Florida—-Early one morning last May, while in a drug- and alcohol-induced stupor, Jordan Perez was prowling around his neighborhood checking for unlocked cars that might contain cigarettes or cash.
A parked white 1998 Mercedes-Benz SUV proved an easy target. Perez, then 19, opened the unlocked driver’s door and removed a .357 magnum revolver and two semi-automatic pistols from the side panel.
He stumbled the four blocks back to his grandparents’ home, tucking the guns into his pockets and waistband. He was confronted by a neighbor. Perez displayed the revolver but was talked into putting it down before running off. At some point, one of the pistols discharged, the bullet ricocheting off the ground.
Darla Healey was alarmed by her grandson’s intoxicated state as soon as he entered the house, while Healey’s daughter – Perez’s aunt – noticed the guns.
They disarmed the slurring, incoherent teen, who never so much had held a gun before, and promptly called the cops.
Perez, now 20, faces three counts of grand theft, one count of carrying a concealed firearm, and one count of burglary of a conveyance while armed – a first-degree felony punishable by up to life in prison. Under Florida statutes, the latter charge also carries a mandatory minimum three-year prison sentence.
The Forest High School graduate admits to a severe and prolonged drug habit, but claims never to have exhibited violent behavior. He has a fleeting memory of wanting to sell the firearms for cash. Other than being caught with marijuana as a juvenile, he has no criminal record.
“I was messed up when all this happened. I wasn’t in the right frame of mind. I wasn’t in the right circumstance. I’m not a criminal, I’m not a thief,” Perez said during a recent interview at the Marion County Jail.
A prosecutor has offered Perez a plea offer of three years behind bars.
The apparent mitigating circumstances – the influence of drugs, the remorse, his family’s concerted efforts to get him into rehab – have not swayed the prosecutor.”If this guy was a 35-year-old habitual criminal, I’d understand [the plea offer], but he was 19,” said Perez’s defense attorney, Doug Kirkland. “Prison for a young kid? I don’t see that solving anything.”
But that’s the reality of the state’s rigid system of meting out punishment.
Florida’s mandatory minimum sentencing laws, among the toughest in the country, blanket everything from drug and gun crimes to parole and probation violations, allowing not even one seemingly isolated act committed on a drunken binge to sneak past.
Such laws have helped push Florida’s state prison population past the 100,000 mark, outpaced only by California and Texas.
Last month, The Pew Center on the States reported that the nation last year experienced an overall decline in the number of state prisoners for the first time in 37 years. Florida was one of 24 states that continued to see an increase, and one of five states that accounted for more than half the increase.
Experts say that a greater number of individuals are serving longer prison terms than ever before, plus returning to prison with a greater degree of frequency because of probation violations, owing in large part to sentencing policies that some argue are too one-size-fits-all.
“Mandatory minimums is not intelligent. It’s attacking crime with a blunderbuss. We need more finely tuned weapons to deal with crime,” argued Robert Batey, a criminal law professor at Stetson University.
While other states have enacted measures repealing decades-old mandatory sentencing laws in the face of rising corrections costs, Florida has yet to follow suit.
“The difference between Florida and quite a few other states is that [Florida lawmakers] haven’t taken the comprehensive look at the laws that have been enacted and the impact of those laws,” said Linda Mills, who’s been consulting nonprofit organizations on Florida justice reform issues since 2005.
Experts are hopeful that the tide may be slowly turning.”We’ve identified Florida as being particularly problematic because of the length of the drug mandatory minimums. We also think some really good stuff is happening in Florida,” said Deborah Fleischaker of the Washington, D.C.-based group Families Against Mandatory Minimums, which has spearheaded a lobbying effort in Florida.
“People are starting to pay attention because the budget is a mess,” she said.
Fifteen years ago, Florida’s corrections budget was $1.6 billion, or 9.4 percent of the state’s total budget. By fiscal year 2009-2010, that corrections budget ballooned to $2.4 billion, consuming about 11 percent of the general revenue fund.
With Florida now facing an approximately $3 billion budget shortfall heading into 2010-2011, recent prison projection estimates have turned this forecast even stormier.
Already at 101,467 inmates in February, the state’s prison population is expected to swell to over 115,000 by 2015, requiring the construction of nine new prisons and a cost to taxpayers of over $862 million, according to a March report from the Office of Program Policy Analysis & Government Accountability.
Aware of this trend, The Collins Center on Public Policy, an independent think tank with offices in Miami and Tallahassee, formed a steering committee in early 2009 to propose a series of recommendations for reform.
