REDUCE THE FEAR FAQ SHEET

1.     Any inmate you see on an outside community work squad is a non-violent offender and meets the Dept  of Corrections strict requirements to be able to work in the community.

2.     Over 90% of the Florida inmate population will be released regardless of the crime they committed.

3.     Always remember inmates are human beings first and are paying their debt to society.

4.     One out of thirty two people you see on the street (in the community) have been in prison and are doing their best to re-integrate back into society.

5.     People coming out of prison need help in many areas.  The Florida Dept of Corrections only provides a bus ticket and 100 dollars to those being released.  Many have no prospects for gainful employment nor suitable housing that would foster a positive re-integration back into society.  Many need counseling, job training, drug rehab and various other areas of transitional assistance.

6.     Add to that, the stigma of being a convicted felon, the stress/culture shock of being released into the free society and you have a situation of little to no hope for success.

7.     According to a recent article from the Tallahassee Democrat newspaper, Vicki Lopez Lukis, Chairwoman of the Governor’s Ex-Offender Task Force, said more than 8,100 of the 31,000 inmates released from Florida prisons in 2005 are expected to be back in custody within 3 years for new crimes.  This will cost you, the Florida Taxpayer nearly 148 million- that is not even including capital costs, court costs and costs to local government. 

8.     If each of those 8,100 people received the average 4.6 year prison sentence, the cost will exceed 670 million to the Florida Taxpayer exacerbating this problem.  Many of those returning to prison will be given much longer sentences, because of the ‘Get Tough On Crime’ legislation.  An example is the Prison Releasee Reoffender (PRR) Act that mandates a person convicted of a crime gets the statutory maximum without gain time.  What this means is a person convicted of a 2^nd Degree felony would get a 15 year Minimum Mandatory Sentence without the possibility of early release or of earning any gain time- Essentially tripling the average 4.6 year sentence and the costs!  The Florida Taxpayer bears the brunt of the results of thoughtless or knee-jerk legislation that has been passed over the last decade.

HANDY URLS

Commission on Safety and Abuse in America’s Prisons (June 2006)

http://www.prisoncommission.org/report.asp

Florida Dept of Corrections (DOC) Homepage:

http://www.dc.state.fl.us/pub/

                        Inmates:

                        http://www.dc.state.fl.us/ActiveInmates/

                        Volunteers (& Interning):

                        http://www.dc.state.fl.us/employ/volintern/index.html

                        FL DOC FAQs:

                        http://www.dc.state.fl.us/oth/index.html

US Dept of Justice:

http://www.ojp.usdoj.gov/nij/topics/forensics/events/dnamtgtrans5/coffman2/tsld010.htm

Florida State University:

http://www.criminology.fsu.edu/p/cjl-prison.php

University of Texas San Antonio (Restorative Justice Initiative)

http://www.restorativejusticenow.org

                        National Conference on Restorative Justice, 24-27 June 2007 *******

The Prevention Researcher:

http://www.tpronline.org/articles.cfm?articleID=422

Prisoners in 2005 (NCJ- 215092) and Probation and Parole in the United States, 2005” (NCJ-215091), can be found at :

http://wwwojp.usdoj.gov/bjs/abstract/p)5.htm and http://www.ojp.usdog.gov/bjs/abstract/ppus05.htm

NPR:

http://www.npr.org/templates/story/story.php?storyId=5584841&sc=emaf

ReEntry Policy Council:

http://www.reentrypolicy.org/reentry/Download_the_Report_in_PDF_Format.aspx

Stanford Prison Experiment:

www.prisonexp.org

Open Society Policy Center

http://www.opensocietypolicycenter.org/issues/archive.php?docId=13

The Sentencing Project

http://www.sentencingproject.org/PublicationDetails.aspx?PublicationID=486

RESTORATIVE JUSTICE FAQ SHEET

(Excerpts taken from UTSA Restorative Justice Initiative)

“Courts routinely make criminals accountable, but rarely do they make them responsible.  The prison is not conducive to change.  It feeds on the very character defects that cause the criminal his problems in the first place.”  Judge Dennis Challeen, Making It Right: A Common Sense Approach to Criminal Justice

-     RJ is a systematic response to wrongdoing that emphasizes healing the wounds of victims, offenders

      and communities caused by crime, by:

            --     Identifying and taking steps to repair harm

            --     Involving all stakeholders and

            --     Tranforming the traditional relationship between communities and their government in

                    responding to crime.

