twenty years ago to enact laws denying earnable gaintime for certain crimes, but it is a very foolish policy once in prison and directly endangers the safety of Correctional Officers
And of course, to maximize the safety of Correctional Officers by motivating good behavior by prisoners, it is exactly those prisoners with violent crime convictions who most need a chance to earn 65% gaintime (and so would also require the Legislature to amend that part of 10-20-Life, PRR, and a few other laws that now forbid earning any gaintime through current language such as “ . . . and the defendant is not eligible for statutory gaintime under s. 944.275”), so that all non-lifers are equally motivated to behave well in prison so they can go home as soon as possible.
It makes no sense at all as far as the safety of Correctional Officers is concerned to have prisoners with violent crime convictions earning less incentive gaintime than non-violent crime prisoners: which group of prisoners is potentially more of a danger to Correctional Officers?
Neither does it make much sense to somehow simply believe that it is a better policy choice for non-lifer prisoners with convictions for violent crimes to have to serve a longer percentage of their prison sentence than those convicted of non-violent crimes, because convictions for violent crimes usually have longer sentences than convictions for non-violent crimes. So if one prisoner has a five-year sentence for a non-violent crime, and another prisoner has a ten-year sentence, twice as long, for a violent crime, and both get 65% gaintime, the prisoner with a violent crime conviction will still actually serve twice as much prison time (6.5 years) as the prisoner with the non-violent crime (3.25 years).
In order to help successfully pass a law in the upcoming 2020 Legislative Session to require 65% retroactive gaintime for all non-life sentenced prisoners, FDOC Correctional Officers need to start telling the Florida Legislators that they need 65% gaintime for the safety of Correctional Officers to encourage good behavior by most prisoners. While the Florida Sheriffs Association and the Florida Police Benevolent Association both said at Senate Hearings during the 2019 Session that they are opposed to 65% gain-time, no unarmed sheriff’s deputy or police officer has ever done what FDOC Correctional Officers must do every day, walking unarmed through dorms of uncaged prisoners who have all been convicted of felonies and sentenced to prison.
Whatever the crime or the sentence, once someone is in prison, it is the FDOC Correctional Officers, not deputies or police officers or prosecutors or Legislators, who must deal with and control the prisoners’ behavior on a daily basis. The Correctional Officers need all non-life prisoners, whether convicted of non-violent or violent crimes, to be equally and fully motivated to maintain good behavior in order to leave prison as soon as possible – and 65% gaintime is that Great Motivator.
65% GainTime Could Reduce the Prison Population by as Many as 27,000 Prisoners and so Save Hundreds of Millions of Dollars in Prison Costs — Within the First Year
By making the 65% gaintime retroactive (Amendment 11 to the Florida Constitution, effective as of January 8, 2019, now allows the Florida Legislature to apply criminal laws retroactively for the first time since 1885), Florida’s current prison population of about 96,000 prisoners would be reduced to about 70,000 to 84,000 prisoners – within one year. (See APPENDIX B explaining this estimate.) The actual reduction in prisoners would depend on whether the 65% retroactive gaintime applies to: (1) all prisoners except lifers and de facto lifers; and/or (2) to only prisoners with non-violent convictions; and/or (3) to prisoners with violent convictions that can now earn gaintime; and/or (4) to prisoners with violent convictions that cannot now earn any gaintime (such as under a 10-20-life enhancement).
In round numbers, Florida as of January 1, 2019, had 96,000 prisoners of whom 16,000 have life sentences (or de facto life sentences) and so would not be affected by a gain-time change. Of the remaining 80,000 prisoners, about 36,000 (45%) have non-violent convictions and earn gaintime (see APPENDIX C); 34,000 have violent convictions and also earn gaintime; and about 10,000 have violent convictions but cannot now by law earn any gaintime (such as under the 10-20-Life or PRR laws). So, if 65% gaintime was applied retroactively to all current prisoners that have valid release dates, the reduction in the FDOC current total prison population would be up to about 27,000 prisoners within the first year of the effective date of the change to 65% gaintime. If 65% gaintime is limited to non-violent crimes, the prison population reduction would only be about 12,000 prisoners.
Another way to consider the benefits of retroactive 65% gaintime for all non-lifers is to look at how much it would improve the important measurement of the ratio of prisoners per Correctional Officer. The current ratio of prisoners to C.O.s (excluding sergeants and up) is 8 to 1, or 8 prisoners per C.O (now about 12,000 C.O.s to about 96,000 prisoners). FDOC has said that they need 3,000 more C.O.s, which with the current 96,000 prisoners, would bring that ratio down to 6 to 1. But you would also get to that better 6 to 1 ratio by using 65% retro gaintime to get the prison population down to 70,000 prisoners. That way, you would not have the expense of hiring 3,000 new C.O.s, at a cost of about $150 million/year (including benefits).
This change will reduce actual time served for most prisoners by about 20% of their sentence; i.e., someone with the average 60-month sentence would be released 12 months earlier at 65% compared to 85% (after 39 months rather than 51 months). (The problem with amending the gaintime law to 65% but not making it retroactive to all current prisoners is that there will be no prison cost savings until sometime in the future, as newly admitted prisoners begin to end their sentence at 65% instead of 85%. In 2018, the average sentence length of a new admission was about 60 months, so it would be 39 months (65% of 60 months) into the future before true prison population reductions and cost savings begin.)
