The next big crisis facing Florida's government involves neither child welfare nor education. It will be an issue that has gone unmentioned in this election year. It will be the prison system.

Florida currently has 74,000 state inmates. Including those who are under supervision (i.e. probation) or have absconded, the Department of Corrections now has their thumb on over 200,000 offenders. DOC is now the state's largest agency. Conditions of confinement have become increasingly inhumane.(1)

Florida has never had a major prison riot.

The reasons for this deserve consideration. In the past, Florida has had the good fortune to have some great and honorable men running its correctional system. Wainwright, Dugger, and Singletary all came up through the ranks, headed major institutions, and commanded the respect of both officers and inmates. The current Secretary Moore is the first Secretary in the department's short history to have been brought in from out-of-state. For the past 18 months, Secretary Moore, and those around him, have been busy sending out resumes. The last ticket you want to buy is on the ship where the captain is jumping off.(2)

Gov. Bush’s and Secretary Moore’s ill-advised privitazion efforts are likely to greatly increase the risks of prison violence. Substantially increasing the risk of a prison riot is a 5 year contract, which made Philadelphia-based Aramark Corp. the principal food service provider for the state's correctional facilities.(3)  Although a similar contract failed in Ohio because Aramark served rotten food, Florida officials signed the contract last year with the promise that a penalty clause in the Florida contract would assure a humane standard of food service. So far the company has been fined over $110,000, and the penalty clause has had the opposite of the intended effect because it has given both the state and the company an incentive to serve rotten food.

Yet, Secretary Moore will only be a scapegoat for some of the Department's current problems, and it will make little difference who McBride appoints to run DOC unless Florida can control its inmate population. The Department is simply growing too fast to be effectively administered. Florida must slow the rate of incarceration to allow the good people at the Florida Department of Corrections to catch their breath, and put their house in order.

In response to Florida's growing corrections crisis, Gov. Bush is a one trick pony.

He preaches a naive faith in prison privatization, and the people of the state of Florida would do well to examine their conscious before joining the governor's congregation. Estimating a savings of only 7% over state operated facilities, Florida’s government claims that private prisons will be cheaper because the state will avoid paying for the retirement of what would otherwise be state workers. (4)

To those in organized labor, such a justification is immoral. Retirement benefits are part of the standard decency with which the public must treat its employees.

To those in law enforcement, such a justification is foolhardy. Retaining law enforcement officers, including correctional officers, by providing retirement benefits is a public safety issue. The smooth and safe operation of correctional institutions is most dependent on the officers and inmates being able to cooperate. Retaining staff is essential for that purpose. The PBA is out of touch with its members by supporting Jeb Bush.

At best, prison privatization will only mask the problems of a correctional system that is spiraling out of control. More than likely, the governor is setting Florida on the path that will lead to a disaster more ruinous to the state's reputation than the election snafu of 2000. In the simplest of terms, Florida has too many people locked-up, and DOC is consuming too many of the state's resources. We cannot build our way out of this crisis. If we ignore the problem, Florida’s government will face the acute crisis already felt by other states.(5)  With certainty, that crisis will occur during the term of the next governor.

There is an alternative. It is an alternative that shall make Floridians safer from crime, and, at the same time, allow our state government to limit and control its inmate population. It is an alternative that will allow Florida to balance the demands of corrections, with other competing demands for public safety.

Florida must reform its sentencing structure.

To understand how Florida’s sentencing structure can be reformed; one must first examine how we got into this mess in the first place.(6) 

 Prior to 1984, Florida operated a parole and pardon based, or "indeterminate", sentencing structure. The major difficulty with parole and pardon based systems is that parole is traditionally a function of the executive branch of government; and as such the parole process, which is often judicial in nature, can become subordinate to the partisan politics and prejudice.(7)   But, parole did give the executive branch of government the power to limit the prison population to a specific legislative mandate. Also, parole made the criminal justice system more efficient by generally assuring that prison space was reserved for the worst of the state’s criminals. More importantly, although generally reinforcing the prejudices of the times, the early parole system was also frequently a means by which some disparate and unjust sentences were redressed.(8)

In 1983, Florida adopted sentencing guidelines and eliminated parole. Sometimes referred to as a "determinate sentencing", sentencing guidelines were adopted to deal with the problem of sentencing disparity. Although racial disparity in sentencing was the chief concern of the Sentencing Guidelines Commission, in Florida, racial disparity paled in comparison to regional disparity in sentencing practices, and even sentencing disparity within the same judicial circuit. Hence, the color of an offender's skin was less important a factor in determining his punishment than where the crime was committed and the chance draw of a particular sentencing judge. Two contributing factors of this disparity persist to this day:

Approximately 95% of all inmates are sentenced under Florida’s three major felony classifications.(9)  Those convicted of the most common type of felony, a third degree, can be sentenced to up to five years incarceration; a second degree felony draws fifteen years; and the first degree felony can result in 20 years incarceration.

There is no particular reason why Florida cannot put more rungs on the ladder, and doing so would help reduce disparity. Far more important than the statutory sentencing structure has been the political pressure on judges to met out the harshest possible sentences. There has never been a Florida circuit court judge who has lost an election for being too tough on crime.(10)  To a large extent, this is because, in sentencing, circuit court judges command state-wide resources that the do not directly impact on the judge’s electors. Costs of both probation and parole and state incarceration are paid for out of the state’s general revenue. Even the prisons themselves are mostly located out of site of the general population.(11)

Born 20 years ago of the noble intent to address sentencing disparity, Florida’s determinate sentencing structure has evolved into a monstrous, arbitrary, and inefficient system.

