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Florida's Evolving Sentencing Policy: An Analysis of the Impact of Sentencing Guidelines Transformations

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Sentencing systems throughout the United States have experienced great change over the past 30 years. Sentencing policy is often the target of reform as policymakers, judges, and other judicial decision makers grapple with the issues of discretion, sentencing disparity, and sentence severity. Determinate sentencing systems, which regularly entail the use of sentencing guidelines, are commonly employed in an effort to address a number of policy goals. Among the objectives of sentencing reforms are the reduction or elimination of unwarranted sentencing disparity based on extra-legal factors such as an offender’s race, gender, or location. Previous research reports mixed findings regarding the level and existence of unwarranted sentencing disparity. Little is known about the effect of policy transformations on the determinants of sentencing outcomes. The present study examines the influence of legal and extra-legal factors on sentencing outcomes in Florida under three distinct sentencing policies. The analysis indicates that legally prescribed factors are the primary determinants of sentencing across all three policies, but extra-legal influences operate to impact outcomes as well. Important differences across policies in the effects of both legal and extra-legal factors are also revealed. The evidence presented here suggests that highly deterministic sentencing policies are not necessarily more successful at reducing unwarranted sentencing disparity.
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CHAPTER 1
STATEMENT OF THE PROBLEM
Sentencing as a Social, Moral, and Legal Issue
In early February 2004, national media began reporting the story of a missing Florida girl.
The sensationalism of the story was amplified when news outlets throughout the country showed
scenes from a security camera at a local carwash that had captured on video what appeared to be
a man abducting the young girl. After only a few days, a suspect in the apparent kidnapping was
identified and arrested, but for nearly a week the country awaited news on the young girl=s fate.
Sadly, on February 6, 2004, “investigators found the body of 11-year old Carlie Brucia . . . Hours
later, officials charged Joseph P. Smith, 37 . . . with first-degree murder and kidnapping, and
vowed to seek the death penalty” (Eckhart, 2004). To make matters worse, information soon
emerged that Smith possessed a lengthy criminal record including a violent attack on a woman
and weapons and drug convictions. Prompted by reports of outrage among the girl=s family and
the general public that a violent criminal was on the streets and able to commit this gruesome
crime, Florida=s Attorney General was quoted by The Associated Press as saying “you can=t help
but think some of the statutes are too permissive . . . I think it=s important we review putting more
teeth into our statutes” (CNN.com, 2004).
Real-life stories like this one are not uncommon. Crime and criminal justice are among the
most observed, most debated topics in contemporary society. It would be a rare event if an
evening of nightly television or an edition of a popular newspaper or magazine did not include
several prominent criminal-justice related themes. The way society deals with those who violate
the law is among the most conspicuous issues regarding crime and criminal justice.
In the aftermath of the Carlie Brucia tragedy, lawmakers, judges, prosecutors, and even
the governor were all either blamed or called upon to “do something” about the sentencing of
criminals like Joseph P. Smith. Highly salient crimes such as the kidnaping and murder of Carlie
Brucia are often the impetus for calls for reform of the punishment system in this country. While
many reform advocates push for increased severity, others, like U.S. Supreme Court Justice
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Anthony Kennedy, support reducing the harshness of criminal sentences (Greenhouse, 2004b).
The controversy created by criminal sentencing is frequently at the forefront of
criminological and criminal justice debate. This is at least in part due to the importance of the
issue in the various realms of politics, academics, economics, and morality. Commentators have
argued thatthe sentencing decision is the symbolic keystone of the criminal justice system”
(Blumstein, Cohen, Martin, and Tonry, 1983, p. 1). Perhaps more than at any other point in the
criminal process, the sentencing decision represents the juncture at which the criminal law, the
criminal justice system, and the public=s values are translated into tangible action.
Sentencing is the point in the criminal justice process when the criminal law is both
interpreted and applied. The sentences imposed on offenders affect more than simply the
offenders themselves. Criminal sentences also impact specific victims and society at large. Public
support and respect for the entire system is greatly influenced by sentencing decisions. This is
understandable when one considers the highly visible nature of the sentencing decision. For one
thing, the sentence is a concrete transaction that can be readily studied by academia, debated by
the public and politicians, and dissected by the media. The media report on sentencing relatively
often compared to other aspects of the criminal justice system. This makes the issue even more
appealing to politicians and policy makers because it represents an opportunity to show the public
that they are taking action with regard to an issue, crime, in which everyone seems to have an
interest (Marion and Farmer, 2003).
For some, the actions desired are more severe sentences in order to “make the punishment
fit the crime. Others seek sentences that will, in one way or another, keep offenders from
recidivating (Roberts, 1997; Roberts, 2003; Sprott, 1999). These actions are rooted in
philosophical goals, or justifications, for punishment. Philosophical justifications for punishment
fall into one of two categories: the retribution tradition or the utilitarian tradition (Walker, 1991).
Basically, the retribution tradition argues that punishments should be based on just deserts.
Offenders should be punished, or sentenced, because they deserve to be. The utilitarian tradition,
on the other hand, contends that sentencing should achieve some purpose. In other words,
sentences should deter, incapacitate, or rehabilitate offenders. Support for one or the other of
these philosophies continues to help shape sentencing policy in the United States.
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Regardless of the philosophical justification for punishment or political ideology to which
one ascribes, nearly all Americans would agree that punishment (i.e., sentencing) should be fair or
just. Whether someone advocates more severe sentences or sentences designed to rehabilitate,
deter, or incapacitate, nearly everyone agrees that offenders convicted of similar crimes under
similar circumstances deserve similar sentences. Thus, as a least common denominator, fairness in
sentencing is most often associated with reducing or eliminating unwarranted disparity.
Unwarranted disparity is that which is based on race, gender, or other factors not prescribed by
law. What are not always agreed upon are the specific approaches that should be taken to achieve
this goal.
The nature of the sentencing decision makes it a controversial topic. Until relatively
recentlyin the minds of many Americans, the word sentencing evokes an image of a solemn and
slightly mysterious process in which a wise, fair, and impartial judge determines the appropriate
sentence for each offender” (Spohn, 2002, p. ix). But, in fact, those who make the sentencing
decision are not always wise, fair, impartial, or even a judge. There is also a vast spectrum of
opinions about what constitutes the appropriate sentence. Traditionally, decision makers in the
United States enjoyed relatively wide discretion in selecting what they believed were the
appropriate sentences for offenders. This type of human discretion opens up the possibility of
unwarranted disparity. In fact, charges of unwarranted disparity in sentencing have led
legislatures to limit the sentencing discretion of judges.
Sentencing guidelines have emerged as the favored policy approach to achieving
uniformity in sentencing throughout the United States. However, numerous questions remain
largely unanswered. Have sentencing guidelines actually reduced unwarranted disparity? Under
what conditions are guidelines more or less successful in accomplishing this goal? Are different
incarnations of sentencing guidelines more or less effective in realizing the desired goals?
These questions are important in many respects. From a political or policy perspective it
is desirable to know how different approaches work towards successfully implementing a policy
goal. Morally, we wish to eliminate discrimination in such important decisions that deal with core
ideals regarding life and liberty. From an academic point of view, the success or failure of the
different policy approaches is consequential for theories of punishment. Not least of all, our
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ability to punish fairly is directly reflective of the legitimacy of the system.