In February, the committee’s report suggested, among other things, to reevaluate mandatory minimums for low-level drug and theft offenses; expand drug courts; implement more faith- and character-based prisons; and ensure that a Correctional Policy Advisory Council established by the Legislature in 2008 finally meet.
“It is time for our state to rethink thirty-year old policies that may have served the state well in their time. But their time has passed. We know more now,” the authors wrote. “Continuing to pour money into a bloated prison system in a time of fiscal austerity is not only unsustainable, it confounds common sense.”
April Young, vice president of Criminal Justice Initiatives at the Collins Center, said it’s not possible to reduce correctional costs without discussing sentencing reform.
“If we’re spending all this money on corrections, we have to look critically at what it’s getting us and what we forgo as we make these choices,” she said. “What we’re interested in is incarcerating people appropriately.”
Florida’s first mandatory sentencing laws for drugs were introduced in 1979, around the time Miami was known as the “drug capital of the Western Hemisphere.”
Today, possessing an amount of marijuana greater than 25 but less than 2,000 pounds, or cocaine greater than 28 but less than 200 grams, nets a minimum three-year sentence. As the amount goes higher, these minimums rise to either seven or 15 years.
The punishment appears even more extreme for other types of drug offenses. Possessing 28 grams of non-prescribed prescription bills such as oxycodone or hydrocodone – the equivalent to one bottle of pills – triggers a mandatory minimum sentence of 25 years.
“You’re supposed to reduce the charge if a [defendant] gives you substantial assistance. The idea was, you’re going to get the little guy to get the big guy. But that’s not what’s happening in the pill cases,” said Sixth Circuit State Attorney Bernie McCabe, whose district covers Pinellas and Pasco counties.
These mandatory drug laws were in effect even as the state revised its correctional policies. Parole was abolished in 1983. In February 1987, the Department of Corrections began implementing early release of inmates due to lack of prison space. The average prison term then was 33 percent of court-given sentences. Early release continued until December 1994 – by then, Florida was undergoing a massive and accelerated prison-building program.
By 1995, the Legislature passed a “truth-in-sentencing” policy which required all offenders to serve at least 85 percent of their prison sentences.
By 1999, a new category of mandatory gun laws, proposed by Gov. Jeb Bush during his campaign a year earlier, was introduced. Under 10-20-Life, possessing a firearm during a crime such as murder, robbery or sexual battery nets a minimum 10-year sentence. If the firearm is discharged, the sentence rises to 20 years. If someone is seriously injured or is killed, that’s an automatic life sentence.
While it had been possible to receive a mandatory three years in gun-related cases where one commits or attempts to commit aggravated assault – or, in Jordan Perez’s case, commits burglary of a conveyance – since as far as back as the 1970s, 10-20-Life also made possessing a firearm by a convicted felon subject to a three-year mandatory sentence.
“This (10-20-Life) was supposed to send a message to the population,” Stetson’s Batey said. “The people who deserve these kinds of sentences could have gotten them anyway, because judges have the discretion to sentence up to these numbers.”
Linda Mills recalls that the passage of 10-20-Life was widely championed by the state at the time.
“It became a brand, like Coca-Cola,” she remembers. “Like, ‘Florida: 10-20-Life.’ “
Those who don’t particularly view mandatory minimum sentencing laws as problematic will often turn the discussion back to the issue of public safety.
“The general principle of having a mandatory minimum is a good one,” said Ric Ridgway, chief assistant to 5th Circuit State Attorney Brad King. “Ultimately, it’s favorable to public safety. The crime rate is generally down. You’ve got to see that at least some of the people are locked up doing mandatory minimums.”
Florida’s crime rate, like the nation’s, has been dropping. Its overall index crime rate experienced a 6.4 percent decline in 2009, reaching a 39-year low. According to the Pew Center, the national index crime rate in 2008 was 37 percent lower than the historic high in 1990.
But that doesn’t translate to fewer prisoners. The Center finds that a growing parole and probation population, and the pattern of sending offenders back to prison when they violate probation, has “kept the prison population increasing during a time when crime declined.”
Retired prosecutor Jim Phillips belongs to the school of thought where locking criminals up under such laws is a surefire method of keeping the streets safe.
“We have to look at money costs versus human costs,” he said. “If you can prevent one convenience store clerk from getting shot over 30, 50 dollars, it’s certainly worth the extra financial cost” of long-term incarceration.
“From a standpoint that there are very dangerous people that can be removed from society for a number of years, they (mandatory minimums) surely have served their purpose,” said Circuit Judge Stanford Blake, who spent 15 years on the felony bench in Miami-Dade County.
