New Sentencing Laws Follow Old Patterns: A Florida Case Study (condensed to only the PRR portion. A copy of the report can be provided upon request):
The legislature delivered a one–two punch to sentencing policy in 1997 with the passage of the CPC and the PRR. While the CPC stemmed from the legislature’s reactive and unsystematic alterations in the guidelines structure, the PRR stemmed from lawmakers’ reactive and unsystematic alterations in good time (called gain time in Florida) policy. The PRR, a type of a ‘‘two-strikes-and-you’re out’’ law, elevated prior record over conviction offense in determining punishment. The PRR thus represented a retreat from the concepts of just desserts. Some determinate sentencing theorists rejected any role for prior record in sentencing (Fletcher, 1982; Singer, 1979), while others argued that modest enhancements for prior record were compatible with
just desserts because offenders with prior convictions were more blameworthy than first offenders (Von
Hirsch & Hanrahan, 1981). Yet, proponents of both arguments agreed that prior record should be subordinate to conviction offense in determining the scale of punishment. The PRR took the opposite approach.
Gain-time laws were introduced in Florida in 1889 (Florida Laws, 1889, Chapter 3883) to reward and encourage inmates’ good behavior and punish their bad behavior. Florida lawmakers had a long tradition of manipulating gain time depending on the political and fiscal dictates of the moment (Kaufman, 1999). Over the past twenty-five years, many different types of gain time had been enacted, extended, limited, and repealed, with each alteration affecting the duration of punishment for thousands of inmates. The Florida Legislature had added extra gain time to match prison populations to available prison beds; they had likewise taken away gain time to satisfy other political priorities, including looking tough on crime. At times, the changes had been applied retroactively, resulting in numerous ex-post facto legal challenges by prisoners adversely impacted by the rulings. Like the history of sentencing guidelines, the history of gain-time manipulations involved multiple decision-makers operating at different times and places from different ideological and organizational perspectives. The provisions of the PRR are presented below, followed by an overview of its legal and political antecedents. Under the PRR, convictions for any of a list of enumerated offenses committed within three years of release from prison mandated imposition of the statutory maximum sentence (life, thirty, fifteen, or five years, depending on the felony degree). PRR offenders were not eligible for sentencing under the CPC, nor could they earn gain time or other early release credits; instead, they must serve 100 percent of the statutory maximum sentence. The PRR was a mandatory sentencing law that clearly designated the prosecutor as the most powerful person in sentencing. Prosecutors were not required under the law to file PRR status for qualifying offenders, but when they did, judges could not intervene. Judges could not impose a lesser sentence by departure because the PRR bypassed the sentencing guidelines. Nor were any other avenues for mercy left to judicial discretion. The legislature sought to encourage prosecutors to file PRR status, however, by requiring them to write reasons, to be made public, for not filing against qualifying offenders.
The following summary of three of the more important appellate decisions leading up to the PRR illustrates some of the complexities, and opportunities for uneven and unfair distribution of punishment, wrought by frequent gain-time manipulations.
Weaver v. Graham
Hoyt Weaver pled guilty to second-degree murder in 1976 and was sentenced to fifteen years in prison. At the time he committed his offense, gain time was calculated by a formula that accumulated at an increasing rate the longer the prisoner had served. In 1978, the legislature changed the formula to reduce gain-time awards and applied the change retroactively. Weaver claimed that the change would extend his sentence by over two years in violation of the ex post facto clause. The Florida Supreme Court denied Weaver’s petition, relying on its previous decisions that gain time was an act of grace that could be withdrawn or modified (Harris v. Wainwright, 376 So.2d 855, 1979). Weaver’s appeal was heard by the U.S. Supreme Court, which in Weaver v. Graham (450 U.S. 24, 1981) reversed, ruling that any retroactive application of a more restrictive gain-time statute was unconstitutional. By a six –two vote, the High Court articulated its litmus test for ex-post facto violations: laws that apply to events occurring before their enactment that disadvantage the offender. Further, the U.S. Supreme Court recognized that ‘‘a prisoner’s eligibility for reduced imprisonment is a significant factor entering into both the defendant’s decision to plea bargain and the judge’s calculation of the sentence to be imposed’’ (Weaver v. Graham, 31 – 32).
Gwong v. Singletary
The Florida Supreme Court’s ruling in Gwong v. Singletary (683 So.2nd 109, 1996) led directly, along with the case of Lynce v. Mathis (117 U.S. 891, 1997), to the PRR. In 1995, the legislature had passed a ‘‘truth-in-sentencing’’ bill named after the lobbying group STOP (Florida Laws, 1995, Chapters 95 – 294, at 2717). The Stop Turning Out Prisoners Act required all prisoners to serve at least 85 percent of their court-imposed sentences. The law was written to apply prospectively only, but the Attorney General issued an advisory opinion stating the DOC, ‘‘in the exercise of its statutory grant of discretion,’’ might deny inmates the ability to earn different types of gain time, regardless of when they committed their offense, provided that previously earned gain time was not cancelled (Butterworth, 1996). Based on the Attorney General’s opinion, the corrections department issued a ruling applying the 85 percent formula retroactively. This time, the Florida Supreme Court, citing previous rulings of the US Supreme Court, ruled against the state on ex-post facto grounds and an estimated 500 inmates were released (Kaufman, 1999, p. 419, n. 330).
