FLORIDA PRISON LEGAL

ers ectives
VOLUME 8, ISSUE 4

JULY/AUG 2002

ISSN# 1091-8094

campaign accounts for the 2000
election,· including· Bush for
President.
. With such credentials, it
cannot be disputed that Aramark,
with a 176.5 million dollar net
by Oscar Hanson and
. Sheni Johnson
. income for fiscal year 2001~ is. a
leader in food service vending.
Aramark Corporation, a
While Aramark lias many satisfied
leading player in the "outsourcing"
customers, something is ~iss with
one of its major customers:· florida
business, manages food service
facilities throughout the nation for
prisons.
such .companies as Boeing. Los
.
In 2001, Aramark contracted
with the Florida' Deparonent of
Angeles Convention Center, Duke
Corrections to provide food. service
University, Oriole Park at Camden
Yards, and in II state prison
operations in 126 kitchens within the
systems. Florida is among the II
DOC. The five-year 58 million
dollar deal is projeCted to cut the
prison systems. Florida contracts
with Aramark to provide food
state's prison food costs from 80.2
service for approximately· 63,000
million in 2000 - 2001 to 72.2
million in the 2001 - 2002 fiscal
prisoners.
.
year. Aramark provides meals at a
It is notable to recognize that
Aramark ranks No. I in.the
cost of $2.32 per inmate each day.
How is Aramark managing to save
outsourcing category of F~rtune
. Magazine's 2002 list of "America's
the state miilions while earning the
same? The answer will not surprise
Most
Admired
Companies:'
most Florida prisoners, but .may
Aramark provided food service· for
the 2000 Republican National
shock the conscience of those
Convention, and its top executives . beyond the prison fence..
gave thousands to Republican

ARAMARK
MISSESTHE·
MARK

R,ecently the St. Petersburg
. Times exposed unscrupulous acts of
the Aramark Corporation.
At
Madison CorreCtional Institute,
Corrections Captain Hugh Poppell
noticed the featured entree of sloppy
joes was particularly soupy. Further .
investigation revealed that Aramark
staff had diluted the entree several
.times, adding ketchup and tomato
paste to make it stretch among the
700-plus inmates still lined up .to be
fed. The Warden was summoned {
and his investigation revealed that \.
the recipe had been shorted by 70 \
pounds of ground beef and turkey. . "
The other ingredients such as onions,
celery and green peppers were
. completely absent in the entree.
This is just one of many food
episodes revealed by the St.
Petersburg Times.
Other scenes from the
Aramark kitchen include: In. Marion
County, inmate kitchen workers, on
orders. from an Aramarksupervisor,
soaked spoiled chicken in vinegar
and water to take away the smell
before cooking. Corrections officers
I

FAMlUESADVOCAlES PRISONERS

~

~
.

UNrrED FOR. PRISON REFORM

Jury, Not Judge, Death DeCIsions ........•....•......••...•........•...•...•.. 4

Exonerated by Science

;..........•. ~

Around the System
,
Notable Cases
'
:
The Florida Parole Game, Part One
Harsher Imprisonment for Sex Offenders Okay

6

~

~

:... ...

9 ~ """,j
14 W;:1
19' .
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- - - - - - - - - - - - - - - FLORIDA PRISON LEGAL

Perspectives - - - - - - - - - - - - - - -

u
FLORIDA PRISON LEGAL

PERSPECTIVES
P.O. Box 660-387
C"uluota, Florida 32766
Publishing Division of:

FLORIDA PRISONERS' LEGAL AID
ORG., INC
A 501(0)(3) Non ProfttOrganizatlon
Fax (401) S68.()200 ,
Email: fplp@aol.coni
Website: www.fplao.org

FPLAO DIRECTORS'
TeresitA. Burns-Posey
Bob G. Posey. CPL
Damll E. Blackwelder, CPL
David W. Bauer. Esq.
Loren D. Rhoton, Esq.
Oscar Hanson, CPL
Linda Hanson