As to the prison cost savings due to this reduction in the prison population because of 65% gaintime, it’s a complicated calculation and so it is difficult to estimate an exact amount. If one simply multiplies the current publicized overall average prisoner cost of $21,743/year in FY 2017-2018 (i.e., the FDOC budget divided by the total number of prisoners) by the 12,000 to 27,000 fewer prisoners because of 65% gaintime, it would indicate a prison cost savings of some $300 million to $700 million dollars per year, depending on which categories of non-lifers would get 65%.
However, using this average cost per prisoner per year to calculate prison cost savings resulting from a 65% gaintime law is unrealistic, as the incremental cost savings from one fewer prisoner is substantially less than $21,743. However, if the prison population is reduced by tens of thousands of prisoners, as 65% retroactive gaintime for all non-lifers would quickly accomplish, the prison cost savings per prisoner per year would be much closer to the current average of $21,743.
But rather than focusing the positive impact of 65% retroactive gaintime on estimated total prison cost savings, the emphasis at first should be on the benefits of quickly reducing Florida’s prison population by as many as 12,000 to 27,000 prisoners. Whatever the exact prison cost savings would be as a result of this decrease in the prison population, the cost savings would be substantial, in the range of many hundreds of millions of dollars per year.
The Retroactive Change to 65% Gaintime Will Not Require any Added Court Labor; the Change in the Release Date Will be Calculated by The Florida Department of Corrections.
Furthermore, the retroactive application of 65% gaintime to current non-life prisoners would not require any added court labor or resentencing. The actual sentence length remains the same and the recalculation of the time-served release date at 65% gaintime will be done by the Florida Department of Corrections (FDOC) using their current data processing systems.
While a 65% retroactive gaintime law would result in an additional 18,000 to 27,000 additional prisoners released as of the effective date of a 65% gaintime retroactive law (as their release dates are recalculated to a date which would be prior to the effective date of the new 65% gaintime retroactive law), this would be but a one-time occurrence to correct the too-long time-served sentences caused by the failed 85% gaintime experiment. The net result will be that Florida’s prison population will drop to as few as about 70,000 prisoners within the first year of a retroactive 65% gain-time law. Due to the FDOC logistic challenges of dealing with both recalculating some 80,000 prisoners’ release dates and setting up much increased levels of re-entry programs for the large number of prisoners who would be released as of the effective date of a 65% gain-time retroactive law, January 1, 2022 would probably be the earliest realistic effective date of a new law on 65% gain-time retroactively.
85% Gaintime Was Just a Number Enacted in 1995 to Obtain some Federal Grants from 1996-2001, but it Increased Prison Time-Served Length and Prison Costs by 30% Ever Since
Florida began the 85% gaintime experiment in 1995, in large part because the Federal Truth in Sentencing Act gave monetary grants to states adopting an 85% gaintime law. Those grants ended in 2001, but the 85% gaintime law increased the sentence length served and so prison costs by 30% compared to a 65% time served law ((85-65)/65 = 30%). These 30% longer sentences are a primary driver of the increase in Florida’s prison population from 64,000 in 1995 to 96,000 at the end of 2018. As prisoners stayed in their prison beds 30% longer at the 85% gaintime experiment, FDOC had to keep building new prison camps to house the newly needed prison beds.
A newer, truer, Truth in Sentencing Act would state that prisoners in Florida will serve a minimum length of 65% of their prison sentence if they behave well and follow the FDOC rules, but could also serve up to 100% of their sentence if they misbehave in prison — the choice is in the hands and behavior of each individual prisoner. That’s the new Truth in Sentencing program at 65% gaintime.
That 85% gaintime experiment is a failed experiment, twenty-five years after it began. There is no proof that serving 85% of a sentence instead of 65% of a sentence has improved public safety, while there is mathematical proof that it increased sentence served time by 30% and so prison costs by 30%.
(UPDATE NOTE: The number of prisoners and prison costs saved if a 65% gaintime law is passed in the 2022 Florida Legislative Session will be somewhat different from the analysis above, which was based on about 95,000 prisoners in Florida, the average from 2015 to 2020. The prisoner population has dropped to about 80,000 prisoners as of January 1, 2021 primarily because the Covid-19 crisis dramatically reduced the number of new prison admissions as trials were postponed and while FDOC was not allowing the newly convicted to enter prison for fear of spreading Covid-19. However, as the crisis lessens, it is expected that there will be a new quick intake soon of over 10,000 prisoners, bringing the total prison population back to the usual 90,000 to 95,000 prisoners, on which the analysis above is based and so this analysis should soon have about the same results and conclusions.)
APPENDIX A:Gain-time accrued at 20 days month of earnable gain-time -2, PAGE 1 ONLY
Gain-time accrued at 20 days month of earnable gain-time -2, PAGE 2 ONLY
APPENDIX B:65% spreadsheet explanation 2
Calculation of change in Release dates with 65 percent Gain-Time 2