Is Florida Considering ‘Paradigm Shift’ in Justice Strategy?

Gov. Ron DeSantis has been in office less than a month, but some of his appointments suggest a surprising willingness to consider major changes in the state’s justice system.

The first two weeks in office for Florida Gov. Ron DeSantis have been marked by one prevailing sentiment: surprise.

As a Republican congressman from north Florida, DeSantis was relatively unknown statewide until, as part of his campaign for governor, he unleashed a jaw-dropping pro-Trump video in which he read “Trump: The Art of the Deal“ to his baby, and built a wall out of toy bricks with his toddler.

On the campaign trail, he stood behind police and supported mandatory minimums.

Many Floridians seemed justified in anticipating the same hard-right, pro-business-at-all-costs style of governing that had been established by DeSantis’ predecessor, Rick Scott. Instead, DeSantis announced moves in the week following his Jan. 8 inauguration  that even avowed leftists could get behind, like committing $2.5 billion to environmental cleanup and nominating a Cuban-American woman to the state supreme court.

But his approach to justice was especially noteworthy.

He and his cabinet posthumously pardoned the Groveland Four, a group of African-Americans who were falsely accused of raping a white woman in 1949.

See also: “The Groveland Four: Racism, Miscarriage of Justice and the Press”

Could that portend a more reform-minded attitude to criminal justice in a state that has often lagged behind in issues like corrections and policing?

Florida is facing a host of contentious issues. Mandatory minimum sentences in the state require prisoners to serve 85 percent of their sentences, and the use of direct file, wherein prosecutors decide to charge juveniles in adult courts.

School safety is particularly worrisome following the 2018 mass shooting at Marjory Stoneman Douglas High School in Parkland, and the state is in the process of rolling out a medical marijuana system.

New Leaders at Juvenile Justice, Corrections

DeSantis’ appointees to lead the Department of Juvenile Justice and the Department of Corrections represent an intriguing cross-section of both conservatives and reformists.

Simone Marstiller, the new leader of Florida’s Department of Juvenile Justice, rose to prominence in 2003, when she was tapped by then-Gov. Jeb Bush to serve as his deputy chief of staff. She had roles leading the state Department of Business and Professional Regulation and the Florida Elections Commission, and was a judge on the First District Court of Appeal in Tallahassee for six years.

Simone Marstiller, florida’s new juvenile justice chief. Photo via Twitter

She left the bench and was in private practice (and had been appointed to serve through 2020 on the Judicial Management Council that advises the state Supreme Court) when she was tapped by the governor.

Marstiller (who declined an interview request) describes herself on Twitter as “conservative, Christian.” In a January 2018 op-ed that ran in the Miami Herald, she called for a “paradigm shift” in criminal justice and a focus on rehabilitation instead of incarceration. She wrote that as a judge, she’d seen countless first-time offenders who had been convicted of low-level drug crimes and received unreasonably long prison sentences.

She called for a “judicial safety valve” that would let judges use discretion to depart from mandatory minimums in sentencing.

Deborrah Brodsky, director of the Project on Accountable Justice (PAJ), a think tank at Florida State University, said Marstiller was just about to become chair of PAJ’s executive committee when she got the DJJ job.

Brodsky praised Marstiller for being “very analytical (and) rational,” adding she has “incredible management skills.”

“She’s a truth teller. A straight shooter. The kind of friend who will tell you, ‘You know what, emperor? You aren’t wearing any clothes,’” said Brodsky.

Jeb Bush tweeted that Marstiller was “Another fantastic appointment by Governor-elect @RonDeSantisFL! Simone will bring strong leadership to @fladjj and will continue her record of serving our state with integrity.”

Then there’s DeSantis’ pick to run Florida’s Department of Corrections: Mark Inch, a retired U.S. Army major general who studied biblical archaeology at Wheaton College and went on to command troops in Afghanistan.

President Donald Trump tapped him to run the Federal Bureau of Prisons, but Inch resigned abruptly in May after eight months on the job. (Reports suggested friction with Trump’s son-in-law Jared Kushner and then-Attorney General Jeff Sessions.)

Inch (who was also not available to comment) advocated for a balance between punishment and restoration while supporting the federal First Step Act, which lets judges depart from mandatory minimums and other reforms, in a December op-ed on the conservative site the Daily Caller.

