The Truth about “Truth in Sentencing” in Florida: A Rebuttal to the Florida Sheriffs Association — Part 2
Truth in Sentencing and “Judge-Imposed Sentences”

FSA’s first argument in defense of the 85 percent rule is that reducing a time served requirement to anything less than 85 percent undermines a sentencing judge’s power to impose an appropriate sentence. For example, the FSA report argues:

If a judge imposes a sentence, it should be served (with certain gain time considerations) and not gutted to put a convicted felon back out on the street early.[1]

Former FSA president and current Pinellas County Sheriff Bob Gualtieri echoed this argument on behalf of the FSA:

If a judge sentences someone to ten years in prison after hearing all of the relevant facts of the case, knowing all there is to know about that person, then that person should not get out in six years. Ten years does not mean six.[2]

FSA’s reasoning is flawed and its conclusions are incorrect. Reducing the determinate minimum time served requirement from 85 percent to 65 percent does not undermine judges’ ability to impose appropriate punishments. Additionally, by recognizing that “certain gain-time considerations” are appropriate and consistent with “truth in sentencing,” FSA concedes the point they are trying to disprove.

FSA is correct that a judge imposes a sentence based in part on “knowing all there is to know about that person” — at the time of sentencing. Allowing people to earn additional time off a sentence recognizes the value of having a judge impose a sentence, but also recognizes that people grow, mature, and rehabilitate while serving a sentence. That is, it recognizes that there is more to know about a person after that person has served time in prison than what was available at sentencing.

For example, a person might earn additional time off a sentence by completing educational and vocational programs, drug treatment, and other programs designed to promote prosocial behavioral modifications, all of which would be aimed at preparing prisoners for effective reentry and approved by the Department of Corrections. Under the status quo, prisoners have no incentive to commit to rehabilitation. Under a reformed system, they are rewarded for changing their behavior in a positive direction.

FSA’s position assumes post-sentencing rehabilitation is impossible. That assumption is incorrect. Tens of thousands of people are released from prison every year and never return. Some serve short sentences and are deterred by the experience from reoffending. Others “age out” of criminal behavior. Still others learn the life skills that help them lead stable lives upon reentry. For whatever reason, these people leave behind their life of crime.

One such person is Matthew Charles, who was released from federal prison in January 2019 after serving two terms totaling more than twenty-one years. Georgetown Law Professor Shon Hopwood describes Matthew’s case:

Matthew was in prison because, at the age of thirty, he was sentenced to thirty-five years in federal court for distributing 216 grams of crack cocaine and illegally possessing a firearm. Matthew’s sentence resulted, not from the quantity of crack cocaine he distributed, but from his ugly criminal history that included: “kidnapping a woman on two consecutive days ‘for the purpose of terrorizing her’; burglarizing a home; and fleeing from a police interrogation, shooting a man in the head, and attempting to run off in the victim’s car.” When Matthew was sentenced, the sentencing judge explained that Matthew had “a particularly violent history” and had “demonstrated by his actions that he’s a danger to society and should simply be off the streets.”[3]

Few would argue Matthew’s sentence was unjustified given “all there was to know” about him at the time of his sentencing. However, as Hopwood notes, there would be more to Matthew Charles than the judge knew — or could have known — at the time his sentence was imposed.

But what the judge did not foresee was that Matthew would change. In the more than twenty-one years Matthew spent in prison, he never received a single disciplinary infraction. Matthew studied the Bible during religious services and the law while working as a law clerk in the prison law library. He received an education through college courses. And his focus wasn’t just on himself: he drafted legal filings for illiterate prisoners and explained to them the court orders issued in their cases. When he wasn’t helping illiterate prisoners understand the law, he was teaching GED classes. Matthew was determined to change his character, and he embarked on what the judge who resentenced him many years later called “exemplary rehabilitation.”[4]

Charles’ transformation was so remarkable that not only was he the first person released under the retroactive sentencing reforms in the federal First Step Act, he was also President Trump’s guest at the 2019 State of the Union. Since his release, Matthew has worked as a full-time criminal justice reform advocate, traveling the country meeting with legislators and Governors. By the FSA’s logic, Matthew Charles should still be in prison.