Lynce v. Mathias
Kenneth Lynce was convicted of attempted murder in 1986 and sentenced to twenty-two years in prison. In 1989, the legislature cancelled provisional gain-time credits for offenders convicted of murder or attempted murder, but this change was applied prospectively only (Florida Laws, 1989, Chapters 89 – 100, at 254). On October 1, 1992, Lynce, as the result of all his early-release credits, including provisional gain time, was released from prison. Thereafter, the media attention surrounding the pending release of a notorious sex offender and murderer, Donald Glenn McDougall, led to another change in sentencing policy. The State Attorney General issued an opinion that McDougall could be retained in prison based on his analysis that the
legislature intended to make the 1989 restrictions on murderers and attempted murderers retroactive (Butterworth, 1992; Lynce v. Mathias, n. 15). On the basis of this Attorney General’s opinion, corrections cancelled the provisional release credits of 2,789 inmates in custody, and rearrest warrants were issued for the 164 offenders who had already been released, including Kenneth Lynce, who was reincarcerated and given a new release date of May 19, 1998 (Lynce v. Mathias, 436). Lynce appealed and the U.S. Supreme Court ruled that his continued incarceration was unconstitutional. Incarcerating inmates longer than would have been allowed under the laws in effect when they committed their crimes violated the ex-post facto prohibition,
the High Court ruled. The Lynce decision prompted other inmates to appeal, and ex-post facto violations were cited by the Florida Supreme Court in State v. Lancaster (24 Fla. L. Weekly S30, 1998) (refusing to credit previously earned administrative and provisional gain time upon probation revocation) and Gomez v. Singletary (24 Fla. L. Weekly S33, 1998) (retroactively denying emergency, administrative, and provisional gain time after the implementation of control release). Again, the appellate court remedy was recalculation of
sentences and release for hundreds of inmates.
The preamble to the PRR begins with a thinly veiled reference to two of the unpopular appellate court cases: ‘‘Whereas, recent court decisions have mandated the early release of violent felony offenders…’’(House Bill 1371, 1997). The two cases were Gwong v. Singletary and Lynce v. Mathias, discussed above, whereby first the Florida Supreme Court and then the U.S. Supreme Court found that Florida officials had committed ex-post facto violations in the application of gain-time laws. The legislature, unable to intervene and prevent early release of even the most ostensibly dangerous inmates, sought to seize the initiative and retaliate against the appellate courts through the PRR. Several interviewees expressed concern that voters would not distinguish between the actions of the courts and the legislature, and that the voters would retaliate against lawmakers in the voting booths for early release. Several interviewees discussed the legislature’s anger over the Gwong and Lynce decisions. One interviewee called the PRR ‘‘the remnants of the aftermath of early release.’’ As another explained: ‘‘The PRR evolved from the late 1980s. There were so many variations of sentencing because every year the Legislature changed its sentencing policy, so the DOC had different rules for everyone, depending on the date of their crime. The Legislature said ‘no more gain time,’ but the courts said ‘no, you can’t arbitrarily take it away.’ Hundreds of offenders were released early, and many might commit crimes, so the Legislature said ‘whenever they’re released, if they commit another crime, then they get a long, long sentence.’’’ Another interviewee noted, ‘‘giving them the statutory maximum, no gain time… was overkill. What was really needed was supervising them closely once they were released. But it [the PRR] got caught up in politics, and the Speaker put his entire weight behind passing it. He said ‘we’re not going home without this bill.’ He held hostage everything else.’’ A press release from the National Rifle Association (1997) summarized the legislative mood: ‘‘Frustrated by a U.S. Supreme Court decision in February that denied the state’s right to rescind early-release credits accrued by thousands of Florida prison inmates under old programs intended to relieve prison overcrowding. Florida has added a new weapon to cope with the ongoing early releases of thousands of prison inmates… Hailed as a new weapon against career criminals, the legislation won unanimous approval from a crime-weary legislature despite claims that it will add substantially to Florida’s prison costs in the decade ahead …’’ Other interviewees, including some candid prosecutors, said that the PRR was unnecessary, as prosecutors had sufficient habitual offender laws to cover every potential situation. (The state already had a violent career criminal law, a habitual violent felony offender law, a habitual felony offender law, and a natural life habitual felony offender law.) Interviewees noted that in one respect, the PRR was different than the other habitual offender laws in the extent of power allocated to prosecutors and removed from judges. The other existing laws allowed judges to reject sentencing under the habitual felony provisions, despite prosecutorial filings of habitual status. Under the PRR, if the prosecutor filed charges against the offender as a PRR, judges, as one interviewee said, ‘‘have no wiggle room.’’
The Criminal Justice Estimating Conference (1997, p. 5) calculated that the PRR would add 7,108 inmates to the prison population by June 30, 2003, of whom 5,054 previously would have received a nonprison sentence. In 1998, the estimate was reduced, this time to reflect actual admissions under the PRR, which were only 58 percent of the original estimate (Criminal Justice Estimating Conference, 1998, p. 1). Again in 1999, the Criminal Justice Estimating Conference (1999, p. 1) lowered its projections to 4,108 offenders, of whom 2,286 would previously not have received a prison sentence. Thus, like the CPC, the PRR appeared to be more bark than bite. Research is currently underway to determine why the PRR is being used only sporadically. Are there
any indications that PRR status is more likely to be filed against racial minorities than against Whites? What is the geographic distribution of this severe sanction? How are prosecutors using the PRR in plea negotiations? Future research will examine these and other questions concerning the implementation of the PRR. Other new sentencing laws that were not mentioned in this article might also influence prison population growth in the years to come, including a ‘‘three strikes you’re out’’ bill, a mandatory gun bill named ten–twenty–life, and a civil commitment for sex offenders bill named after a child victim, the Jimmy Rice Bill.