Recently, the United States Supreme Court brought the issues of criminal sentencing and
sentencing guidelines to the forefront of public attention and, in turn, reinvigorated the
controversy surrounding this important process of the criminal justice system. In June 2004, in
Blakely v. Washington (2004), the Court ruled in a divided 5-4 vote that the state of
Washington=s sentencing guidelines violated the Constitutional right to a trial by jury. In January
2005, the Supreme Court returned discretion to federal judges by ruling that the federal
sentencing guidelines should only be viewed as a voluntary guide to judges instead of mandatory
restrictions on their discretion (United States v. Booker, 2005; United States v. Fanfan, 2005).
These recent Supreme Court decisions will effect change in both federal and state sentencing
systems (Greenhouse, 2004a). It is likely that these decisions will usher in a new phase of
sentencing law as states and the federal government attempt to reform their sentencing systems to
conform to the Supreme Court=s landmark rulings.
Until this new era begins, sentencing law in America can be conceptualized as having three
distinct phases (Wicharaya, 1995). The first lasted from the late eighteenth century through the
1870s. The second phase spanned the following century from the 1870s through the 1960s. We
are currently engaged in the third period of sentencing policy, which began in the 1970s. The
focus of this dissertation is on this third period of sentencing reform, the era of determinate
sentencing characterized by sentencing guidelines and mandatory sentencing. In his influential
book, Sentencing Matters, Tonry (1996) explains that sentencing in contemporary times is more
important than ever before. The current significance of sentencing is due at least in part to the
political salience, and ideological debate, that has characterized the topic for the past 35 years.
We live in a time when the punishment of offenders has become a high-order subject both
politically and academically. In order to gain perspective on the current state of sentencing, the
next section will discuss the history of sentencing in the United States.
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History of Sentencing in the United States
Incarcerative Sentencing: Enlightenment Reform
From the early history of the United States, both the states and the federal government
tended to blend together philosophical justifications for punishment (Stith and Cabranes, 1998).
During colonial times criminal punishment consisted of severe, punitive, retributive-justice. Large
numbers of crimes were punishable by death and offenders committing less serious crimes were
subject to corporal punishment, banishment, and public humiliation (Blumstein et al., 1983;
Wicharaya, 1995). Much of that changed following the American Revolution and ratification of
the Constitution. Sentencing law during the late eighteenth century was greatly influenced by
Enlightenment thought (Maestro, 1942; Stith and Cabranes, 1998; Wicharaya, 1995). Beccaria=s
On Crimes and Punishment, largely interpreted as promoting deterrence as the only justification
of punishment, provided a treatise upon which punishment reform was based in both Europe and
America (Draper, 2000; Maestro, 1942; Maestro, 1970). At the same time, rehabilitation and
reformation, most closely associated with the Pennsylvania Quakers, had gained acceptance in
America by the end of the eighteenth century. Also, perhaps as a holdover from the Calvinist
influence of the colonial period characterized by harsh and vengeful punishment (Wicharaya,
1995), the goal of retribution also enjoyed relative prominence within the criminal law and justice
system.
Thus, sentencing during this time reflected a sort of hybrid philosophy (Stith and
Cabranes, 1998). Offenders were sentenced to imprisonment and either hard labor or solitary
confinement with the dual purposes of retribution and reform through atonement or expiation.
Beccaria=s ideas of deterrence and proportionality were also implemented. The sentencing system
was known as a flat system, which fixed sentences legislatively and required judges only to
determine guilt or innocence (Wicharaya, 1995). Sentences during this developmental period of
the nation were lengthy and signified a shift from reliance on the death penalty to utilization of
imprisonment. Incarcerating offenders was viewed as being more humane and certain and better
suited to the diverse goals of punishment popular at the time (Blumstein et al., 1983). This
determinate sentencing system was thought to accomplish the goals of punishment because
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specific, usually long, terms of incarceration were outlined by legislatures. These sentences were
thought to be harsh enough to both specifically and generally deter as well as provide retribution.
During the second half of the nineteenth century in America, public, professional, and
academic sentiment had in large part shifted towards a more rehabilitative sentimentality (Allen,
1981; Rothman, 1971). Prisons, like youth reformatories and mental asylums, came to be viewed
as venues suitable to reform and rehabilitate criminal offenders. By the late 1800s the United
States had entered a time that has variously been designated as the Progressive era (Rothman,
1971), the rise of the therapeutic state (Wicharaya, 1995), and the emergence of the rehabilitative
model (Blumstein et al., 1983; Stith and Cabranes, 1998). Around the same time positivist
criminology was emerging as the dominant paradigm in the field (Akers, 1997; Lanier and Henry,
1998). So-called biological theories of crime, which emerged towards the beginning of the
positivist movement in the late 1800s, were an important influence on sentencing.
Indeterminate Sentencing: Positivist Reform
By the end of the nineteenth century, sentencing shifted from a determinate, flat system of
fixed sentences to an indeterminate sentencing structure based on the rehabilitative ideal. In 1870,
the National Congress on Penitentiary and Reformatory Discipline urged that crime be viewed as
a moral disease (Wicharaya, 1995). Flat, or determinate, sentencing was ill-equipped to deal with
this approach to handing offenders. Indeterminate sentencing, on the other hand, set broad
ranges for incarcerative sentences that allowed for great discretion on the part of both judges and
prison officials. Advocates of indeterminate sentencing
asserted that the causes of criminal behavior were different for each offender, and therefore they
sought to individualize criminal justice procedures. The medical model prevailed as the offender
came to be viewed as sick – or in need of treatment B and the prescription had to be tailored to each
offender=s illness. Thus the determinants of sentences were shifted away from the offense to the
offenderBfrom what he had done to who he was. And a decision about the offender=scure” could
only be made by a professional after treatment, not at the time of commitment (Blumstein et al.,
1983, p.63)
By the end of the 1870s, parole was developed in order to shift the determination of the end of an
offender=s sentence from judges and legislators to so-called penal experts (Stith and Cabranes,
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1998; Wicharaya, 1995).Gain time” or “good time credit” was developed in order to provide
incentive and reward for successful reformation by offenders and to punish bad behavior. By the
beginning of the twentieth century, parole and other indeterminate sentencing practices were
widespread in both the state and the federal systems (Stith and Cabranes, 1998; Wicharaya,
1995).
From the early twentieth century through the early 1970s, indeterminate sentencing
structures were the predominant sentencing model in the United States. Biological theories of
crime, popular at the end of the nineteenth century, continued to have influence on criminology,
and therefore sentencing, throughout much of the next century. Other positivist theories, which
determined the causes of crime to range from social learning to failed socialization to a sick
society and culture, dominated criminological thought for much of the next century (Akers, 1997;
Lanier and Henry, 1998). This influence undoubtedly enabled indeterminate sentencing to sustain
its position as the preeminent structure throughout much of the twentieth century.