FSA’s claim that a 65 percent requirement would undermine judicial sentencing power is itself internally inconsistent. On one hand, FSA argues that a 65 percent standard would “gut” judges’ ability to keep an offender in prison for whatever amount of time the judge feels is appropriate. On the other hand, FSA concedes that under a 65 percent requirement judges would still determine the total time served. Speaking on behalf of FSA, one sheriff argued that under a 65 percent standard, “. . . judges would go back to sentencing defendants to some artificially higher number of years to ensure that these felons actually serve the time that the court determined appropriate.”[5]

It is impossible for both of these claims to be true simultaneously. If judges control time served under either an 85 percent standard or a 65 percent standard, then FSA’s claim that a 65 percent standard necessarily “guts” judge-imposed sentences is false. If FSA’s claim that a 65 percent determinate standard “guts” judge-imposes sentences, then the claim that judges will retain the power over time served by inflating sentence lengths “artificially” is false.

Current law allows most incarcerated people to earn “gain time” that makes them eligible for release after serving 85 percent of their sentence. By supporting the status quo, and recognizing that “certain gain time considerations” justify reducing time served to 85 percent of an imposed sentence, FSA concedes the principle that serving less than 100 percent of a judge-imposed sentence is consistent with that sentence. Unfortunately, the FSA report does not explain why release at 85 percent is tolerable and consistent with “truth in sentencing,” but release at a different fixed percentage is not.

For his part, Sheriff Gualtieri is correct that ten years does not mean six, but neither does it mean 8.5. The FSA report fails to explain why 85 percent is the minimum threshold that distinguishes “truth in sentencing” from its opposite. It is worth asking whether FSA would consider, e.g., an 84.99 percent time served requirement inconsistent with “truth in sentencing.” What about 80 percent? 75 percent? After all, determinate sentencing does not inherently require an 85 percent time-served requirement. The current standard is the standard only because it is the number President Clinton and state senator Crist chose. The FSA report offers no analysis or evidence that suggests 85 percent is the ideal determinate standard, and offers no analysis or evidence that some other standard would undermine public safety goals.

In fact, alternatives to the current 85 percent rule could almost certainly achieve the same public safety goals FSA wrongly suggests are unique to the status quo. For example, imagine a judge imposes the following sentence:

Ten years. However, if the defendant earns a high school diploma or its equivalent, nine years. If the defendant also completes two years of drug rehabilitation, eight years. If the defendant also completes anger management courses, and at least 50 percent of the required training to earn an occupational license, 6.5 years.

Is this sentence a “façade,” as FSA suggested it would be?[6] Is there no “truth” to it? Would giving a judge the option to impose such a sentence paradoxically “gut” the judge’s decision-making authority in a way that prohibiting the judge from imposing it wouldn’t? Would this sentence “threaten a victim’s right to have an offender appropriately punished”?[7]

Under current law, judges are powerless to impose this kind of conditional sentencing. Under a reformed law, however, proactive sentencing — which both protects judges’ power over sentencing and promotes rehabilitation — would be possible, and would create powerful incentives for people in prison to follow the rules and participate in positive behavioral programming that can lead to successful reentry.

[1] Truth in Sentencing at 3.

[2] Florida Sheriffs Association press conference, January 28, 2020. Available: https://www.facebook.com/floridasheriffsassociation/videos/2561469117234933/.

[3] Shon Hopwood, “Second Looks and Second Chances,” Cardozo Law Review, vol. 41 Issue 1, (2019). http://cardozolawreview.com/second-looks-second-chances/.

[4] Id.

[5] FSA press conference, supra note 2.

[6] Id.

[7] Truth in Sentencing, supra note 1, at 3.
['Greg Newburn']
['Florida', 'Sentencing', 'Criminal Justice Reform', 'Criminal Justice', 'Mandatory Minimums']