But, he added, “The Legislature understands and the people understand that if you pass these things and house people in prison, there is a cost involved.”
Loss of discretion
Critics say mandatory minimum sentencing laws have shifted the power balance of the justice system, assigning more authority to the state attorneys who make charging decisions and less to judges, who have lost discretion in sentencing.
A judge may depart downward from a mandatory sentence in only two circumstances: when a defendant is sentenced as a youthful offender; or when a judge approves the state’s motion to reduce or suspend a sentence based upon the defendant providing “substantial assistance” in connection to another case.
The State Attorney’s Office has authority to waive a mandatory minimum, or amend a charge.
Defense attorney Kirkland said he’s noticed that flexibility is “going to the wayside.”
“The mandatory minimums are not what’s best because I trust the judge’s discretion,” he said. “They’re the ones sitting there, hearing the facts.”
Two years ago, 5th Circuit Judge Hale Stancil sentenced a Weirsdale man to 12 years’ probation for firing a single shot at law officers while in the shower. No one was injured. The deputies were preparing to commit the man to a mental health facility.
With no plea bargain, Bradley Vanderhoff pleaded guilty to three counts of attempted first-degree murder of a law enforcement officer. Stancil, finding that the shooting was an isolated incident, was conducted in an unsophisticated manner, and that the defendant showed remorse, departed from the mandatory 20-year prison term required under 10-20-Life.
The state immediately appealed. In June, the 5th District Court of Appeal overturned the judge’s decision, finding it did not follow the law, but allowed the defendant to withdraw his plea. Today, Vanderhoff, 44, awaits a new trial but will undergo competency review.
“Mandatory sentence laws are a threat to judicial independence and remove discretion from trial judges who once were able to consider the unique circumstances of each case,” Stancil wrote in some notes several months before the appellate ruling came out. “The ‘one-size-fits-all’ mentality may sound good or look good on paper, but it has little or nothing to do with justice.”
Others say such laws could have an unintended effect: Confronted with tough sentences, defendants have nothing to lose by going to trial.
“It sort of prohibits effective plea bargaining, which results in more trials, which are more time-consuming and expensive,” said Umatilla defense attorney Ronald Fox.
It’s an issue that outrages many defense attorneys, confounds legal experts, resigns some judges and leaves those most affected by such laws – the criminally charged – often with little option.
“When you’re in criminal court, you deal daily with human landmines. There are times we have discretion, there are times we do not,” Judge Blake said.
The vehicle that Perez burglarized belonged to an undercover law officer. He faced no disciplinary action for failing to secure his guns in a box or conceal them from view, as required when off-duty. He said the SUV had “a faulty locking mechanism.”
It’s unlikely this unique circumstance will have any effect on the prosecutor’s steadfast resolve to stick with her three-year plea offer.
“I would have gotten a lesser charge if I just took the whole car,” Perez, who has bonded out of jail recently, said with sarcasm.
He’s right. After all, there is no mandatory minimum sentence for grand theft.
Those hoping for revisions to Florida’s tough sentencing policies all refer back to the same legislation from 2008: Senate Bill 2000.
This bill created a 10-member Correctional Policy Advisory Council to evaluate specific sentencing practices like mandatory minimum laws.
Under the bill, which was signed into law by Gov. Charlie Crist, the body was to report findings and recommendations to the Legislature by Jan. 15, 2009.
But without any appropriations for staff support or travel expenses for the members – who would not receive compensation for their work – the council has yet to convene, two years later.
So crucial do reformers feel this council could be in achieving a more cost-effective criminal justice system down the road that the Collins Center for Public Policy prioritized its reinstatement in a February report.
“That is the most important thing that we can do, because at the end of the day, it [sentencing reform] is not going to happen as easily in an election year,” said Allison DeFoor II, a former sheriff of Monroe County and former vice chairman of the Republican Party of Florida, who served on a steering committee established by the think tank.
Legislation introduced by state Sen. Victor Crist, R-Tampa, this year has brought the Correctional Policy Advisory Council back into the conversation.
His Senate Bill 1394, now in the Policy & Steering Committee on Ways and Means, mandates that Department of Corrections Secretary Walt McNeil organize a first meeting if the council has not convened at least once by Sept. 1.
It also requires the bipartisan group – consisting of two state Senate members, two House members, a victim advocacy representative, the attorney general, the DOC secretary, a state prosecutor, public defender and a private attorney – to submit a report by Jan. 15 of next year.