By the late 1960s, the influence of the rehabilitative ideal on punishment and sentencing
was beginning to come under attack. Several developments precipitated the descent of
indeterminate sentencing. In the early 1950s, the American Law Institute began work on the
Model Penal Code and a completed draft was disseminated in 1961 (Griset, 1991; Stith and
Cabranes, 1998). The Model Penal Code represented an effort to reform the substantive criminal
law by systematizing and creating consistency in the way crimes were defined and categorized. At
this time, there was not a corresponding attempt to reform the indeterminate sentencing system.
While the Model Penal Code was still largely congruous with indeterminate sentencing, it did
provide limited guidance with regard to sentencing decisions (Stith and Cabranes, 1998). At
nearly the same time, the United States underwent what has been termed the “due process
revolution, during which the Warren Court incorporated most of the Bill of Rights to the states
(Graham, 1970). These reforms to both substantive and procedural criminal law were indicative
of a time when attitudes were amenable to legal and policy transformations.
Philosophical objections to the rehabilitative ideal and indeterminate sentencing also
emerged during the turbulence of the 1960s and 1970s. Beginning with Hart (1961; 1968) and
continuing with Rawls (1971), von Hirsh (1976), and Dworkin (1978), writers of the time
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rejected utilitarian goals. Instead, calls for reform went out for a system characterized by a
deserts-based model of sentencing. These theorists argued that retribution, or punishment for
punishment=s sake, was the only logical justification for punishment. Moreover, many of these
thinkers claimed that punishment based on the concept of just deserts was the only fair way to
punish (Wicharaya, 1995).
Perceptions of the fairness of the system were based upon the inadequacies prevalent in
the indeterminate sentencing system. By the 1970s, support for the rehabilitative ideal had waned
considerably (Blumstein et al., 1983). The deterioration of the rehabilitative ideal was due, in
large part, to its perceived failure to accomplish its goals. Academics, politicians, and
practitioners alike were influenced by Martinson=s (1974) review of the rehabilitation research,
which was interpreted by many as claiming that nothing works to reduce recidivism. Regardless
of the accuracy of these interpretations, Martinson=s article and others like it provided ample
evidence to those opposed to indeterminate sentencing and the rehabilitative ideal (Sarre, 2001).
These types of critiques of the effectiveness of rehabilitation, together with an increasing
public fear of crime and criminals engendered by rising crime rates, led to heightened attention
focusing on alternative goals of sentencing. Since rehabilitation did not seem to be reducing
crime, crime control became a rallying point for reformers (Blumstein et al., 1983). Both
incapacitation and deterrence, as well as retribution, were beginning to garner more attention in
the debate over penal philosophy (Blumstein et al., 1983; von Hirsch, 1987).
Furthermore, the relatively newfound interest on prisons and their treatment programs
pointed out some glaring problems within the institutions. For example, most prisons at the time
were ill-equipped to properly treat and rehabilitate their wards (DiIulio, 1991; Sarre, 2001). The
professionals who were supposed to be running the programs – social workers, psychiatrists, and
psychologists – were either untrained or absent. Treatment was a poorly defined concept that
meant many different things depending upon when and where it was administered (Blumberg,
1979). Prison budgets were also not capable of fully implementing proper treatment for
offenders. At the time, Mitford (1973) reported that only five percent of prison budgets
nationwide were devoted to rehabilitation services. Rehabilitation and treatment, the cornerstones
of indeterminate sentencing, were mere rhetoric that concealed the true nature of a system that, in
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practice, was utilizing prisons or correctional facilities according to the rhetoric, largely for
anything other than rehabilitation.
According to Allen (1981), changes in society, those relating to crime and punishment and
those unrelated, also led to the demise of the rehabilitative ideal and indeterminate sentencing. An
increase in fear of crime, the civil rights movement, prison uprisings, the Vietnam War, and
political corruption all led to doubts about the legitimacy of the system and trust in government
(Allen, 1981; Blumstein et al., 1983; Griset, 1991; Stith and Cabranes, 1998; Wicharaya, 1995).
Authority became suspect. Many people throughout society began to believe that discretion
within the system had, in fact, led to discrimination within the system.
While indeterminate sentencing structures support more individualized punishment
schemes, they should not be confused as advocating disparate sentences based on attributes of
offenders such as race, gender, age or any other so-called extra-legal variables. Throughout much
of the twentieth century evidence suggested that unwarranted disparity was indeed pervasive in
the United States. Academic research up until this point in time, while not without its limitations,
provided a host of studies that showed unwarranted disparities in sentencing based on race, sex,
socioeconomic status, and gender (Bullock, 1961; Johnson, 1941; 1957; Lemert and Rosberg,
1948; Sellin, 1928; 1935; Wolfgang, Kelly, and Nolde, 1962; for reviews see Hagan, 1974; Zatz,
1987).
Academic studies, coupled with political criticism of judicial leniency and the
aforementioned philosophical, practical, and societal challenges to indeterminate sentencing
systems, led to widespread calls for reform from both sides of the political spectrum (Kress,
1980). According to Blumstein et al. “a broad consensus in favor of change had formed among
the political left and right, law enforcement agencies and prisoner=s groups, and reformers and
criminal justice systems officials (1983, p.65). An example of the agreement between usually
divergent political ideologies can be seen in the effort to reform the federal sentencing system. A
bipartisan coalition including Senator Edward Kennedy, a liberal Northern democrat, and
Senators John L. McClellan and Strom Thurmond, both Southern conservatives, initiated several
reforms during the late 1970s and early 1980s (Stith and Cabranes, 1998). This kind of support
for change from both sides of the political aisle made sentencing reform inevitable.
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Although agreement existed on the need for change in sentencing systems, the rationales
behind the calls for alteration were not very similar. The left saw the disparity in sentences as a
sure sign of discrimination and an unfair system. Liberals argued that the discretion inherent in
the case-by-case decision making of indeterminate sentencing was at odds with notions of equality
and objectivity in the law, which led toinequity, injustice, and arbitrariness in the application of
the law” (Griset, p.31, 1991). Their primary concern was that the powerless were the most
adversely effected by vast discretion and disparity. Meanwhile, the right viewed indeterminate
sentencing with suspicion based on its perceived uncertainty and leniency (van den Haag, 1975;
Wilson, 1975). Parole release meant that offenders often did not serve their full sentences.
Releasing offenders prior to the fulfillment of their imprisonment term violated notions of just
desserts. Sentences based upon utilitarian concepts such as rehabilitation and incapacitation were
antithetical to most conservative beliefs about punishment (Griset, 1991). Conservatives believed
that punishment should be primarily based upon retribution.
Determinate Sentencing: Structured Reform
The decline of the rehabilitative ideal and the corresponding and nearly universal
dissatisfaction with indeterminate sentencing led to widespread calls for an overhaul of the
American sentencing structure. Several sources were instrumental in the reform movement.
According to Blumstein et al. (1983), academic research played a large role in altering both the
prevailing sentencing system and viewpoints on the subject. Research not only documented
disparity and bias in sentencing, it also engendered more open discussions of policy and made
reform a more viable option. In addition to the ongoing academic research of the time, several
treatises made the case for replacing indeterminate with determinate sentencing.