FPLPSTAFF
Publisher
Editor
Co-cdltor
Racan:h
Administrative Assistant

TcrcsaA. Bums-Posey
DobO.Posey
Oscar Hanson
Shari Johnson
Darrell E. Blackwelder

FPLP ADVISORY BOARD
William Van Poyck
Philip Bagley-Terry Vaughn
Miclulcl Lambrix-1amcs Quigley
Linda Oottlicb-S'!S8D Manning
Enrique Diaz-Gcnc Salicr

Michael PaImcr-Mark Sherwood
, TrishMills

found out and ordered 500 pieces of
chicken thrown out.
In
Brevard'
County,
inspectors found maggots on serving
trays and kitchen floors.
In Indian River County~ inmate
workers struggled one morning to
cook pancakes while an Aramark
supervisor was fo~d sleeping at his
computer terminal.
In
Putnam'
County,
corrections officers disc.overed, pans
of refrigerated food, with altered
dates, a serious infraction that
sparked a major investigation.
Officials suspected Aramark was
subverting the prison system~s strict
rules on using leftovers - rules
'intended to prevent' mass inmate
sickness.
, . In
Hernando
County~
officers discovered that Aramark
prepared a spaghetti dinner using old
chili con carne from the previous
week and creamed beef from the day
The c~ sauce was
before.
washed'offand the beef reused.
At an Avon Park work camp~
inmates complained when the pork
,roast servings were the size of
·,saltines.
In Sumter County~ Aramark'
, .habitually deviated from the master
men~ preparing food in a manner
not consistent with the required
method, . constant food shortages
resulting in long delays~ and
unauthorized food substitutes.
Though Aramark bOasts that
it has saved' money for Flori~ its
methods,' have raised a new set of
concerns for frontline corrections
officials. Dirty kitchens that in one
county produced maggots, frequent
cooking delays that throw off prison
schedules. food quality that often fatl
beneath expectations and a chronic
inability to follow state rules and
regulations are among the concerns
raised by corrections officials. As a
result of Aramark's actions, the state
has assessed Stt0,000 in fines
against the corporation.

FDOC inspection reports
disclosed by the St. Petersburg
, Times describe Ara'mark kitchens as
"filthy" and in one
case~
"horrendous." Other reports reveal
that Aramark employees were
constantly late for work and iIi some
cases didn't show up at all~ leaving
corrections officers to start preparing
meats.
Shortly before signing with
Aramark, Florida_ prison officials
were made aware of, similar
problems at an Aramark-run prison
food service in Ohio. There, an
inspection team found "inexcusable"
sanitation problems and "observed a
near riot during breakfast as a result
of Aramark~s strict compliance with
portion' sizes."
So vigilant is
Aramark~s
cost-cutting
that
supervisors are tnlined to order
workerS to scoQP food from pans in a
way that wouldn't jam too much
food into the ladle notwithstanding
mandated
size
portions
the
established by 'state dietitians. the
Ohio investigation team suggested
Aramark" should be liable .for
, damages as a result of the lack of
training, cleanin~ and maintenance."
Ohio~s contract with Aramark was
not renewed.
On its website, Aramark
promises to reduce the costs of its
customers
without
corrections
"shortcuts" or a drop in quality. It
boasts ofa computerized recipe and
. menu system that reduces waste and
prevents. the ord~ng of excess
meals.
- Ohio was not the only state
to experience problems with
Aramark.
In August 2001 a
Wisconsin state lab'" confinned that
S5 prisoners in the Winnebago
County Jail had been poisoned by
salmonella-tainted 'food.
The
country~s health director said
analysis found salmonella strains CI and C-2 in spaghetti that had been
served to the jtul's prisoners.
Several prisoners had to., be
hospitalized
with
salmonella

2-------

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- - - - - - - - - - - - - - FLORIDA PRISON LEGAL

