Unhandcuffing justice: proposals to return rationality to criminal sentencing.

• Author: Clemens, Aaron M.

Americans love to be number one. Unfortunately, we are now tops in two negative areas: debt and prisons. The federal government's national debt and unfunded liabilities total $53 trillion, wrote David Walker, former director of the Government Accountability Office, in July 2008. (1) This former comptroller general opined even before our pre-election market meltdown that "Washington's current high-spending and low-tax policies serve to benefit today's taxpayers at the expense of tomorrow's. This approach is not only fiscally irresponsible--it is morally reprehensible. It eventually will result in a major economic crisis and serious hardship that will impact tens of millions of Americans in ways they have never experienced before."

Also, our nation imprisons more people per capita than any other nation. (2) Florida is leading this trend with the fastest growth of any state. (3) A recent Pew Report noted that Florida "will run out of prison capacity by early 2009 and will need to add another 16,500 beds to keep pace." (4) With $65,000 per bed "as the best approximation for a typical medium security facility" (5) and $19,308 per year for each Florida inmate, (6) Florida must raise taxes, cut programs, or finance this $1.1 billion in initial capital costs plus an additional $314 million in annual recurring costs.

Yet Florida has not been scrimping on correctional costs lately. In 2007, Florida spent $2.72 billion dollars or an estimated 9.3 percent of its budget on corrections. (7) This means that for every dollar spent on education, Florida spent 66 cents on corrections in 2007. (8) In fact, an estimated 15.1 percent of Florida's state employees work in corrections. (9)

The Problem: Justice System Policy, Not Crime, Has Increased Prison Demand

This increase in prisoners comes not from a simple increase in crime or from judges locking up more people found dangerous to society. According to the Pew Report, "most of the [prison population] growth, analysts agree, [has] stemmed from a host of correctional policies and practices adopted by the state." (10) Debts and prisons are interrelated. Imprisoning more people costs more money. This article describes a method of addressing these two problems by returning rationality to criminal sentencing.

The Solution: Return Discretion in Criminal Sentencing to Trial Judges

The authors discuss the history of sentencing and corrections, including Florida's meteoric prison population growth, followed by proposals that promote judicial independence as a way to help solve the budget crisis by ending any further prison growth unrelated to protecting public safety. Our prison population is burgeoning because the Florida Legislature snatched discretion in criminal sentencing from the hands of judges. A decision was made that experienced judges could no longer be trusted to rationally make criminal sentencing decisions. Sentencing decisions were made by legislators without understanding any individual case facts. Criminal sentencing discretion is now almost wholly vested in the hands of prosecutors when they decide what charges are filed or dropped. (11)

This legislative decision occurred although judges were intended to serve as community arbiters to balance the power between prosecutors and defense attorneys in our adversarial system. Many judges are experienced former prosecutors or criminal defense lawyers who have been handling cases for decades. More importantly, all trial judges must individually stand for election (not retention) every six years, where any individual sentence perceived as too light could weigh heavily in the electorate's mind. But still, the legislature removed sentencing discretionary to non-elected assistant state attorneys, whose zeal may be untempered by experience or electorate accountability.

A young assistant state attorney often has more power on sentencing than the judge. It is solely the prosecutor's decision what charges will be filed, what plea to offer, and whether the plea should follow the guidelines. The problem of inexperienced prosecutors is compounded by the budget crisis, which forces drastic turnover in prosecutors' offices. Salary disparities exist between assistant state prosecutors and not just private attorneys, but also all other government attorneys, save those working in legal aid. These problems have resulted in growing concerns about "fee justice" and the pending inability of courts to address serious criminal matters because of budget cuts. (12)

The Inception of Sentencing and Corrections as Influenced by Sir Thomas More

The history of the legal system in the United Kingdom has greatly influenced the American justice system. Like all premodern societies, the U.K. once lacked prisons and judicial discretion in sentencing. Upon a determination of innocence, people were freed. Those found (13) guilty were executed by public hanging. (14) This approach was criticized by Sir Thomas More in 1615 in his work Utopia. More suggested that executing thieves encouraged thieves to murder to remove witnesses, given that the punishment for thievery and murder were identical. (15)

More's Utopia argued that instead of execution, criminals should serve as slaves for a number of years. He opined that this would allow criminals to serve the commonwealth with their labor, serve as deterrence to other potential criminals, and added that the government should only execute rebellious slaves. (16) More's ideas were gradually adopted. Judicial discretion and judicial clemency saved many a neck from hanging. In the U.K. "incarceration had, by the end of the eighteenth century, become an increasingly important form of punishment." (17)

The adoption of incarceration instead of execution hastened as penal transportation of convicts to America ended with the Revolutionary War, (18) and public opinion turned against executions.

From Judicial Discretion to Judicial Calculation of Mandatory Prison Time in Florida

On October 1, 1983, the Florida Legislature enacted the sentencing guidelines that greatly limited the judicial branch's discretionary power. (19) Before the guidelines, judges could levy a sentence from only a fine and no jail time up to the maximum prison time allowed by statute. (20) Judges often issued indeterminate sentences, as permitted, and prisoners could be released early for good behavior on parole. The notable exceptions laid the groundwork for future judicial limitations. For example, in 1975, the Florida Supreme Court in Owens v. State, 316 So. 2d 537 (Fla. 1975), rejected a contention that separation of powers prevented the legislature from requiring a capital sexual battery convict to serve 25 years in prison before parole eligibility. The court held that setting punishment for crimes was the legislature's domain. (21)

Some courts missed the writing on the wall that its discretion had been limited. For example, in 1984, the First District Court of Appeal considered and then upheld an upward departure in violation of the legislature's guideline rules. In Garcia v. State, 454 So. 2d 714, 416-17 (Fla. 1st DCA 1984), the court explained...