Among the extensive list of questions the council has been asked to consider include whether mandatory minimum sentences should be repealed or modified to reflect exceptions in some circumstances, or whether “truth-in-sentencing” gain-time restrictions could more closely align with federal minimum requirements.
“I think they actually might get this [council] reauthorized and working which means for next year, for session, there will be a lot more to do because the council will have done its work,” said Deborah Fleischaker, of the group Families Against Mandatory Minimums.
Nancy Daniels, public defender in Florida’s 2nd Judicial Circuit, which includes Tallahassee, was appointed by the governor in August 2008 to serve on the council. While she is optimistic of its future, she acknowledges that in Florida’s political environment, one must hope for “baby steps.”
“It’s a tough thing for politicians to make the laws more lenient,” she said. “They’re accused of being soft on crime, and it’s tough in an election year to have that tag on you.”
But the factor that might push the discussion past the “soft-on-crime” rhetoric is the fiscal reality of Florida in general and its correctional policies in particular. The state has plans to build nine new prisons, with an estimated cost of $862 million.
“Florida can’t afford it,” said Barney Bishop, president and CEO of Associated Industries of Florida, which represents businesses around the state. “We’re continuing to put more money into building new prisons and the outcome is the same. It’s [creating] a revolving door, high recidivism, and we’re not giving them [inmates] any new skills,” he added.
“This is a conservative position at the end of the day,” DeFoor said. “Wasting money is not exactly a conservative lifestyle. No one is demanding accountability or performance and they’re just sending a bill. But that party is over, because the numbers became so big.”
Breaking the cycle
As Florida’s prison population continues to increase, the rate of growth has slowed in recent years.
Since October 2008, the DOC began introducing re-entry initiatives to provide inmates with comprehensive services and programs to help with their transition back into society.
In Florida, the recidivism rate is 32.8 percent within an average three-year span. Corrections officials hope to reduce that to 20 percent over the next three to five years.
But they urge patience, explaining that current reentry initiatives are culled from existing resources, and that it might be some time before the numbers start to reflect any decrease.
“We have 101,000 inmates. We’re trying to turn this ship around but we’re huge. It’s going take us a while to turn things around here,” said DOC spokeswoman Gretl Plessinger. “The bottom line is, we have to house those people.”
The state spends an average of $95 million to build each new prison for 1,335 inmates, with another $27 million set aside for operations costs. It costs $20,000 a year to house one state prison inmate.
Back-end treatment programs like re-entry initiatives, which teach valuable education or work-related skills to those already behind bars, and character- and faith-based prisons are viewed as useful and innovative ways to try and tamp down on recidivism.
Some states have opted to try reducing inmates’ sentences in certain circumstances.
Michigan, for instance, reduced its prison population by more than 6,000 since March 2007 by releasing non-violent felons who served 100 percent of their minimum sentence and decreasing parole revocation rates.
In Mississippi, non-violent offenders are now required to serve only 25 percent, as opposed to 85 percent, of their sentences to become eligible for parole.
There is also a greater movement afoot to utilize various treatment courts, such as drug court and mental health court, to divert offenders with underlying needs.
A long haul
But some believe Florida needs to adopt a more proactive approach earlier on, and part of that begins by examining how and for whom mandatory minimum sentences are being applied.
“Take some criminal justice dollars and put them on the front-end of the system to divert people who don’t belong in prison,” said Bishop from Associated Industries. “Prison should be for those who are a danger to themselves and a danger to society. A significant number of people we’re putting in prison are low-level druggies.”
When it comes to existing mandatory minimum sentencing laws, no one is holding their breath for rapid-fire reform.
Bishop predicts it will be a four-year effort to overhaul such laws. But he’s hopeful because of the condition of the budget.
“This is the perfect time to focus on an issue like this, because when you don’t have money, you have to start prioritizing what’s the most important, least important to do,” he said.
Robert Batey, a criminal justice professor at Stetson University, said that if legislators were to amend any of the mandatory minimums, the drug offenses will likely be the first to be affected.
“When it comes to mandatory minimums, change has come very slowly, but when it does happen, it will happen very quickly,” he predicted.
“It really does take a critical mass of legislators who essentially wake up and say, ‘What were we thinking?’ “
This piece, which appeared in Ocala Star-Banner is one of a series of original criminal justice journalism projects around the country produced by 2010 John Jay/H.F. Guggenheim Fellows. They were coordinated with editorial input by Joe Domanick, Associate Director of the John Jay College Center on Media, Crime and Justice. We thank the Harry Frank Guggenheim Foundation for their generous support of this project.
Contact Suevon Lee at firstname.lastname@example.org.
Photo via Ocala Star-Banner