-     As people of faith, we are called to involve ourselves in the justice process as we are called to care

      for the poor, the sick, the lonely and the powerless.

-     Current model of Justice is Adversarial with goals being

          --      Deterrence and Incapacitation.

-     The Restorative Justice model is Collaborative with goals being

          --      Healing of the Victim, Community, Government and the Offender

          --      Promotion of Community Peace

-     Restorative Justice:  Justice that Promotes Healing  (Central Principles)

          --      Crime is more than Law Breaking:  It causes multiple injuries: to Victim, Offender, Community, Government

          --     Crimes are Harms or Injuries that must be Repaired

          --      Crimes are Conflicts that must be Resolved

          --      Repairing Harms and Resolving Conflicts requires: 

                   ---     Inclusive and Collaborative Processes

                   ---     Full Pariticipation of All Involved

          --      Right the Wrongs

          --      Justice requires Cooperative Efforts to Restore:

                   ---     Victims (Vindication)

                   ---     Communities (Peace)

                   ---     Offenders (Recompense)

                   ---     Government (Public Safety/Order)

          --     The Community must Establish and Maintain a

                   ---      Just Public Peace

                   ---      Just Public Order

-     Restorative Justice is applicable to a Broad Range of Offenders who:

         --     Admit Their Guilt

         --     Accept Their Responsibility

         --     Seek to Make Amends

          --     And are Willing to Comply with Restoration Agreements!

                        -     RJ:  Lessons Learned

          --     Can be applied to most Juvenile Offenders & Most Adult Offenders

          --     Holds Offenders Accountable:  It’s Direct, Personal, and is conducted in a meaningful manner

          --     Many Benefits to Victims:

                  ---     Higher Rates of Restitution

                  ---     Sense of Security

                  ---     Tell Their Story to the Offender

                  ---     Sense of Justice

          --     Reduce Justice System Costs

          --     Uses Trained Mediators

          --     Must be Culturally Sensitive

-     RJ is a Practical and Useful Model of Justice:  It is increasingly used around the world to Build Safer Communities, Provide More Justice and Less Injustice!

-     Specific example of RJ application:

          --     By courts

          --     Within Congregations

          --     In Your Neighborhood

          --     In Community-Wide Events

          --     In Law Enforcement Agencies

          --     In Crisis/Emergency Situations

          --     Among Offenders & Their Families

          --    Among the Formerly Incarcerated

          --     In Your Congregation:  Recognize that everyone touched by crime- whether as a victim or perpetrator or family member of either- they may feel shame or pain and need an intensive caring ministry touch.  Support Groups, Celebrate Recovery or other practical emotional/ spiritual/physical care.

          --     In Crisis/Emergency Situations:  Victim relief and crisis intervention teams can provide everything from emotional support via companioning or in the practical needs like repair of a broken window.  Domestic and Family violence intervention and prevention are a good example.

          --     In Your Neighborhood:  Community members can organize to provide mediated, non-adversarial responses to problem behaviors by youth, young adults and others living in the area to strengthen informal social controls and improve quality of life.  Neighbor interventions may occur before or after the conduct comes to the attention of justice agencies.  This option is currently available through UTSA’s research projects.

For more information:  John Byrd, Ph.D.,  john.byrd@utsa.edu, 210-458-2535
             Michael J. Gilbert, Ph.D., michael.gilbert@utsa.edu, 210-458-2683
             University of Texas San Antonio
             Restorative Justice Initiative

A JUDGE’S OPINION

Reference Case: 

State of Florida, Appellant v. Annette L. FULTON, Appellee

No 1D03-0081

District Court of Appeal of Florida, First District

4 Aug 2004

STATE v. FULTON, 878 So.2d 485 (Fla.App. 1 Dist. 2004)

(APPELLATE JUDGE) PADOVANO, J., concurs with opinion (below in its entirety).

I agree that the trial judge must sentence Annette Fulton to a minimum term of three years in the Department of Corrections and that he is also requied to assess a fine against her in the amount of $50,000.  However, I am compelled to say that this is not my idea of justice.  To the contrary, I think that this case is an example of the kind of injustice that can be done when a judge is required to apply a rigid mandatory minimum sentencing statute that removes judgment and discretion from the judicial process. 