In 1971, The American Friends Service Committee, an organization rooted in Quaker
traditions which claims to target injustice, published Struggle for Justice. Representing the first
organized dissertation for reform in the 1970s (Griset, 1991), Struggle for Justice advocated for
the discontinuance of indeterminate sentencing and parole. Perhaps the most influential reform-
minded book of the 1970s was Federal District Court Judge Marvin Frankel=s Criminal
Sentences: Law Without Order (1972). Frankel also advocated an end to indeterminate
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sentencing and a restructuring of parole. Frankel=s proposal for a determinate sentencing system
included his suggestion that sentencing commissions be created in order to create sentencing
guidelines. Like Struggle for Justice and Criminal Sentences, von Hirsch=s Doing Justice (1976)
argued for putting an end to the indeterminate sentencing system through the implementation of
determinate sentencing. In Doing Justice (1976), von Hirsch argued for the creation of
sentencing guidelines. Thus, the United States during the 1970s had not only rejected the idea of
the rehabilitative ideal and indeterminate sentences, it also had several influential prescriptions for
how to replace that rebuked policy. Notably, all three of these influential treatises renounced the
longstanding goal of crime control through sentencing and advocated retribution as justification
for their proposed sentencing systems.
When rehabilitation fell out of favor as a guide to sentencing policy,just deserts took its
place in both policy and academic arenas (Tonry, 1996). The public was weary from years of
increasing crime rates and, by the 1980s and the ascendancy of conservatism, which accompanied
Ronald Reagan=s rise to national power, attitudes towards crime and criminals had become
harsher and more punitive (Cullen, Fisher, and Applegate, 2000; Tonry, 1996). In academia,
something also was needed to fill the void left by the vanquishing of the rehabilitative ideal. The
utilitarian crime control justifications for punishment were no longer very attractive arguments.
The capability of rehabilitation (Martinson, 1974), deterrence (Chiricos and Waldo, 1970), and
even incapacitation (Boland, 1978) being successful was placed in serious doubt throughout the
academic world. Instead, advocates of a more conservative approach aimed at punishment for
punishment=s sake rather that accomplishing some sort of crime control goal were becoming more
influential (van den Haag, 1975; Wilson, 1975). Retribution, or making the punishment fit the
crime, was to be accomplished through determinate sentencing systems.
Neither Frankel (1972) or von Hirsch (1976) specified what a sentencing guidelines
system should look like. Instead, they introduced concepts that they hoped would be adopted and
particularized throughout the United States (Griset, 1991). The most influential of these
proposals were the ideas of presumptive or voluntary sentencing guidelines developed by
administrative agencies known as sentencing commissions (Tonry, 1996). Presumptive sentencing
guidelines entail narrow ranges set by the sentencing commission within which judges are required
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to sentence offenders. Presumptive guidelines allow for small deviations from these ranges for
qualifying mitigating or aggravating circumstances. Most voluntary guidelines are similar to
presumptive guidelines in all but one respect; unlike presumptive guidelines, voluntary sentencing
guidelines lack legal authority that requires judges to comply with their provisions (Wicharaya,
1995).
In addition to sentencing guidelines, mandatory sentencing reforms also became a popular
aspect of determinate sentencing systems (Wicharaya, 1995). Mandatory sentencing laws, usually
in the form of mandatory minimum sentences, set a minimum sentence for certain crimes and/or
offenders. Under some of these determinate sentencing schemes, the legislature requires that
judges sentence offenders convicted of designated crimes, such as those involving weapons or
violence, to mandatory prison sentences for terms not less than that specified by law. Others,
known as habitual offender or three strikes laws, require minimum sentences for repeat offenders.
Throughout the United States, many states and the federal government implemented these
ideas into practice (Stith and Cabranes, 1998; Tonry, 1996). By 1983, 49 states had mandatory
minimum sentencing laws for certain violent crimes and 33 states had them for repeat offenders
(Wicharaya, 1995). Between 1976 and 1984, ten states had enacted some form of sentencing
guidelines (Marvell and Moody, 1996). By 2003, 25 states, the District of Columbia, and the
federal government had either implemented or were considering sentencing commissions and
sentencing guidelines (Gillespie, 2003; Tonry, 1996). There were several variations that the states
took when drafting their determinate sentencing policies. The sentencing commission model
proposed by Frankel (1972) and discussed earlier was just one of the alternatives (Griset, 1991).
Some states succeeded in eliminating parole release; others maintained parole. Several states
implemented voluntary guidelines; others made their guidelines mandatory. Sentencing
commissions were utilized in some jurisdictions; elsewhere the legislature itself drafted the
guidelines. Whatever the form and extent of the reform efforts, it was clear that a shift had
occurred in American sentencing policy. Determinate sentencing was now king.
For the last 25 years of the twentieth century and continuing into the twenty-first century,
determinate sentencing systems predominated throughout the United States (Tonry, 1996). Most
jurisdictions implemented at least some form of determinacy such as mandatory minimums, parole
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revision or elimination, or sentencing guidelines (Shane-DuBow, Brown, and Olsen, 1985;
Zimring, 1983). Some states considered, but rejected, fully determinate systems (Griset, 2002).
Others were successful in implementing guidelines and mandatory sentencing systems that still
thrive as models of determinacy (Kramer and Ulmer, 2002). A few jurisdictions have experienced
a more tumultuous affair with determinate sentencing over the past 30 years. Florida represents
this latter category (Griset, 1999).
The Florida Sentencing Saga
In the late 1960s, Florida began an extensive restructuring of its judicial system (Handberg
and Holten, 1993). Initially, a new state constitution was implemented. Other reform efforts
constituted unifying the structure of the courts through consolidation and simplification, and
altering judicial selection methods. Sentencing and punishment issues also rose to the forefront of
the endeavor to modernize Florida=s government (Handberg and Holten, 1993).
Throughout the first three-quarters of the twentieth century, Florida, like other
jurisdictions in the United States, operated under an indeterminate sentencing structure. Judges
were given broad discretion to determine sentences for offenders. Possible sentences ranged from
fines to incarceration for the statutory maximum
1
(Florida Corrections Commission, 2000). Like
the criticism of indeterminate sentencing in general, Florida=s indeterminate sentencing system was
also the subject of ridicule (Griset, 1996; Griswold, 1985). While indeterminate sentencing was
demonized in Florida for the same reasons that it came under fire in the rest of the country, two
issues helped move the state into action. First, indeterminate sentencing led to a vast number of
prisoners serving lengthy sentences in relatively few prisons. Prison overcrowding became a
problem by the late 1960s and early 1970s. In fact, the situation became so bad that the federal
courts intervened in 1972 when Florida inmates brought a class action suit (Costello v. Dugger,
1972) alleging that their constitutional rights were violated by the overcrowding (Griset, 1996).
1
Five years for a third-degree felony, 15 years for a second-degree felony, 30 years for a first-degree felony, life for a life
felony.
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The second major criticism of the state=s sentencing policies involved the issue of sentence
disparity (Griswold, 1985). Like the structure of Florida courts, sentencing throughout the state
was characterized by high levels of variation between different jurisdictions. This Apatchwork
criminal sentencing system@ (Handberg and Holten, p. 24, 1993) resulted in some jurisdictions
sentencing much more harshly than others. In addition to disparity and variation based on locale
(which was not entirely viewed as problematic), racial and ethnic disparity also became a concern
within the state (Griset, 1996; Griswold, 1985; Handberg and Holten, 1993).