Perspeqtives - - - - - - - - -

poisoning.
The county sheriff's
As corrections officers will
department
confmned
that
readily tell you, in a world where
foodservice at the jail is handled by · eating is perhaps the day's only
pleasure, if prisoners are not
Aramark Inc., a Philadelphia:based
food service corporation. Aramark · properly fed the potential for riot
was hired in 2000 to take over the
exists. "It's an officer safety issue, "
said Shopp, referring to Aramark's
jail's food service. The $7.8 billion
company was low bidder for the jail
food episodes. "It's just a situation
that I'm afraid will eventually go
contract. Sheriff Michael Brooks
said he couldn't justify spending
awry."
more taxpayer funds on prisoner
Though prisoners have
meals than necesslU)'. Doug Warner P complained, "there have been no
of Aramark said his company prides
security incidents whatsoever," said
itself on its sanitary preparation and
Elizabeth Hirst, a spokeswomllQ for
Gov. Bush. That may depend on
handling of food and is careful to
avoid food-borne illness threats.
which side the fence you are on.
In Florida, however, the
In February, in an unuSual
problems have been caused by not
show of unity among Florida's new
age prisoners, prisoners at a major
On many days
enough meals.
institution in Hardee County staged a
Aramark runs out of food leaving
many inmates in line for 20 - 30
one-day food strike.
In Jackson County, where
minutes while additional food is
prisoners recently received wateredprepared. Often, the hastily prepared
food has no relationship to the day's
down roast pork, cold spaghetti,
scheduled menu,· a violation of the
undercooked meat and watered jelly
in place of pancake syrup, there was
rule. that mandates consistency.
"tension in the dining hall" when
Aramark's methodology for
earning millions from the corrections
Aramark served crumbled cake that
system is not complex.
First, · had to be served by spoon, a
Aramark is fully aware that
corrections officer wrote in a report.
When Aramark served up
complaints of prisoners will rarely
imdercooked potatoes and grits to
reach beyond the fences ofthe prison
confinement prisoners at a Walton
so they are not a potential threat to
County institution, an officer
the company's operations. Second,
Aramark is paid for each inmate
reported, they "began to yell. Rattle
! listed on the institution's daily roster
cell doors and became disorderly."
Hirst
discounted
such
regardless whether each inmate visits
incidents. "There have not been any
the chow hall for their meals.
riots or lives in jeopardy. The
Consequently, Aramark habitually
inmates are not always 'pleased with
• under prepares the number of meals
the food, but that's going to happen
by anticipating only a portion of the
from time to time.... No one's going
prison population.
hungry," Hirst said.
Al
Shopp, a former
"We're
almost
always
corrections officer who now
monitors working conditions in
hungry since Aramark' took over,"
said one prisoner at a Sumter County .
prisons for the Florida Police
prison, who asked not to be
Benevolent. Association, said that
identified for fear of retaliation. "]'d
Aramark too often gambles on a
estimate that a good third of the food
lower inmate turnout at each meal.
isn't edible, undercooked, poorly
Too often, he said, corrections
prepared or spoiled," the prisoner
officers are forced to intervene when
told an FPLP reporter. "If you don't
quality is low or the portions too
have money to eat out ofthe canteen,
small. In effect, Shopp said, they
and the prices there keep .going up
"prop up" Aramark.

3---.;.

_

arid up, then you either go hungry
most of the time or get it the best
way· you can. A.lot of food stealing
and selling goes on, guys just trying
to survive."
Burns-Posey,
Teresa
chairperson of Florida Prisoners'
Legal Aid Organization that is.based
in Orlando, said the situation is
actually more complex that recently
reported in the St.. Petersburg TImes.
The problems being reported against
Aramark now are nothing new, she
said, the same problems existed
when the Department of Corrections
ran the .kitchens; only then they
weren't officially reported by
inspecting corrections
officers
against their fellow officers running
food' service.
"There's a lot of disgruntled
state prison employees right now,"
Bums-Posey said. "They would like
to see Anuilark fail." They see any
privatization as a tJ.ueat and believe
if Aramark can be forced to pull out
then they can keep privatization from
spreading further in Florida's
prisons, according to Bums-Posey.
That view would support
why shortly after Aramark took over
food service at most of Florida's
prisons the FDOC suddenly revised
its rules· concerning food service
operations, making the rules much
stricter. It might also account for
why the administration at a major
institution in Lake County uses food
service job assignments for prisoners
as punishment. There, records show,
the prisoners with the .worst
disciplinary histories are forced to
work in food service, placing the
burden of trying to control such
prisoners directly on Aramark
employees who are not trained as
corrections officers.
Commenting on Ar8mark's
history in Florida's prisons so far,
Sterling Ivey, the FOOC's new
public relations director, said, "It
was a bumpy start," but, "We feel
like we're' moving in the right
direction."