Ms Fulton is the single mother of six children.  She is twenty-eight years old and the crime that became the subject of the charge against her in this case was her first offense.  She sold forty grams of cocaine in a desperate effort to obtain enough money to buy Christmas presents fo her children.  She did not expect that her motive in committing the crime would exonerate her or even that it would mitigate her punishment.  Instead, she entered an unconditional plea of guilty and stood prepared to accept whatever punishment the trial judge was to impose.

During the sentencing hearing, Ms Fulton promised the trial judge that she would never commit another crime.  This is the kind of statement that is often made at sentencing hearings and often taken with a grain of salt, but the judge may have believed it in this case, given the defendant’s age and her lack of any prior criminal record.  He may have thought that Ms Fulton made a tragic mistake and that her conduct was an isolated incident that would not recur.  It would be logical to assume that she did not suddenly decide to embark on a life of crime at the age of twenty-eight.  As all experienced trial judges know, the propensity for criminal behavior usually shows up much earlier in life.

Taking all of these facts into consideration, the trial judge decided to place Ms Fulton on probation for a period of five years.  His only error, as odd as it may seem, was that the law did not permit him to use his own judgment in deciding on the proper sentence.  Section 893.135(1)(b)1.a., Florida Statutes provides that nay person who sells cocaine in an amount more than 28 grams but less than 200 grams must be sentenced to at least three years in prison and must pay a fine of at least $50,000.

Section 893.135(1)(b)1.a., Florida Statutes was enacted twenty-five years ago and since then it has served as a model for many other statues of its kind.  We now have a host of mandatory minimum statutes, one for nearly every kind of crime that could be deserving of a serious punishment.  See, e.g., § 775.082(9)(a)3., Fla Stat. (2003) (Releasee Reoffenders);  § 775.084(4)(c) (Three Strikes);   § 775.084(4)(d) (Violent Career Criminals);  § 775.087 (Ten-Twenty-Life);  § 790.235 (Possession of Firearm by Violent Career Crinimal).  Even the crimes that are not subject to Mandatory Minimum Sentencing Statutes are controlled by an intricate set of restrictions imposed by the Criminal Punishment Code.  See § 921.002, Fla Stat (2003).  The time a defendant is required to serve under the Code can be determined within a fraction of a month.

For the first one hundred and fifty years of our history, Florida Legislators set only general parameters and trusted judges to decide the appropriate punishment for a crime.  They seemed to understand that the judge was a neutral professional who was in the best position to make the final decision.  It is surprising to me how fast that has all changed.  In the last twenty-five years, the sentencing function has been taken over almost entirely by the Legislature.  Anyone who thinks that a Florida judge has the power to decide what the proper sentence should be in a criminal case would be mistaken.  In many cases judges are not deciding much of anything.  For the most part, they are merely doing the math and filling out the forms in an effort to identify the sentence the Legislature has decided on in advance.  The work they do in arriving at the proper sentence could often be done by someone who has no training or experience in the law, or by someone who does not have any of the qualities our citizens can rightfully expect of judges.

Mandatory Minimum Sentencing Statutes do have some positive features in that they afford an element of certainty and they apply equally to everyone.  But these are the same features that can work to impair justice.  Every case that is within the grip of a Mandatory Minimum Sentencing statute will come out the same way whether it should or not.  Judges have no power to make distinctions or exceptions, even when that is necessary to ensure that justice is done.  This is not realistic.  In my view, the best criminal sentencing statues would be those that offer predictability but not at the expense of individual judgment.  Every case is different.  Judgment also has a place in the sentencing process and I think it is foolish to eliminate it entirely.

I doubt that Ms Fulton is the person the Legislature had in mind when it enacted section 893.135(1)(b)1.a.  But the statute applies to her nonetheless.  The Mandatory Minimum Sentence is required in every case, without regard for any of the factors that reasonable people would use to distinguish one case from another.  The statute does not take into account the age or prior criminal record of the offender, the motive the offender had for committing the crime, the need for imprisonment, or any of the other circumstances in which the crime was committed.  A hardened criminal who imports 200 grams of cocaine into the state with the intention of selling it to school children would be subject to the same mandatory minimum sentence the law requires for Ms Fulton.