Florida’s Move to Determinate Sentencing
Florida=s first move towards a determinate sentencing system came in 1975 (Griset, 1996).
In that year, the state legislature passed its first mandatory minimum penalty, which required a
minimum sentence of three years imprisonment for anyone convicted of using a firearm in the
commission of a felony. The law became a point of controversy within the Florida government.
State legislators and judges battled over the use and propriety of the law (Handberg and Holten,
1993). Notwithstanding the vocal opposition of many judges in the state, the legislature
continued to push for determinacy. In 1976, flat time sentencing was proposed in the Florida
legislature (Handberg and Holten, 1993). Again the proposal was opposed by judges and,
ultimately, never left the legislature. Not to be deterred, a sweeping determinate sentencing bill
was drafted by the Florida legislature in 1978. The bill was modeled after California=s determinate
sentencing law and would have greatly overhauled Florida=s sentencing system. The bill would
have created determinate sentences for every category of offense, required judges to state their
reasons for aggravating or mitigating a sentence, provided for appellate review of sentences, and
stipulated increased imprisonment terms for recidivists (Handberg and Holten, 1993). Ultimately,
the governor vetoed the bill.
Regardless of the resistance to some of the determinate sentencing measures proposed by
the Florida legislature, the wheels of determinacy were in motion in the late 1970s. In 1977, the
Chief Judge of the Florida Supreme Court appointed the Judicial Planning Committee to evaluate
sentencing disparity and examine alternatives to the state=s current sentencing system (Sundberg,
Plante, and Braziel, 1983). Following the work of the Judicial Planning Committee, the Office of
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the State Courts Administrator was awarded a $270,000 grant from the National Institute of Law
Enforcement and Criminal Justice
2
and the Law Enforcement Assistance Administration to study
the ability of sentencing guidelines to reduce sentencing disparity across different jurisdictions
(Griset, 1996; Griswold, 1985; Handberg and Holten, 1993; Sundberg et al., 1983). An advisory
board, including a Florida Supreme Court Justice, four Circuit court judges, a state prosecutor, a
public defender, a private attorney, a state senator, a member of the Parole and Probation
commission, and a Florida State University criminology professor, was selected to oversee the
project (Handberg and Holten, 1993).
The project entailed implementing sentencing guidelines in 4 of Florida=s 20 judicial
circuits. The circuits were chosen based on data availability, judge cooperation, and to represent
various levels of urbanization as well as different regions within the state
3
(Sundberg et al., 1983).
The study then collected and analyzed 220 offense and offender variables for a sample of 5,100
cases from July, 1976 through June, 1979. To develop sentencing guidelines, the advisory board
identified the variables that had the greatest impact on sentences during the time-period under
study (Handberg and Holten, 1993; Sundberg et al., 1983). Those variables that were either not
statistically related to the sentence or those that were considered inappropriate and unjustifiably
related were eliminated from consideration when developing the guidelines. Finally, utilizing the
data, the advisory board developed what turned out to be six distinct sentencing guidelines; one
for each offense category (Handberg and Holten, 1993; Sundberg et al., 1983).
4
On April 15, 1981, the voluntary, experimental sentencing guidelines went into effect in
2
Now known as the National Institute of Justice
3
The following circuits were chosen (counties comprising the circuits are in parentheses): Fourth Circuit (Duval, Clay,
and Nassau); Tenth Circuit (Polk, Hardy, and Highlands); Fourteenth Circuit (Holmes, Jackson, Washington, Bay,
Calhoun, and Gulf); Fifteenth Circuit (Palm Beach) (Handberg and Holten, 1993).
4
Category One: murder, manslaughter, kidnapping, and lewd and lascivious assault; Category Two: aggravated assault,
aggravated battery, and battery of a law enforcement officer; Category Three: burglary with assault, burglary of an
occupied dwelling, structure, or conveyance, and robbery; Category Four: armed burglary and burglary of an unoccupied
dwelling, structure, or conveyance; Category Five: grand larceny and theft, dealing in and receiving stolen property,
forgery, and worthless checks; Category Six: possession, sale, delivery, and importation of a controlled substance
(Handberg and Holten, 1993).
16
the four participating judicial circuits (Griset, 1993; Sundberg et al., 1983). The experiment
lasted one year and was largely considered a success. Subsequently, work on permanent
sentencing guidelines commenced. While many observers were enthusiastic about the results of
the experimental guidelines, there was some dissension. A highly critical report based on an
evaluation of the Florida sentencing guidelines experiment, commissioned by the National
Institute of Justice (NIJ), was published after the permanent guidelines were drafted and put into
effect (Griset, 1996; Handberg and Holten, 1993). Thus the drafters of the permanent guidelines
were not aware of these criticisms. On the other hand, support for the guidelines was so strong
that the criticism probably would not have affected the creation of permanent guidelines even if
the report were available sooner (Handberg and Holten, 1993). Nevertheless, several of the
shortcomings outlined in the NIJ report would later emerge as problems for the permanent
guidelines.
Florida’s 1983 Sentencing Guidelines
Based on the perceived success of the voluntary sentencing guidelines experiment, Florida
Supreme Court Justice Alan C. Sundberg submitted a report to the Florida legislature that
supported the development and statewide implementation of permanent sentencing guidelines
(Handberg and Holten, 1993). Acting on this advice, the legislature passed a bill creating the 15-
member Florida Sentencing Commission
5
(Griset, 1996; Handberg and Holten, 1993). The bill
was signed into law on April 7, 1982. Work on the new sentencing guidelines began and
proceeded quickly. The Commission completed Florida=s new sentencing guidelines in July, 1983,
and they went into effect in October, 1983 (Griset, 1996; Griswold, 1985).
For the 1983 sentencing guidelines, the Commission expanded the number of offense
categories to nine
6
(Florida Department of Corrections, 1996; Handberg and Holten, 1993).
5
The new commission consisted of one Florida Supreme Court Justice who served as chairperson, two members of
Florida Senate, two members of the Florida House, three Florida Circuit Court judges, one Florida state attorney, one
Florida public defender, one private attorney, the Attorney General=s office, and two lay persons selected by the
Governor (Handberg and Holten, 1993; Sundberg et al., 1983).
6
Category 1: Murder, Manslaughter (excluding capital offenses); Category 2: Sexual Offenses; Category 3: Robbery;
17
Unlike other states that had developed sentencing guidelines using a single scoring matrix (i.e.
Minnesota), Florida=s guidelines entailed three separate scoring grids for each of the nine offense
categories (Griset, 1996; Handberg and Holten, 1993). One grid was used for scoring primary
offenses, one for additional offenses, and one for prior record. Two additional factors, legal
status at the time of the offense and victim injury, were included in the scoring of offenses
(Griswold, 1985; Handberg and Holten, 1993). If the offense involved physical injury to the
victim or if the offender was under any legal restriction for a prior offense, points were added to
the guidelines score. The scores for each of the grids, plus the two additional factors, were
summed to indicate the offender=s sentence. Point ranges were designated for each offense
category, which indicated whether and for how long offenders would be incarcerated (Griswold,
1985). Judges were permitted to depart from the narrow ranges provided they included written
explanations for their aggravating or mitigating departures (Griswold, 1985).