Mark Inch

Mark Inch, new head of Florida Corrections

“Retribution and incapacitation is just, and rehabilitation and restoration is an expression of mercy,” Inch wrote. “I call on those who focus on the first, at the exclusion of the second, to search your heart for mercy.

“I call on those that focus on the second, to remember the cost of crime to society and victims, and temper your advocacy in light of these facts.”

To longtime state Sen. Jeff Brandes, a Republican from St. Petersburg who chairs the criminal justice appropriations committee, the hiring of Inch signaled that Florida might finally make strides improving its corrections system.

For years, problems have plagued the system: inmate deaths, abusive guards, low pay and the constant struggle for funding.

“He’s somebody who has spent his life trying to make these types of systems better,” Brandes told the Jacksonville Times-Union. “I don’t think he was brought in to maintain the status quo.”

R.J. Larizza, state attorney for Florida’s 7th Judicial Circuit and head of the Florida Prosecuting Attorneys Association, said some of the things the new administration should prioritize are logistical — like securing funding and figuring out how to function in a digital age.

“There are 20 circuits — they can all have different software,” he said. “All of these different agencies have to be able to communicate, to share and pull all that data” — a task made challenging by new technology, especially body cams.

Some laws were well-intentioned — like the federal rule restricting release of medical information, laws requiring redactions in public records and a new Florida data transparency law — but make compliance complicated.

“What good is a data transparency bill if the information isn’t accurate? It could be very dangerous if data is pulled and it’s inaccurate or incomplete,” Larizza said.

Staff Choices Crucial

Gus Barreiro, a Republican former state legislator and current public policy and community engagement liaison for The Children’s Trust, suggests the administration’s first priority should be making sure they have good personnel in key positions.

“I think most secretaries come in with the great idea of making changes,” he said, “… but two layers down are people who have been here 30 years. the ‘Be Here’ club. They say, “˜I’ve been here before this administration, I’ll be here during this administration, and I’ll be here after this administration.’”

Between Election Day in November and Inauguration Day in January, DeSantis invited 45 people with expertise in criminal justice to join a group called the Transition Advisory Committee on Public Safety, which has been brainstorming and will issue recommendations.

Grady Judge

Grady Judge, courtesy Polk County Sheriff’s Office.

Polk County Sheriff Grady Judd sits on that committee. He said both reformists and hard-liners in the group were close to agreement on certain reforms, such as increasing the threshold for felony grand theft (currently $300 or more) or adjusting the instances where mandatory direct file would apply.

“We definitely agree as a group that there should be some reform as far as prisoner reentry, preparing inmates better for work and reentry into society,” Judd said. “Specialty courts are another one — mental health courts, drug courts, veterans courts — those could expand and increase.”

But funding must be found, he said. “You need more judges, more prosecutors, staff to be there physically in those courts.”

A “safety valve” that would give judges some ability to depart from minimum mandatory sentences is being debated, Judd said.

But he reminded his peers that, despite current sentiment leaning toward reform, the state had gotten tough on crime in the 1990s under a Democratic governor, Lawton Chiles, after a wave of tourists shootings at highway rest stops.

His emphasis, he said, was on public safety.

Law Enforcement Reacts

Judd will have a receptive audience among the state’s law enforcement leaders.

In Columbia County, just west of Jacksonville, Sheriff Mark Hunter, who also serves as president of the Florida Sheriffs Association, said he was “wary” of some of the reforms pushed by hardline advocates.

Take for instance the move to arm teachers in Florida schools.

“I’d want a law enforcement officer or military person with a warrior mentality,” he said. How would a teacher react if one of his or her students opened fire? Teachers know the child, and they [might] have to decide whether to take that child out. It’s a mental struggle.

“Whereas with law enforcement, we train how to deal with aggressive behavior and use deadly force.”

Now that medical marijuana has been legalized, Hunter expects recreational marijuana won’t be far behind. Looking at states that have legalized recreational pot, he said, “If they’ll be honest about it, the experimental age has dropped, into elementary schools. That could present a whole new slate of problems.

Judd said of DeSantis, “I truly believe he’s got the best interests of Florida as his agenda, and I believe all of us just want people to behave and be orderly in society. We don’t want to put [everyone] in prison—just those who need to be incarcerated, who would otherwise be out terrorizing the community.”

Whatever comes, Hunter said, “I’ll enforce the laws on the books. We’ll adjust.”

