The 2018 Florida Bar Criminal Justice Summit: A First Step in Improving Florida's Criminal Justice System.

Author:Podgor, Ellen S.
Position:Cover story

Imagine state attorneys, public and private defense counsel, policymakers, legislators, and judges meeting in one room to examine key criminal justice issues in Florida that are perplexing, complicated, and sometimes seemingly insurmountable. Now imagine this group reaching consensus on many (not all) issues and leaving the meeting with the motivation and spirit to make a difference in tackling the many issues facing Florida, such as sentencing reform, pretrial release, direct file of juveniles, specialty courts, juvenile sentencing, mental health, conviction integrity, and offender reentry.

Under the leadership of Florida Bar President Michelle R. Suskauer and Steering Committee Chair Hank Coxe, (1) that's exactly what happened on October 16-17, 2018, in Tampa. The inaugural Florida Bar Criminal Justice Summit was far from a typical Bar meeting or convention. Rather, it was a prototype for those looking for a roadmap for criminal justice innovation in their states.

This unique forum of diverse constituencies started with a Florida Bar survey of state attorneys, public defenders, and other key Florida criminal justice system leaders. (2) Provided with survey results on numerous issues that needed review in Florida, a 15-person steering committee comprised of policymakers, judges, prosecutors, and defense counsel formulated a program that would educate the invited participants to the summit and promote discussion of those issues that need immediate attention in Florida. The members of the steering committee were Judge Michael Andrews (Sixth Circuit), Sen. Jeff Brandes (R-St. Petersburg), Deborah Brodsky (director, FSU Project on Accountable Justice), Nancy Daniels (public defender (ret.), Second Circuit), Judge David Denkin (Sarasota County), Hank Coxe (Bedell, Dittmar, DeVault, Pillans, & Coxe), R.J. Larizza (state attorney, Seventh Circuit), Martin McDonnell (Law Offices of Martin P. McDonnell), Judge Jon Berkley Morgan (Ninth Circuit), Chelsea Murphy (state director, Right on Crime), Daniel Norby (Executive Office of the Governor), Sal Nuzzo (V.P. of Policy, James Madison Institute), Michelle Suskauer (Dimond Kaplan & Rothstein, P.A.), Brian L. Tannebaum (Bast Amron LLP), and Sandy Weinberg (Zuckerman Spaeder LLP). (3) Assisting the process were Florida Bar Executive Director Joshua Doyle and Deputy General Counsel Richard Courtemanche.

Opening Sessions: Day One

Introductory presentations set the tone for the summit, starting with opening remarks by Bar President Suskauer, who emphasized that the purpose was to "find meaningful common-sense criminal justice reform." Participants laughed when she assured them that she had no intention of locking the doors until a consensus was reached. Next, Florida Supreme Court Chief Justice Charles Canady reminded everyone to keep in mind the multifaceted purpose of criminal justice, crime control with due process, and individual liberties for the accused. Steering Committee Chair Coxe then emphasized that summit participants should not surrender their agendas, but rather work to strike a balance. The three introductory presentations set the stage for what was to come.

The keynote speakers focused on data. Presenting first was Dr. Gipsy Escobar, director of research and analytics for Measures for Justice, a Rochester, N.Y.-based organization founded in 2011 "to develop a data-driven set of performance measures to assess and compare the criminal justice process from arrest to post-conviction on a county-by-county basis." (4) Noting that "we can't fix what we can't see," she explained that data can tell us what works and when and where systems may go wrong unbeknownst to those working in them. Data is a key for finding what areas and patterns need to be reformed.

With a staff of 18 researchers, Measures for Justice collects data that can provide analytics for comparing criminal justice metrics. They collect "information on every person processed throughout the entire criminal justice system," followed by analysis that focuses on "fair process," "public safety," and "fiscal responsibility." (5) The hope is to compare, share, and act, enabling systemic change. Five states, including Florida, currently participate, with plans for 20 states' participation by 2020. Measures for Justice has identified significant weaknesses in Florida's current data collection; for example, the "poor record-keeping practices" of the pretrial diversion program. Florida Senate Bill 1392, (6) which passed in 2018, requires the Florida Department of Corrections (DOC) to create a database accessible to the public that can be searched by criteria such as case status, race, ethnicity, citizenship, and sentence. Dr. Escobar explained how the DOC database can improve criminal justice data transparency and described the progress her organization has already made in Florida concerning data structuring and collection. For example, she talked about the use of data fellows to assist with data collection.

The second keynote address also emphasized data. Len Engel, the director of policy and campaigns for the Crime and Justice Institute in Boston, presented a sobering overview of Florida's prison population and crime trends. He noted that Florida's DOC had "some of the best data collection and analytic capacity I've seen."

According to Engel, Florida's imprisonment rate is 23 percent higher than average. (7) Florida's prison population in 1978 was 21,436; it peaked at over 100,000 in 2010 and remained at 99,974 in 2016. (8) With this increase, DOC funding has doubled in the last 20 years. (9)

Florida and New York, which are similar in overall population, provide a notable comparison of property crime, violent crime, and general imprisonment rates. Both states have seen their crime rates drop since the late 1980s, yet Florida's imprisonment rate continued to rise until 2010, while New York saw a "significant and steady" drop in incarceration rates since 2000. Focusing on who Florida is sending to prison, the length of their stays, and the total prison population, Engel explained that although fewer individuals were being sent to prison, the length of their sentences had increased. (10) Some in the audience were surprised to learn that Florida's prisoner population aged 50 or above grew 65 percent in the last decade. (11) Equally surprising was Engel's presentation of research showing that "longer prison stays do not reduce recidivism more than shorter stays." (12) He compared Florida's data on "drug-free zone enhancements," "property offenses," and "mandatory minimum sentences" with that of other states, and concluded with policy takeaways that he hoped will provide future agenda items for Florida's legislature. Among them, he stressed that alternatives to incarceration should be examined with a focus on whether there is a correlation between the length of a sentence and recidivism. In response to a question, he clarified that the statistics he presented did not focus on racial disparity in sentencing.

Following the data presentation, the summit participants moved to two breakout sessions: sentencing reform and pretrial release. The sessions provided an opportunity to focus on specific concerns and discuss possible recommendations for moving forward.

Pretrial Release

Chelsea Murphy, the Florida state director for the Austin, Texas-based policy group Right on Crime, moderated the Pretrial Release Workshop. Panelists expressed differing views, as did members of their audience. There was a lack of consensus. Some stressed the importance of the presumption of innocence for arrested individuals in the pretrial stage, while others focused on the need to protect the public from future criminal activity.

Rachel Logvin, senior vice president of the Pretrial Justice Institute in Rockville, Md., started with the legal boundaries provided by the U.S. Supreme Court in United States v. Salerno, 481 U.S. 739...

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