In addition to creating the 1983 sentencing guidelines, Florida also eliminated
discretionary parole release as part of the move from indeterminacy to determinate sentencing
(Griset, 1996). At the same time, policymakers added basic gain time, incentive gain time, and
meritorious gain time provisions to their new sentencing scheme (Griset, 1996; 1999). With the
creation of the sentencing guidelines and the elimination of parole release, Florida had completed
the transition from indeterminate to determinate sentencing. The success of that transition was
still very much up for debate.
Opposition to the guidelines. Proponents of the 1983 sentencing guidelines argued that
the guidelines would bring about a newfound truth in sentencing and would reduce unwarranted
sentencing disparity (Griset, 1996; 1999; Griswold, 1989). From the start, there was also
opposition to the new sentencing guidelines. State prosecuting attorneys, including their
representative on the Sentencing Commission, were largely opposed to the guidelines both before
and after their implementation (Griset, 1999; Handberg and Holten, 1993). In fact, several state
attorneys filed a brief with the Florida Supreme Court in an unsuccessful attempt to block the
Category 4: Violent Personal Crimes; Category 5: Burglary; Category 6: Theft, Forgery, Fraud; Category 7: Drugs;
Category 8: Weapons; Category 9: Other Felony Offenses
18
guidelines from taking effect. Their opposition centered mainly on the detrimental impact the
guidelines would have on the plea bargaining process (Handberg and Holten, 1993). The
prosecutors= antagonism toward the sentencing guidelines continued through the first years of the
guidelines and was ultimately influential in many of the modifications to the guidelines that would
later occur (Griset, 1999).
Nevertheless, the guidelines went ahead as planned, with continued criticism aimed in their
direction. Additional reprehension involved the lack of philosophical justification for the
sentencing guidelines (Griswold, 1985; Handberg and Holten, 1993). No single rationale was
employed during the drafting of the guidelines. The drafters of the guidelines seemed to support a
retributionist or just deserts-based approach, but did not rule out other philosophies. They stated
that Athe primary purpose of sentencing is to punish the offender. Rehabilitation and other
traditional considerations continue to be desired goals of the criminal justice system but must
assume a subordinate role@ (Rule 3.701, cited in Griswold, 1985, p. 27). The guidelines,
therefore, did not strictly adhere to a just deserts philosophy because an offender convicted of a
less serious crime could be sentenced more severely than an offender convicted of a more serious
crime based on his or her prior record and other considerations (Griswold, 1985). Moreover, the
inclusion of prior record as a factor in determining punishment is justified by the goal of
incapacitation, not retribution.
The failure of the Commission to pinpoint a single philosophical justification for their new
sentencing policy was not accidental. Actually, Aphilosophical discussions were deemed unlikely
to be fruitful and in fact inflammatory@ (Handberg and Holten, 1993, p. 32) to the process.
Instead, the Commission based its sentencing guidelines on mean values of historical sentences.
This, in turn, led to more criticism of the guidelines.
Because sentencing patterns in the Miami-Dade area Judicial Circuit, considered highly
liberal and influential due to its large number of caseloads, were utilized to establish the
guidelines, opponents of the guidelines in more conservative areas complained that the new
guidelines were too lenient (Handberg and Holten, 1993). This kind of opposition was not
surprising given Florida=s propensity towards punitiveness with regard to crime and criminal
justice issues (Handberg and Holten, 1993). In fact, calls for increased severity in the punishment
19
of offenders initiated most of the coming alterations to the sentencing guidelines throughout the
next two decades.
Two additional developments engendered the ill feelings towards the sentencing guidelines
during their first years of operation. The first involved the gain time provisions that were enacted
as part of the guidelines (Griset, 1996). As part of the 1983 Sentencing Guidelines, basic gain
time was increased to ten days per month of an offender’s prison sentence, which automatically
reduced an offender=s prison sentence by one-third the day he or she began the sentence (Griset,
1996; Griswold, 1989). Incentive gain time was raised to a possibility of 20 days for each month
served in prison (Griswold, 1989). Meritorious gain time of up to 60 days, granted to inmates
who performed an outstanding deed while incarcerated, was now available (Griswold, 1989).
Finally, an emergency release provision was also incorporated into the new sentencing policy.
The provision allowed for the early release of eligible offenders if the correctional system
exceeded 98% of its capacity (Griswold, 1989). Much to the chagrin of tough-on-crime policy
makers and prosecutors, these early release policies led to a situation where, in the first years after
the guidelines were implemented, the average sentenced served by offenders amounted to 51% of
the sentence imposed (Handberg and Holten, 1993). It seemed to many that the Atruth in
sentencing@ that was promised had not been realized.
Another point of contention for opponents of the guidelines, most notably judges,
involved appellate review of departures from the guideline sentence. Appellate review of
departures began almost immediately after the guidelines went into effect (Handberg and Holten,
1993). Through this review process, the appellate courts curtailed trial judges discretion in three
distinct ways. First, they required the same standard of proof for guidelines departures as that
needed for conviction. Second, appellate courts limited the reasons allowable for departures to
those not already accounted for in the guidelines scoring. Third, they ruled that if more than one
rationale for departing from the sentence existed, each had to satisfy the above limitations
(Handberg and Holten, 1993). These decisions made departures from the guidelines, specifically
upward departures, more difficult, which only added fuel to those opposed to the leniency they
viewed as inherent in the guidelines (Handberg and Holten, 1993).
Revisions to the 1983 sentencing guidelines. After only a few years of sentencing under
20
the 1983 guidelines, criticism and calls for reform were rampant (Handberg and Holten, 1993).
Several changes in the guidelines occurred rather quickly after implementation. In mid-1984 six
major alterations were enacted that increased the severity of the guidelines (Griswold, 1989).
First, one revision required separate scoresheets be prepared for each offense when the offender
was involved in multiple offenses. The sentencing judge was then required to use the scoresheet
that recommended the most severe sentence. Second, if the offense being sentenced involved a
probation or community control violation, the judge was now permitted to increase the sentence
to fall within the range of the next higher cell on the guidelines than that which was indicated by
summing the guidelines points. Third, if a split sentence were to be imposed (prison plus
probation), the prison portion of the sentence was not permitted to be less than that recommended
by the guidelines. Previously, the combination of prison and probation was allowed to be the
minimum of the recommended sentence. Fourth, the point totals for sexual offenses was
increased. The final two changes involved prior record. More prior juvenile convictions were
now eligible to be considered in calculating sentences and additional points were added to fourth
and fifth prior adult convictions (Griswold, 1989).
By 1986, the Sentencing Commission was ready to increase the severity of the guidelines
once again (Handberg and Holten, 1993). Points for burglary convictions were increased.
Scoring for drug offenses was adjusted to make imprisonment of cocaine dealers easier. Inclusion
of points for victim injury was made easier (Handberg and Holten, 1993). In addition, split
sentences and penalties for probation violations and alcohol-related offenses were once again
made more severe (Griswold, 1989).
These increases in guidelines severity only furthered the prison overcrowding concerns
that had existed since the implementation of the guidelines (Griset, 1996). Therefore,
administrative gain time, later changed to provisional gain time, was introduced in addition to
basic, incentive, and meritorious gain time. This allowed prison officials to add up to 90 days of
gain time when prison capacity reached 97.5% (Griset, 1996; Griswold, 1989).
