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The Florida Bar

The “Anti-Tough on Crime” Movement

Being tough on crime has been the slogan for the last couple of decades in Florida. It sounds nice and certainly helped many Florida politicians get elected. Unfortunately, this no-nonsense, strict sentencing attitude among lawmakers over the years has resulted in some pretty significant unintended consequences. At the time, it sounded great to slap lengthy prison sentences on offenders regardless of whether the crime included an act of violence or not. It seems logical that putting criminals in prison and keeping them there meant that they wouldn’t be on the street and free to commit more crimes. These laws enacted from the 80s to the late 2010’s have been understood now to have been enacted by emotion and what seemed to make sense rather than empirical data. In other words, at the time, minimum mandatory sentences requiring lengthy prison terms were considered widely to be good law. Today they are not.

Florida Begins the Long Journey to Undo “Tough on Crime” Laws Enacted Over the Last 20 Years Unintended Consequences of Strict Criminal Sentencing Laws in Florida

Getting tough on crime resulted in successful legislation and the enactment of laws that took the discretion away from judges when it comes to sentencing a defendant for a particular offense. It is important to note that mandatory minimum prison sentences are different than sentencing guidelines requiring a minimum number of months in prison. Sentencing guidelines for a particular defendant are established by calculating their prior offenses and are primarily based by that individual’s criminal history.

Sentencing Guidelines Do Not Completely Take Discretion Away From Criminal Judges

If someone is accused of committing an offense in scores mandatory prison based on their criminal history, a presiding judge may still depart from these guidelines. Where a judge finds a reasonable basis for a downward departure, he or she is not bound to sentence in accordance with a defendant’s score sheet and will not be overturned on appeal. A guideline sentence of prison also allows a convicted felon to receive good time and gain time. This amounts to 15% of their sentence being reduced and is almost guaranteed.

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Tougher Laws on Crime Have Resulted in an Overly Burdened Criminal Justice System

Even on the misdemeanor level, mandatory sentences have resulted in an overwhelming amount cases that simply could not be resolved by way of settlement agreement. Defendants are rewarded for accepting responsibility or as in the case of a no contest plea, accepting punishment without admitting to guilt. Most low-level offenses are by way of plea negotiation whereby an appropriate sentence amounts to little more than a slap on the wrist. Misdemeanor cases even for repeat offenders are often disposed of via a plea of no contest and a sentence of time served and court costs. In the case of a driving under the influence offense, however, many individuals are unable to enter into a plea due to the numerous mandatory conditions required. One such example involves mandatory driver license suspensions such as in driving under the influence cases. Some people simply cannot the case where it is required that they lose their privilege to drive for six months or longer. In essence, they are forced to go to trial on the matter.

The Effect of Going to Trial on Our Criminal Justice System

Criminal judges preside day to day under the looming threat of an overburdened backlogged court docket. Criminal cases take a great deal of time, motion practice and hearing time. In Broward County, our judges have hundreds of cases. If even a fraction of these cases went to trial, our criminal justice system would fail. Resolving a case by plea, even a first-degree felony, takes little more than 20 to 30 minutes of a judge’s time. A jury trial however, can last for days. Even a misdemeanor DUI involving breath testing evidence will take at a minimum two days to reach a verdict and otherwise be disposed of. Alternatively that same amount of time could be used to resolve over 30 cases assigned to the division. 

Mandatory Minimum Sentences

Today, Florida has over 100 different mandatory minimums for various offenses. These include everything from DUI to drug trafficking. Mandatory punishments require a convicted individual to serve 100% of their sentence. Criminal offenses requiring at the very least a minimum prison term or special condition are not eligible for downward departure motions filed and argued on their behalf by their defending attorney. All discretion is taken from the presiding judge and any disposition rendered in violation will in a successful appeal by the state attorney’s office in that jurisdiction. Where a judge is appealed and their ruling for sentence is overturned it is viewed as an admonishment and considered quite embarrassing for the elected or appointed official.

Cost to the State of Florida

Florida operates the third largest correctional system in the country with a mere budget of $2.4 billion. We have just under 100,000 convicted felons serving sentences in our state prisons and well over 150,000 offenders under supervision of the Florida Department of Corrections. Tough on crime legislation is credited with resulting in a drop in the overall crime rate in the past 20 years of 60%. Whether the decrease in crime was the actual result of tougher sentencing law as opposed to countless other factors is a hotly debated issue. The statistics themselves are criticized as being deceptive due to the fact that they can be manipulated by policing agencies simple failure to make as many arrests. Regardless and despite these questionable statistics, the cost of maintaining Florida prisons has increased.

Healthcare for Inmates Alone Is Staggering in Florida

Incarcerated individuals are not eligible to receive Medicaid or Medicare. With Florida’s aging inmate population the cost of healthcare alone is staggering. In fact last year the department of corrections cut mental health, substance abuse and reentry program funding in order to compensate a $50 million deficit in our justice budget. Healthcare is financed directly by the state rather than insurance providers or government assistance.

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