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---=-------------- FLORIDA PRISON LEGAL Perspectives

FOOD STRIKE SUCCESS

propose in IIll)' DlllIllIa' tIuII food strikes me I!te solution 10
food prolIlcms, We, like Ihe TImes, ore mcreIy rcponiDS
news. If we were 10 IUIJ8C$1 a solution il W1luId Iikdy be
tiligalion. HUDdmIs of coun cmos fiJcd asainsl AnmIrl<.'
dIIIt I!tey would haw 10 defend with !heir owp law)u's III
sreat C05l 10 IhC company. prcbahIy would ha~, a
sijpUlic:ant itnpaal •

2, "Wheel of Death: Florida's Other
Lottery Game.")
Already debate has started in
Florida about the court's ruling and
how many death-row prisoners may
be affected by it. Some prosecutors
claim it will affect only a small
by Teresa Bums-Posey
number" while some defense
attorneys claim it could affect the
WASHINGTON - In a 7-2 decision
majority cit Florida's 373 death-row
handed down by the U,S. Supreme
prisoners.
Court on June 24, 2002, the high ,
Supreme Court Justice Ruth
court ruled that juries, not judges,
Bader Ginberg, writing for the
must decide whether there are
majority of the court, made clear the
aggravating factors that warrant the
extent of the ruling, stating, "This
imposition of the death ,penalty. The
case presents a question of who
decision
throws
into
doubt
decides; judge or jury. The context
potentially hundreds of death
is capital murder; the issue. life or
sentences in nine states, including
death.... Capital defendants.... are
Florida, where either judges alone
entitled to a jury determination of
decide whether factors exist to
any fact" that increases their
justify a death sentence or where
punishment.
judges can· override a jury's
Justice
Sandra
Day
,recommendation of life and impose
O'Conrier, who dissented ftom the
the death penalty.
majority's ruling, said the decision
In this latest ruling, that
will unleash a rash of claims by
strikes a blow against disparity in
defense attorneys.
But, she
capital punishment, an unusually
predicted, most will be unsuccessful
united Supreme Court h~ld that
because the prisoners are either too
allowing judges, instead of juries, to
far along in the appeal process to
detennine whether factors exist to
raise new claims on this new
impose the death sentence violates
decision or will be unable to show
defendants' right to a jury trial as
how they were harmed by being
guaranteed by the Sixth Amendment.
sentenced under the old procedure,.
The decision is expected to
have an impact on death-sentenced
prisoner's sentences in Arizona,
Idaho,
Montana,
Nebraska,
ATrENTION PRISONERS
Colorado, Florida, Alabama, Indiana
and Delaware. The impact may be
Have you ever requested the production
less in those latter four states as they
of witnesses or evidcnce at '8 disciplinary
hearing and been denied that production? If
allow the jury to make a
so,
did you grieve that denial ofdue process
recommendation on whether the
or proceed to a court action?
death sentence should be imposed or
A court action is currently pending that
not but then its up to the judge to
challenges such due process 'violations. If
make the' finai decision. In cases
you ever filed a grievance or court action on
this issue, please provide us an outline of
where the judge followed a jurythe relevant facts. Ifyou still do not possess
recommended death sentence there
your grievances or court pleadings, we can
may not be 11 conflict with this latest
obtain copies with your information.
Supreme Court decision.
If the
Contact:
Super/a,. Invest/gotjona ofFlorldil
judge
overruled
the
jury's
A//n: Due p,.ocen Suit
recommendation against the death
PO Box 384
penalty, however, this new ruling
New Pm Richey, FL 334654
will likely require the sentence to be
thrown out. (See FPLP, Vol. 8, Iss.