This brings me to the heart of my concern.  Statutes like the one at issue here remove the human element from our system of justice, and that presents a serious danger.  The Legislature cannot possibly envision every situation in which a statute will apply when it is enacted  An inflexible statute that commands a particular result regardless of the facts can easily produce an unjust result.  That such a statute will be applied in a way that was not expected is only a matter of time.

Rigid and inflexible statutes remove the most important quality the trial judge may have to offer the parties: the wisdom to make a decision that is fair in the context of the case.  Sentencing decisions are now frequently made without the benefit of wisdom or judicial experience and, in some cases, without any input by the trial judge.  A defendant’s fate is often decided not with the use of critical thinking or judicial experience, but rather by the application of a one-size-fits-all statute.

The case against Robert Schaeffer is a good example.  Mr Schaeffer was caught shoplifting some clothing from a Burdines store and he sprayed the security guard with pepper spray in an effort to get away.  Because the pepper spray was technically a “weapon”, and because Mr Schaeffer had been released from prison for drug and property crimes less than three years earlier, he qualified for sentencing as a Prison Releasee Reoffender.  The statute required the trial judge to sentence Mr Schaeffer to a Mandatory Minimum Sentence of thirty years in prison.

The appellate court had no choice but to affirm the thirty-year sentence, but one of the judges on the panel noted that the statute produced a “senseless result”.  See Schaeffer v State, 779 So2d 485, 486 (Fla 2d DCA 200) (Seals,J., Associate Judge, concurring).  In his view, the case was “a prime example of what can go wrong when sentences are decided outside the courtroom by someone other than the presiding judge.”  Id. At 485.

Stiff sentences are often necessary to serve the retributive goal of the criminal justice system and to ensure the safety of the community, but these objectives can be achieved without sacrificing the ability to make reasoned judgments.  The harsh result that an inflexible statute can produce in an exceptional case like this one can be avoided.  It is possible for the Legislature to set a policy of strict punishments for certain crimes like trafficking in cocaine without taking away the power of the courts to make the kind of distinctions that are necessary to give life to the policy.

I bring up these points only because I think that Florida citizens should be asking questions now about our criminal justice system.  The first of these questions is whether there is any need to remove judicial discretion in sentencing.  I have never met a judge who wanted to establish a record of leniency toward dangerous criminals.  To the contrary, it seems to me that most judges share the Legislature’s goal of ensuring the safety of Florida citizens.  So, it is curious indeed that the Legislature would find a need to take away judicial discretion in sentencing.  My colleague, Judge Seals, posed the same question in relation to the Releasee Reoffender Statute.  He did not understand “what the legislature is so concerned about today that it takes traditional judicial authority away from judges….” Schaeffer v. State, 779 So2d at 490.

Another question worth asking is whether Mandatory Minimum Sentencing statutes have been effective.  I do not know the answer, but I do know that very few people have even investigated the issue.  Section 893.135(1)(b)1.a..serves as a good example.  We cannot compare the incidence of trafficking crimes before the enactment of the law in 1979 to the incidence of trafficking crimes after the law, because drug crimes are not included in the conviction records reported by the Florida Department of Law Enforcement.  What little information we do have though, suggests that the statute may not be working as intended.

The Department of Law Enforcement does publish annual arrest records for drug cases.  According to these records, the number of arrests for all drug crimes has risen steadily from about 15,000 per year in 1971 to about 150,000 per year in 1998.  See Chart Analysis of Trends, Uniform Crime Report, (1999).  This is not a perfect measure of the effectiveness of the statute, because the number of arrests is not related to population changes.  Nevertheless, it is apparent from the Department’s statistics that the number of arrests for drug crimes is increasing at a greater rate than the increase in the population.  If that is so, we should at least question whether it was worth it to require Manadatory Minimum Sentences for drug crimes.

Appellate courts are required to enforce the law as it is written, and we have done that in this case.  However, I think it is also my duty as a judge to question the wisdom of a law that produces an unfair result.  The safety of the community will not be improved by putting Ms Fulton in prison for three years.  If the $50,000 fine is collectable at all, it will only take money away from her children.  Florida citizens will bear the cost of supervising Ms Fulton’s children in relative placements or in foster care.  The social cost of separating the children from their mother and the financial cost of supporting them does not, in my view, justify any deterrent or punitive effect the sentence may have.

The trial judge made a perfectly reasonable decision in this case.  If the law permitted the trial judge to use his own judgment, I would affirm.

END OF OPINION