The Crime Report is pleased to co-publish this article with the Juvenile Justice Information Exchange. Readers’ comments are welcome.


Will Last-Minute Infighting Endanger Prison Bill?

Sen. Ted Cruz (R-TX) is seeking changes that weren’t included in the latest version of the bill. Opponents will try to exclude some inmates from qualifying for reduced sentences. Democrats may abandon the bill if that amendment prevails.

The Senate is moving forward on its sentencing and prisons reform bill but Republicans are still fighting about it, Politico reports. As Majority Leader Mitch McConnell (R-KY) set up next week‘s votes on the bill, Sen. Mike Lee (R-UT) sought to make last-minute changes to reflect a compromise supporters reached with Sen. Ted Cruz (R-TX). Cruz had endorsed the bill because it was supposed to bar many violent criminals from early release, but the version introduced this week did not include all the exclusions Cruz wants. The bill‘s chief critic, Sen. Tom Cotton (R-AR), joined an intense discussion with McConnell, Lee and Majority Whip John Cornyn (R-TX) on the Senate floor, with Lee arguing that changes should be made to increase the bill‘s conservative support.

The Senate will start considering a version without all of Cruz’s changes and without a provision that would allow faith-based groups to participate in anti-recidivism programs. The number of amendments allowed will be limited. The bill needs 60 votes to pass. Cotton and Sen. John Kennedy (R-LA) will try to add new exclusions to people who qualify for reduced sentences, including some sex offenders. One senator said passage of the amendment “would scuttle the carefully negotiated deal we have on this bill. So we’ll have to defeat it. And we will.” The senator said many Senate Democrats would probably defect from the legislation if the Cotton amendment passed. Kennedy said, “There are many senators who are very nervous about this bill and don’t like it and are opposed to it.” Lee said he’s spoken to Jared Kushner, President Trump’s adviser and son-in-law five times a day in recent weeks to get the bill done. Lee he credited Kushner for assisting “in getting the conservative media behind this bill and in countless other ways.”


Reformers Take ‘First Step’ Forward, But Then One Back

Criminal-justice reform advocates barely had time to celebrate the president’s endorsement of a new bipartisan sentencing and prison bill before clouds formed over their reverie, in the form of growing opposition and a growing realization of the bill’s limited impact.

Criminal-justice reform advocates barely had time to celebrate the president’s endorsement of a new bipartisan sentencing and prison bill before clouds formed over their reverie. The Washington Post reports that acting attorney general Matthew G. Whitaker has privately voiced concerns directly to President Trump about drug-sentencing provisions in the bill, according to Sen. Lindsey O. Graham (R-S.C.), with whom Whitaker met Thursday. “He said he doesn’t want to kill it,” Graham said. “He just wanted to express his concerns.” While Senate opponents of the bill marshal their forces, Republic leaders continue to voice skepticism that enough time remains in the lame-duck session to proceed with the bill this year. The legislation also faced more setbacks on Thursday when the National Sheriffs’ Association and several other law enforcement groups released a letter announcing that they would oppose the criminal justice overhaul bill “in its current form.”

The New York Times reported on the bill’s many compromises and limitations, which have some advocates calling it more a cop out than a systemic overhaul, even though some sentencing provisions got added after the departure of Attorney General Jeff Sessions, a strong opponent. The bill makes shorter sentences for crack cocaine retroactive for a few thousand inmates. It increases the number of people eligible to sidestep mandatory minimum sentences, but only by a nudge. And it reduces the three-strikes penalty from life to a still-lengthy 25 years. Less than 4 percent of the federal prison population, about 7,000 people, might get out early, and the federal prison system houses less than 10 percent of the nation’s 2.2 million inmates. Still, the Times notes, many families say even modest reform will improve a deeply flawed system and free many people.


Sentencing Bill’s Odds Improve, But Are No Sure Thing

Even with President Trump now on board in a bipartisan push to overhaul federal prison and sentencing laws, proponents face a number of remaining hurdles to pass the legislation before a new divided Congress convenes in January.

Even with President Trump now on board in a bipartisan push to overhaul federal prison and sentencing laws, proponents must now compete with a rapidly closing window to move a complicated bill with broad implications for the criminal justice system, The New York Times reports. Some conservatives and liberals still have their own reasons to oppose the compromise hashed out in the Senate, while Senator Mitch McConnell, the majority leader, cautioned there is little time remaining to secure the needed 60 votes to take up the bill before the end of the year and the transition to a new, divided Congress.