JURY, NOT
JUDGE, MUST
MAKE DEATH
DECISION

[Sources:
St. PeterSburg Times,
6/17/02; The Northwestern, 8129/01;
FDOC records; interviews].
On July 2 the St. Petenburg Times ran an
editorial entitled "PriS0119 need better food
service" that complimented that paper's June 17
article C()nceming Anunark and the problems
that C()mpany has been experiencing inf1orida's
prisons. (See above article.) FDOC Secretary
Michael Moore was quick to respond with a
letter to the Times' editor that was part spin
control and part veiled threat
Moore emphasized in his letter, that the
Tunes printed, how much money has been saved
taxpayers by Aramark taking over prison food
services. He also nOled. thaI Aramark was only
given 90 days 10 move into and take over food
service operations at 126 C()rrectlonal facilities,
but failed to explain why such a short period
was allowed for such a massive undertaking. He
made no mention that Gov. Jeb Bush basically
ordered the FOOC to give the contract to
Aramark - inunediately.
Perlutps mosl notable in. Moore's letter was
his labeling the homole conditions at many
prisons as exampled in the Times' June 17
article as "isolated incidents," an apparenl
favorite .label of Mr. Moore and one he is
reaching the point of abusing. He also warned
the Times that, "What is critical now is to stop
reckless rhetoric. including completely
unfounded speallation about possible 'food
riots: I sincerely hope your editorial did not
unwittingly exacerbate inmate anxiety or
jeopardize safety."
Michael Moore IIpparently did not Wish to
mention that between June 22 and June 25
hundreds ofprisoners at Avon Parle Correctional
Institution staged an almost unprecedented food
strike against Aramllrk's food service.
According to eyewitness 8CC()UDts, the peaceful
protest waS in response to Anunark shorting on
serving amounts, substituting constantly running
out of food and prisoners having to wait in long
lines while more was cooked.
Prisoners report that the food strike was
successful. At the time Avon Parle CI held 823
prisoners. On th!= fU'St day of the stn'ke only 210
ate, on the sCC()nd da,.188, on the third day 161,
lIIld by the fourth day only 110 ate. Reportedly,
by the third day prison officials were C()ncemed,
....ith the ASSl Warden and Colonel going dorm
to dorm asking prisoners to go eat: On the last
day the Asst. Warden. even had, Aramark
preplll'C fried chicken and french fries hoping to
lure prisoners to the chow hall. A rumor
circulated, however, that he was overheard
saying fried chicken would surely get the black
prisoners to eat and break the strike. Only 88
prisoners showed up for the fried chicken.
Prisoners report that after the strike the food
did improve.
fNDle: FPLP staff wishes to IlllIIco it cIcllr dIIIt we do not

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- - - - - - - - - - - - - - FLORIDA PRISON LEGAL

DNA SCORE: 110
PRISONERS

FREED
by Linda Hanson
For the 110 prisoners freed
from prison after their convictions
were overturned by DNA tests, the
vindication brought neither a happy
ending nor a happy' beginning. Their
time in . prison, when totaled,
surpassed 1,000 years.
Recently the Associated
Press conducted an examination of
what happened to the: 110 prisoners
who were all wrongly co"victed, but
released years later after DNA tests
exonerated them.
.
Vincent Moto, a 39-year-old
father offour, Sl:U'Vives on odd jobs,
welfare and food stamps. Mota was
unjustly convicted of rape and.
imprisoned for over 10 years before
being released. ~I have to live with
these scars all my life," Moto says.
"It destroyed my family."
Richard Danziger is even
less fortunate. Wrongly convicted of
rape and sentenced to life, he
suffered pennanent brain damage
when his head was bashed in by
another inmate.
Danziger was
released in 2001 after he 'served II
years in Texas.
In reviewing the cases the
AP examination found:
• AbOut half of the men
exonerated had no prior adult
convictions, according t,o legal
records.
• Eleven ofthe men served
time on death row; two came within
days ofexecution.
•
Slightly more than a
third have received compensation,
mainly through state claims. Some
have received settlements from civil
lawsuits or specia' legislative bills.
For others, claims or suits are
pending; and some had lawsuits
thrown out· or haven't decided
whether to seek money.
•
The men averaged 10