Regardless of the attempts to counteract the guidelines= increased potential for
engendering prison overcrowding by expanding gain time allowances, Florida=s prison population
continued to grow under the 1983 Sentencing Guidelines. From fiscal year 1983-1984, when the
21
guidelines were enacted, until fiscal year 1990-1991, the prison population in Florida increased by
75% (Handberg and Holten, 1993). At nearly the same time, the average of the imposed sentence
that was actually served fell from a high of 53% in 1987 to a low of 31% in 1992 (Griset, 1999).
On the other hand, many offenders who had been sentenced under new mandatory sentencing
statutes
7
(Bales and Dees, 1992) were not eligible for some of the gain time provisions provided
in the sentencing guidelines (Griset, 1999). Something clearly had to give.
Florida’s 1994 Sentencing Guidelines
Buildup to reform. By the late 1980s, Florida=s sentencing guidelines were increasingly
criticized. Notwithstanding the alterations that had been made in an effort to increase the severity
of sentencing, state prosecutors were becoming more and more vocal in their protests regarding
the guidelines (Griset, 1999; Handberg and Holten, 1993). In 1987 and 1988, a group of
prosecutors launched a public relations campaign advocating the abolition of the sentencing
guidelines altogether. Soon thereafter, some judges and legislators began supporting the notion
of major reform and possible dismantling of the state=s sentencing guidelines (Handberg and
Holten, 1993). Both the legislature and the governor reacted to the growing disenchantment.
First, in 1988 the legislature passed a bill that once again increased sentencing severity
(Handberg and Holten, 1993). Focusing more on prosecutorial complaints about leniency rather
than prison overcrowding, the legislature made more offenders eligible for imprisonment under
the guidelines and allowed increases or decreases on the guidelines grid permissible without
appellate review. The lawmakers also removed offenders who were sentenced as habitual
offenders or habitual violent offenders from the coverage of the sentencing guidelines. This
change doubled the possible incarceration period for these offenders (Handberg and Holten,
1993). These modifications were, not surprisingly, supported by Florida=s prosecuting attorneys.
The legislature also directed the Sentencing Commission and its own Economic and
Demographic Research Division (EDR) to draft a new set of sentencing guidelines (Griset, 1999;
Handberg and Holten, 1993). Both the EDR’s and the Commission=s charge was to develop new
7
By 1990, ten different mandatory minimum sentences were available.
22
guidelines that stressed imprisonment of serious offenders, increased penalties for repeat
offenders, outlined reasons for departures, identified offenders eligible for non-incarcerative
sentences, and also estimated the effects the new guidelines would have on incarceration rates
(Handberg and Holten, 1993). The Sentencing Commission and the EDR began their work
revising the guidelines in 1988. Essentially, the two groups coordinated their efforts to examine
the current guidelines and develop new sentencing guidelines.
Also in 1988, Florida=s governor appointed a Crime Prevention and Law Enforcement
Commission to examine several criminal justice issues, including sentencing-related problems
(Handberg and Holten, 1993). This commission considered recommending the abolition of the
sentencing guidelines, but ultimately advised continuation of the guidelines. The most pertinent
contribution of the Commission was the creation of the Control Release Authority (Handberg and
Holten, 1993). In 1989, the Control Release Authority took over the process of determining early
release for offenders (Griset, 1999). The Parole Commission acted as the Control Release
Authority (W. D. Bales, personal communication, November 16, 2004). Thus, in just six years,
Florida=s determinate sentencing system had resorted back to discretionary release of offenders,
one of the lynchpins of indeterminate sentencing. In practice, this meant that the state=s
sentencing system was determinate at the front end, but indeterminate at the back end. In other
words, judges= discretion was limited, but offenders were once again not serving fixed sentences.
New guidelines enacted. In late 1991, the Sentencing Commission=s revised guidelines
were submitted to the legislature (Griset, 1996), as was the Economic and Demographic Research
Division=s report (Economic and Demographic Research Division, 1991). The EDR report
outlined several problems with the 1983 Guidelines and their revisions. Among them were 1) the
failure of the guidelines to reconcile truth-in-sentencing and prison capacity; 2) the inability of the
guidelines to adjust to changing policy goals; 3) greater consequences of prior record over current
offense in the determination of penalty for some crimes; 4) ambiguity surrounding Category Nine
(Aother@) offenses; and 5) reintroduced disparity among Florida=s judicial circuits (Economic and
Demographic Research Division, 1991). The EDR=s proposed guidelines structure was intended
to correct these shortcomings. The 1992 Florida Legislature did not act on the proposals. This
inaction was due in part to the complicated agenda for that year and partly due to opposition to
23
revising the guidelines and disagreement over how to revise them (Handberg and Holten, 1993).
Nevertheless, the legislature met in a special session in May, 1993, and enacted new sentencing
guidelines based on the EDR report and many of the recommendations made by the Sentencing
Commission (Griset, 1999). The new sentencing guidelines, part of the ASafe Streets Act@ went
into effect in January, 1994 (Florida Corrections Commission, 2000).
The 1994 Sentencing Guidelines were intended to achieve several goals. Among them
were to: 1) incarcerate violent and repeat offenders; 2) eliminate unwarranted disparity and make
sentencing neutral with respect to race; 3) equate the punishment with the severity of primary
offense and the offender=s prior record; 4) eliminate certain gain time provisions and ensure that
the sentence imposed represents the actual time served; 5) require written justifications for
departures from the recommended sentences; 6) articulate that the primary purpose of sentencing
is to punish the offender (Florida Department of Corrections, 1996; 1997). Many of the goals of
the new guidelines were similar in nature to the original guidelines. There were also major
differences in the format of the two guidelines.
The 1994 Sentencing Guidelines abandoned the complicated multiple-grid format used by
the 1983 Guidelines (Griset, 1996). The new guidelines utilized a point system, much like the
successful Minnesota-style guidelines already in place in Minnesota, Washington, and Oregon
(Griset, 1999). The point system provided for three categories of sanctions: mandated prison
sanction, discretionary prison or non-prison sanction, and mandated non-prison sanction (Florida
Department of Corrections, 1996). Offenders receiving under 40 guidelines points were required
to be sentenced to a non-prison sanction. Those receiving between 40 and 52 points could be
sentenced to prison or to a non-prison sanction at the discretion of the judge. Offenders receiving
over 52 points were required to be sentenced to prison (Florida Department of Corrections,
1996). Sentences could then be increased by 25% at the discretion of the judge.
In addition, the 1994 Guidelines abolished basic gain time altogether (Griset, 1999). This
measure was taken in an effort to answer the criticism that sentencing under the previous
guidelines failed to accomplish Atruth in sentencing.@ On the other hand, the elimination of basic
gain time would not help ease, and could have multiplied, the prison overcrowding problems
facing Florida. In an effort to dispel this possibility, the new sentencing guidelines were explicitly
24
linked with correctional resources (Griset, 1996; 1999). Therefore, the legislature appropriated
funds to increase prison capacity through building new correctional facilities (Griset, 1999).