In what the Times called potentially “the most significant changes to the (federal) criminal justice system in a generation,” the bill combines new funding for anti-recidivism programs, the expansion of early-release credits for prisoners and the reduction of certain mandatory minimum sentences. The president’s support, breathing unexpected life into a legislative effort that had more than once appeared to be dead, could give political cover to Republicans wary of reducing some hard-line sentencing rules for drug and other offenses. The Fraternal Order of Police, the country’s largest police organization, said last Friday that it would support the bill, and the National Sheriffs’ Association appeared to have dropped some previous objections after exceptions were made to block certain fentanyl offenders from eligibility for “good-time credits” included in the prison overhaul portion of the bill. But powerful pockets of opposition remain among some law enforcement officials and conservative lawmakers. However, they lost a powerful ally within the administration when President Trump fired his attorney general, Jeff Sessions, last week. Sessions’s temporary replacement, Matthew G. Whitaker, has signaled that he is more open to the changes.


Sentencing Deal Near? Trump Keeps D.C. Guessing

After a critical meeting on Tuesday, conflicting reports emerge over whether President Trump will firmly back a more ambitious federal sentencing bill in the Senate instead of just the House version focused on prisoner re-entry reforms.

CNN reported Tuesday night that President Trump will announce today that he is supporting the latest iteration of the First Step Act, a bill that his son-in-law and senior adviser, Jared Kushner, has been working to craft and build support for alongside a bipartisan group of senators. Citing “two sources close to the process,” the network reported that the president has wavered on whether to throw his support behind the bill in recent months, but the sources said he was swayed to back the bill on Tuesday after meeting with Kushner.

The Washington Post, however, cites its anonymous sources to call Trump a “soft yes” who has not fully committed to backing the legislation. The criminal justice overhaul, scaled back from its initial ambitious Senate draft but vastly more comprehensive than legislation the House passed this year, could be one of the most significant and bipartisan laws signed by Trump in his first two years in office. Opponents of the overhaul push lost a high-ranking ally when Jeff Sessions, who opposed any initiative to relax sentencing laws, resigned as attorney general last week. Supporters of the measure expect that Trump’s explicit backing will help propel the prison and sentencing overhaul bill through Congress, a push White House officials hope to accomplish during the lame duck session of Congress.


Why Your Vote Today Can Be the Start of Real Justice Reform

Many prosecutors have made the end of mass incarceration and other justice reforms a focus of their election or re-election campaigns, That’s welcome news, says the director of John Jay’s Institute for Innovations in Prosecution–and long overdue. But it should galvanize support for a broader approach to change.

The scourge of mass incarceration is at last getting the attention it deserves from reform-minded district attorneys around the country. Many of  them are running for election or re-election today.

The data bears out the extent to which elected prosecutors have contributed to the unconscionable number of people in American prisons, the tragically disparate racial impact, and underscores the fact that the exercise of prosecutorial discretion could significantly reduce those numbers.

The Vera Institute’s recent report Unlocking the Black Box of Prosecution provides vital information for both communities and prosecutors to help increase transparency in furtherance of this goal.

The United States has the highest per capita prison rate in the world, with more than two million people in American prisons, of whom nearly 60 percent are people of color (while comprising only 30 percent of the population).

As Michelle Alexander and others have persuasively argued, it cannot be overlooked that all of this exists in the haunting shadow of slavery, and the nation’s moral conscience depends on ending mass incarceration.

But in the midst of the public outcry and the heightened scrutiny of local prosecutors, voters and advocates would be well served to consider the public actors outside the criminal justice system who could do the same.

The agencies responsible for mental health, homelessness, substance use disorders, and other social ills have increasingly experienced political and budgetary constraints since the 1970s, which have been highly variable across agencies and jurisdictions. As communities have found themselves facing increased numbers of people without access to services, the clarion call to elected prosecutors has been to find ways to get those people out of sight, out of mind.

And so, over the past 50 years, coincident with the erosion of public welfare services, Americans have increasingly relied on the criminal justice system to solve problems that are not, at their heart, criminal. Problems like mental health, substance use, and poverty sometimes lead to criminal conduct.