Perspectives - - - - - - - - - - - - - -

and a half years behind bars. The
shortest wrongful incarceration was
one year;·· the longest 22 years.
Altogether, the I JO men spent 1,149
years in prison.
•
Their imprisonment
came during critical wage-eaming
years when careers and families are
built. The average age entering
prison was 28. Leaving, it was 38.
• Their convictions follow
certain patterns. Nearly two-thirds
were convicted with mistaken
from
victims
and
testimony
eyewitnesses. , About 14 percent
were imprisoned after mistakes or
alleged misconduct by forensics
experts.
Nine were mentally
retarded or borderline Tetarded and
confessed, they said, after being
tricked or coerced by authorities.
Finally
freed
by
detennined attorneys or their own
perseverance - the men were
dumped back into society as abruptly
as they were plucked out. Often,
they were not entitled to the help
given to those rightfully convicted.
"The people who come out of this
are . often very, very severely
damaged human beings who often
don't ever fully recover," says Rob
Warden, executive director of
Northwestern University Sehool of
Law's
Center
on
Wrongful
Convictions. •
About 60 percent of the men
were helped by a 10-year old legal
assistance program called The
Innocence Project located at the
Cardozo School of Law in New
York.
The project's first DNA
releases came in 1989.
Most of the 110 men'
released had been convicted of rape;
24 were found guilty of rape and
murder; six ofmurder alone.
Legal experts differ· on
whom these men represent. But
Peter Neufeld, who co-founded The .
Innocence' Project with attorney
Bany Scheck, says these men are the
tip of the iceberg. In other words,
marty more' men remain imprisoned
for crimes they haven't committed.

The increase in exonerations
has prompted legislation allowing
prisoners access to DNA testing.
Twenty-five states now have such
laws, most passed in the last three
years.
Meanwhile, the number of
prisoners asking for genetic analysis
grows. The Innocence Project says it
has 4,000 requests. The biggest
problem is racing against time.
In three-quarten of the
Project's cases, physical evidence
such as hair or blood has been lost,
misplaced or destroyed. During a
criminal trial, the disappearance of
evidence can mean acquittal. After
conviction, it can mean losing all
chances to prove one's innocence.
When lawyers for Marvin
Anderson wanted DNA analJ'sis in
1993, they were told the evidence
against him had been destroyed. But
a swab containing genetic material
was later found, taped to the inside
of a lab technician's notebook. It
proved Anderson was not guilty.
For
those
wrongfully
convicted men who have no genetic
material for testing their plight
remains hopeless. They are caught in
a Kafkaesque vortex - the rest is
history.
t

[Source: AP Press, Citrus County
Chronicles, 612/02] •

GOT THE MESSAGE?

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Perspectives - - - - ' - - - - - - - - - - -