Nearly 24,000 new prison beds were made available over the next two years (1993-1995) (Griset,
1999).
Continued opposition. State prosecutors, who were vocally critical of the first
sentencing guidelines from their inception, were opposed to replacing the guidelines with new
ones (Griset, 1996; 1999). Through all of the revisions in the 1983 Guidelines, prosecutors had
accomplished many of their goals, including more discretion and increased severity that proved
useful for plea bargaining. The new guidelines, claimed prosecutors, were too lenient and
provided too many opportunities for offenders to escape imprisonment (Griset, 1996). Unable to
prevent the passage of the new guidelines, their opposition continued after the 1994 Guidelines
were enacted. The prosecutors= cause was bolstered by a series of high-profile crimes including
several murders of tourists and the murder of a police officer by an early-released offender
(Griset, 1999).
In response to the public fear of crime and prosecutorial antagonism, the legislature met in
another special session in 1995 to once again revise the sentencing guidelines (Griset, 1999).
Lawmakers passed the Crime Control Act of 1995, which has often been touted as the 1995
Sentencing Guidelines (Florida Corrections Commission, 2000; Griset, 1999). The 1994
Sentencing Guidelines= structure remained intact, but point values were increased for 40 crimes
(Florida Corrections Commission, 2000; Griset, 1999). The legislature also passed the Truth in
Sentencing Law during the 1995 special session (Florida Department of Corrections, 2003b). The
law required that all offenders who commit crimes on or after October 1, 1995 serve a minimum
of 85% of their imposed sentence. In both 1996 and 1997, the guidelines were again modified to
increase sentencing severity (Florida Corrections Commission, 2000). Nevertheless, prosecutors
and legislators continued to complain that the guidelines were too lenient (Griset, 1999). At the
same time, judges were consistently mitigating sentences under the new guidelines. Thus, while
judges were exhibiting, through their sentencing decisions, their position that the guidelines were
often too harsh, prosecutors and policymakers were arguing for increased severity (Griset, 1999).
By 1997, the turmoil and controversy surrounding the sentencing guidelines led to widespread
25
calls for abolishing the guidelines (Griset, 1999).
Florida’s Criminal Punishment Code
The move to abolish sentencing guidelines. Calls for the repeal of the sentencing
guidelines were nothing new. Groups representing Florida Prosecutors and Sheriffs and the State
Attorney General all petitioned the legislature to abolish the sentencing guidelines at some point in
their existence (Griset, 1999). Several bills were introduced in an attempt to accomplish that
goal, but not until 1997 did the effort seem likely to succeed. Griset (1999) argues that abolition
of the guidelines became more likely in 1997 for two reasons. First, due to the increased spending
on prison construction, there were now more prison beds than there were prisoners in Florida.
This meant that concerns about prison overcrowding, which had helped spur the move towards
sentencing guidelines in the early 1980s, no longer restricted sentencing policy. The second
occurrence that made repeal of the guidelines more likely was when Republicans took control of
the Florida legislature after the 1996 elections. Many of the now-majority Republican party in
Florida were supportive of more punitive sentencing. Since the 1994 Sentencing Guidelines, even
with their revisions, were viewed as too lenient, Griset (1999) contends that Republic proponents
of increased punitiveness were prepared to repeal the guidelines.
Much of the criticism surrounding the guidelines involved the difficulty of aggravating or
increasing an offender=s sentence beyond what was recommended in the guidelines (Griset, 1999).
On the other hand, prosecutors and policymakers were also concerned about the high mitigation
rates that were occurring throughout Florida, especially in the south (Griset, 1999; Griswold and
Dobrin, 2000). For example, mitigation rates in the state were as high as 56.5% and for Miami
(Dade County) the mitigation rates were as high as 73.6% (Griset, 1999). Proponents of
increased punitiveness in sentencing, while critical of the sentencing guidelines as being too
lenient, were fearful that repealing the guidelines would leave no restraints on judges who favored
less severe sentences (Griset, 1999).
Creation of the Criminal Punishment Code. Prosecutors in the Eleventh Judicial
Circuit (Dade County), reluctant to see the lower limits on sentences removed, engaged in an all-
night conference during the 1997 legislative session to draft an alternative to both the sentencing
26
guidelines and complete abolition (Griset, 1999). Their proposal was introduced to other
prosecutors and to other groups supporting the repeal of the guidelines and quickly gained favor.
This draft became the Criminal Punishment Code (Griset, 1999). The new sentencing policy went
into effect on October 1, 1998.
Fundamentally, the purported goals of the new Criminal Punishment Code (Code) were
not unlike the goals of previous sentencing policies (Florida Department of Corrections, 1999).
Among the objectives of the CPC were to reduce unwarranted disparity in sentencing, emphasize
punishment as the purpose of sentencing, and equate sanctions with the seriousness of the current
offense and the offender=s prior criminal record (Griswold and Dobrin, 2000). Thus, the goals of
the various sentencing systems in Florida had remained relatively constant. With the CPC, the
mechanism for achieving those goals had nearly come full circle.
Compared to the two sentencing guidelines that had governed sentencing in Florida for the
previous 15 years, the CPC represented a significant alteration in sentencing policy (Florida
Department of Corrections, 1999). In many respects, the CPC maintained some deterministic
features. There were also some features of indeterminacy associated with the Criminal
Punishment Code.
Perhaps the most substantial change from the sentencing guidelines was the broadening of
upward discretion in the Criminal Punishment Code (Florida Department of Corrections, 1999).
The CPC still used the point system of the 1994 Sentencing Guidelines, but removed the
guidelines= upper limits on sentences and, instead, set the maximum penalty for a crime at the
statutory limit. In Florida, felonies are divided into five levels: capital, life, and first-, second-, and
third-degrees (Griset, 2002). The statutory felony levels represented an increase in punitiveness
for virtually all crimes and cases compared to the 1994 guidelines (Florida Department of
Corrections, 1999; Griset, 1999). Specifically, the maximum prison sentences allowed under the
Criminal Punishment Code were five years for a third degree felony, 15 years for a second degree
felony, 30 years for a first degree felony, natural life for a life felony, and life or death for a capital
felony (Florida Department of Corrections, 1999; Griset, 1999; 2002).
The CPC also altered the lower threshold of the sentencing guidelines= point system.
Under the 1994 Guidelines, offenders who scored 40 points or less were recommended to be
27
sentenced to a non-prison sanction. The guidelines recommended that offenders who scored 52
points or more be sentenced to prison. Offenders scoring between 40 and 52 points could be
sentenced to either prison or a non-prison sanction at the discretion of the court. Under the CPC,
the prison/non-prison cutoff point was lowered from 52 to 44 points (Florida Department of
Corrections, 1999). Offenders who scored 44 points or less could be sentenced to anywhere
between a non-prison sanction and the statutory maximum prison sentence. Offenders who
scored over 44 points were required to be sentenced to prison, up to the statutory maximum.
Mitigating (downward) departures, which were appealable by the state, were still possible under
the CPC with written justification from the judge (Griset, 1999; 2002).
The Criminal Punishment Code also abolished Florida=s Sentencing Guidelines
Commission (Griset, 1999). What had not changed was the abolition of parole or control release
(Griset, 1999; 2002). Offenders could still earn