The guidelines and mandatory-minimum sentencing enhancement statutes have spawned a vast amount of appellate activity, which has done little to enhance the quality of justice. Over the past decade, the legislature has shifted the goal of Florida's determinate sentencing structure away from reducing unwanted disparity toward increasing penalties for crime through the enactment of mandatory-minimum sentencing statutes.

In 1998, the legislature adopted the Florida Criminal Punishment Code (C.P.C.)which substantially and arbitrarily increased penalties. Frighteningly, the C.P.C. allows prosecutors to appeal downward departures in sentencing while eliminating defendant’s reciprocal rights to appeal upward departures in sentencing.

Although the current determinate sentencing has created a certain arbitrary equality of injustice and misery, it has also contributed to racial disparate sentencing in other, and more alarming, ways.

The most shameful statistic in the state of Florida is not that we have consistently ranked among the bottom five states in education. Rather, our state’s greatest shame is that we are sending three and a half times as many black juveniles to state prison as their white counterparts. This cuts to the heart of racial equality in our society. Such gross disparity in sentencing can only be the result of institutional racism. To suggest otherwise, is to place in doubt the moral equivalency of the races by implying that black juveniles cannot make the same moral choices as their white counterparts.

One of the underlying causes of this disparity is the amount of control and discretion now given to prosecutors over sentencing because a prosecutor's charges determine the severity of the charged crimes, thus affecting the defendant’s placement in the guidelines. Such discretion increases coercive nature of plea agreements on poorer defendants. Mandatory-minimum statutes have also have made the guidelines increasingly irrelevant as the range of sentencing an offender is exposed to approaches the statutory maximum.

The two most often talked about solutions to this dilemma have been to return earlier incarnation of the sentencing guidelines, or to eliminate the guidelines altogether. Returning to the pre-1998 sentencing structure would improve the proportionality and uniformity of sentencing. But it would do nothing to address the general de-humanizing effect of determinate sentencing schemes. As one law professor put it:

Situational and offender characteristics are as important as social harm in assessing sentences even from a "just deserts" perspective, but these characteristics are almost impossible to quantify and to describe in general language. In the world of sentencing guidelines, form dictates function, and guidelines have disregarded difficult-to-describe sentencing considerations. Apparently for linguistic and bureaucratic as well as criminological reasons, guidelines have focused on social harm and have dehumanized the sentencing process.(12)

More importantly, returning to the pre-1998 guidelines would do little to advert the growing Florida prison crisis. Even if it were otherwise, it is wishful thinking to suggest that the legislature will have the political will to reform itself.

The other commonly considered alternative, eliminating the guidelines would have a disastrous effect on both the perceived fairness of the criminal justice system and on race relations in our state.

A third alternative has recently arisen which is deserving of consideration. What has changed over the past 20 years has been information science and technology, and, with it, our ability model for disparity.

We now have new means by which to recognize and correct disparate sentences. As opposed to 20 years ago, it may be possible to use the mechanism of parole to correct disparity. If so, Florida could return to a more indeterminate sentencing structure by allowing the mechanism of parole to exist simultaneously in both the executive and judicial branches of government.

Parole in executive branch of government could serve its traditional function of allowing the executive branch to control the inmate population and to more efficiently use prison resources by keeping incarcerated the most dangerous offenders. At the same time, the function of reducing sentencing disparity can be preserved in the judicial branch of government by creating a judicial parole board.

Using modern information science and modeling techniques, it is possible to do so without creating a bureaucracy within the judicial branch. Also, judicial parole would allow an avenue for the release of inmates when it serves the interest of justice.

For example, in cases involving long prison terms for juveniles, sentencing is particularly problematic because it is impossible for sentencing judge to appraise how a juvenile may change during the course of his or her incarceration. Today, the only avenue for relief for such a juvenile, who may be ready to return to society, is an appeal to the governor's clemency power.

 Because of the number of appeals for clemency, the governor generally delegates those appeals to staff. Such decisions are best left to the judicial branch of government. Those released through judicial parole could be paroled to a county supervision authority. In this manner, a circuit judge’s electors could be directly impacted by a particular judge’s disparate sentencing practicing; and thus a political feedback mechanism would be created which would act to moderate sentencing and dampen disparate sentencing practices. There are many ways that such a system could be devised.

Even if he were politically so inclined, Jeb Bush's administration is incapable of bringing about sentencing structure reform because he has impaired the ability of his office to deal with matters of race; and sentencing structure reform is a core racial issue.

Finding a new way to deal with disparate sentencing, particularly racially disparate sentencing, is the key to reforming the sentencing structure. By consequence, solving the problem of sentencing disparity is also the key to solving Florida’s growing prison crisis. But, unless the administration of justice is generally perceived and accepted as being fair and impartial, the enforcement of the law becomes viewed as oppression.

If we reelect Jeb Bush, we will doom the state to having over 100,000 people incarcerated by the time he leaves office, and the state will be committed to expensive privatization contracts, which it can ill afford. With Bill McBride, we can chart a different course and, by controlling corrections, put state government’s priorities in order.

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