confessions come because the
was later definitively cleared.
suspect
is
bewUdered,
frightened.
or
A 1996 Justice Department
CONVICTED BY
exhausted. Other times confessions
report entitled Convicted by Juries;
JURIES,
may come bec8use they are children,
Exonerated by Science detailed
or
adults
with
the
mental
capacity of . twenty-eight cases of wrongful
EXONERATED BY children.
convictions.
Eyewitness
Studies have shown that
identifications. usually by the
SCIENCE
children in interrogation rooms will
victims. were the decisive factor in
sometimes
confess
to
crimes
they
did
most of them•. Like a confession, the
With the advent of DNA
not
commit
on
the
assumptions
that
testimony
of an eyewitness,
(genetic testing) many of our
they
will
then
be
allowed
to
go
particularly
a
victim. is powerful
nation's prisoners have been
home.
The
mentally
retarded.
too,
stuff,
oftentimes
viewed as the gold
exonerated and freed from their
will
sometimes
falsely
confess,
and
standard
of
evidence.
But in fact
imprisonment. SeventY years ago
for
the
same
sorts
of
reasons;
.eyewitness
accounts
can be
Edwin Borchard produced a classic
eagerness to please, naivete about
fragmented and changeable and
study of how the wrong person gets
the legal weight of a confession, a
subject. to the deep desire to see
sent to prison or to death. The
somebody punished for a crime.
yearning to be back home or to see
hapless innocents Borchard profiled
their mothers. '
Experts have come up with
in his book called Convicting the
Just last year, DNA evidence
two very good ideas for making
Innocent included a coal miner and a
exonerated Jerry Frank Townsend; a
wrongful convictions less likely in
doctor, Central European immigrants
twenty-seven-year-old retarded man,
the future. One is. to .improve the
and American blacks. In those days
who had admitted in 1979 that he
standard police lineup by letting
. exoneration was almost always a
had committed six murders and a. witnesses see only one purported
matt~r of luck.
rape. Townsend served twenty-two
suspect at a time, so they can make
Today, thanks to genetic
years at FSP before being cleared.
an absolute judgment about C!lCh
testing (when it is available),
As Borchard recognized, .. one. When witnesses see six people
wrongful convictions can be
"even' without the use of fonnal
at once, they make relative
reversed more confidently than ever
third-degree methods," as he
judgments. comparing the six and
before. And that confidence allows
us to analyze the reasons for such . described it. "the influence of a . picking whoever looks most like the
stronger mind upon a weaker often
person they remember from the
convictions with greater centrality
or
crime scene rather than evaluating
than Borchard or his contempories .' produces, by' persuasion
each individually.
Conducting
suggestion, the desired result." Even
could.
able-minded adults, subjected to the
lineups sequentially seems like a
Yet· what is striking about
right combination' of coercion,
minor change, but
research
the recently overturned death!penalty
sleeplessness and grief, can falsely
conducted
by
psychologists
convictions (110 have been reversed
confess.
Eli2abeth Luftus and Gary Wells has
in the past 30 years) and other cases
.
In 1999. Keith Longtin,
shown that it reduces the number of
in which DNA evidence belatedly
whose Case was documented in a
mistaken identifications by as ~uch
showed the accused to be innocent is'
Washington Post series on wrongful
as SO ~nt without significantly
. how clearly the convictions rested on
convictions. allegedly made selfreducing the number of convictions.
the same flawed foundations that
incriminating statements .to the
Ensuring the detective running the
Borchard identified.
police about his wife's murder.
lineup does not know who the real
What appears to do in the
Longtin had been held for thirtysuspect is, and so does not make
wrongly convicted is the kind of
eight hours of questionipg. during
leading comments (Don't you want
evidence that seems clinching, that
which he slept (according to police
to look at number 3 again?), helps
often is clinching - namely,
logs) for a total of fifty minutes.
too, for the same reason that good
eyewitness
identifications
and
While Longtin was in prison, the
clinical research is double-blind;
confessions. However, the human
real killer, whose identity was later
otherwise it's easy to contaminate
memory is not a video recorder;
established by DNA evidence,
the results with intentional or
eyewitness testimony is notoriously
sexually assaulted five women at
unintentional bias.
flawed. And although most of those
knifepoint. one in front of her young
The second notable idea is to
who confess are goUty, people can
child.
video tape all police interrogatories,
and do confess to crimes they did not
In 1988 Christopher Ochoa
so that a reliable record exists of the
commit. Most of the time the
confessed to raping and mu~ering a
questioning that produced a
confessions are the product of law
young woman in Austin, Texas; he
confession - how leadiJig, how
enforcement
.
. coercion. Sometimes
j

6----------------

- - - - - - - - - - - - FLORIDA PRISON LEGAL

Perspectives - - - - - - - - - - - -

MICHAEL V. GIORDANO
AGGRESSIVE POST-CONVICTION REPRESENTATIN
The Law Offices of Michael ~. Giordano
412 E. Madison Street, Ste. 824
Tampa, Florida 33602
(813) 228·0070

A STATlWIDE practice specializing in Post-Conviction
Relief on both the State and Federal levels:

**EXECUTIVE CLEMENCY**

.