But even more regularly, these conditions lead to conduct of which communities disapprove, but which do not, ultimately, constitute matters warranting criminal justice intervention.

Deinstitutionalization of the mentally ill since the 1960s has led to 2.2 million Americans with severe mental health conditions receiving no psychiatric treatment at all.

In the 1970s, 4.5 million units were removed from the nation’s housing stock, over 1 million SRO units were lost, and the nation’s public housing program was essentially abandoned, while increased numbers of single-person households significantly expanded the demand for housing nation-wide.  Some 25 percent of  incarcerated Americans suffer from mental health problems, and 10 percent are homeless at the time they enter jail or prison.

The effect of increased prosecutions has been well-documented. The devastation of the war on drugs, along with the broken windows policies of the 1990s in New York City and elsewhere, increased the probability of indictment and lengthened sentences for violent crimes, and the attendant parole and probation violations.

Bad federal legislation like the 1994 Violent Crime Control and Law Enforcement Act incentivized states to increase their prison population.  And so, we have quickly and devastatingly become the most incarcerating country in the history of the world.

Acknowledging this reality, progressive modern prosecutors over the past decade  have responded to requests from communities to become purveyors of alternatives for the homeless, the mentally unwell, or the poor.

And so, as elected officials come under increased scrutiny, Americans have increasingly seen their local DAs developing social service programming for people who come into contact with law enforcement.  Prosecutors across the country have created supervised release, cognitive behavioral therapy, and substance treatment options, to name just a few.

Thoughtful and well-meaning prosecutors, often with little social work, public health, or psychological expertise — responding to their communities as they are charged to do — find themselves making decisions in cases that at other times in American history would have been addressed through mental health facilities, homeless shelters, or other civil service providers.

Why is a prosecutor better situated than any number of other, lighter-touch agencies, to identify programming for a person who repeatedly drives with a suspended drivers’ license to get to work, or who breaks into an abandoned building to seek shelter?

In addition to asking DAs to process and divert these cases out of the courts, communities might also ask for increased early interventions by public housing, public health, and the civil courts.

It is an oft-repeated trope that to someone with a hammer, everything looks like a nail.  Americans should turn out to vote for their local reform DAs, and the winners of those elections should continue the trajectory that some have started towards reducing the nation’s prison population.

Lucy Lang

Lucy Lang. Director of the John Jay Institute for Innovation in Prosecution

But perhaps instead of asking the criminal justice system to look like a different tool entirely, communities would be well served to ask the other “tools” — many of which are agencies that are not electorally accountable — to rise to the occasion and help end mass incarceration as well.

Lucy Lang is the Executive Director of the Institute for Innovation in Prosecution at John Jay College of Criminal Justice. She welcomes readers’ comments.


Under Radar, Soros Promotes Progressive Justice Reforms

The billionaire financier has channeled more than $3 million into seven local district attorney campaigns in six states over the past year — a sum that exceeds the total spent on the 2016 presidential campaign by all but a handful of rival super-donors. His money has supported African-American and Hispanic candidates for these powerful local roles.

George Soros . Photo by Heinrich-Boll Stiftung via Flickr

George Soros . Photo by Heinrich-Boll Stiftung via Flickr


While America’s wealthy political kingmakers inject their millions into high-profile presidential and congressional contests, Democratic mega-donor George Soros has directed his money into an under-the-radar 2016 campaign to advance one of the progressive movement’s core goals — reshaping the American justice system, reports Politico. The billionaire financier has channeled more than $3 million into seven local district attorney campaigns in six states over the past year — a sum that exceeds the total spent on the 2016 presidential campaign by all but a handful of rival super-donors. He has supported African-American and Hispanic candidates for these powerful local roles, all of whom ran on platforms sharing major goals of Soros’, like reducing racial disparities in sentencing and directing some drug offenders to diversion programs instead of to trial.

It is by far the most tangible action in a progressive push to find, prepare and finance criminal justice reform-oriented candidates for jobs that have been held by long-time incumbents and serve as pipelines to the federal courts — and it has inspired fury among opponents angry about the outside influence in local elections. Soros has spent on district attorney campaigns in Florida, Illinois, Louisiana, Mississippi, New Mexico and Texas through a network of state-level super PACs and a national “527” unlimited-money group, each named a variation on “Safety and Justice.” (Soros has also funded a federal super PAC with the same name.) Each organization received most of its money directly from Soros.