.

**PAROLE**

**DIRECT APPEALS**
**HABEAS CORPUS**
**POST·CONVICTION RELIEF**
*INEFFECTIVE COUNSEL
*WITHDRAWAL OF PLEA
*ILLEGAL SENTENCES
*ACTUAL INNOCENCE
*I.N.S. DEPORTAnON
I am a fonner Assistant State Attorney (Felony Division Chief), Assistant Public Defender (Lead Trial
Attorney), and member of the faculty at the University of Florida College of Law. I have devoted over 2S years
to the teaching and practice of criminal defense law, and I am an author of a 1,2So-page text on federal practice
in the Eleventh Circ~t. The major thrust of my practice has been post:.ce>nviction oriented. There is
approximately 70 years 'of combined experience in my office. I do not believe you can find more experienced
representation in the State of Florida or elsewhere.

7 ----------------

- - - - - - - - - - - - - FLORIDA PRISON LEGAL

coercive, how open.ended and of the
suspect's comportment during it
Many law enforcement agencies
already employ videotaping during
interrogations. Videotaping makes
some police officers who haven't
used it a little nervous. They worry
that it will cost too much, that
curbside or squad car confessions
will be inadmissible because taping
hasn't started yet, or that officers
will feel constrained form using
aggressive
but
legitimate
interrogations techniques - for
example, telling suspects they have
evidence that they don't, a method
the Supreme Court has upheld.
The objections are largely
unfounded. Videotaping is cheap:
cameras cost a few hundred dollars,
and whatever expense police
department incurs in videotaping is
considerably less than the multimiJlion-dollar awards some states
have paid for wrongful convictions.
It is also ubiquitous, both in law
enforcement (recall the buzz about
those traffic tickets with a

PerspectIves - - - - - - - - - - - - -

surveillance photo of yoUr car?) and
in 'everyday life. Indeed, in the era
of amateur videos, Court TV, and
twenty-four-hour.a-day
news
coverage, we have come to expect a
video record of almost anything that
matters to law or to history, and
plenty ofthings that don't. Certainly
laws can be written to include goodfaith exemptions for confessions
(It is
obtained off-camera.
noteworthy to mention that many
police agencies have cameras
mounted on the dashboards of their
cruisers; just watch clip ~ clip of
the . greatest chase on network
television.)
Despite
some
initial
reluctance, police officers and
prosecutors in the places where
videotaping is already standard
practice now tend to support it ju~
as much as do advocates for the
wrongfully convicted. AcCording to
Ii 1993 Justice Department study of
police videotaping, the most
thorough search to date on, the

subject, 97 percent of the
departments that taped reported that
it was "very useful" or "somewhat
. useful."
The study found that
videotaping increased the number of
convictions and guilty pleas and
decreased allegations of police
misconduct. Moreover, when such
allegations are made, videotapes can
prove or disprove them to almost
everybody's satisfaction.
Videotaping is one of those
rare innovations that can help either
side in the criminal-justice system,
for the simple reason that it serves
the quest to find out woat' really
happened, which is to say the quest
for the truth, that, in the ,end, is it's
~I virtue. "To me, videotaping is
m the same category' as DNA
evidence," says William Geller, the
author of the 1993 Justice
Department study and currently a
consultant to police departments.
"It's a powerful truth·finding tool."
[Source: The Atlantic Monthly, "The
Agenda," July/August 2002J •

AFTER 28, YEARS IN CRIMINAL LAW, INCLUDING POST CONVICTION
WORK, ONLY RECENTLY HAVE I LEARNED HOW DIFFICULT IT IS FOR
DOC INMATES TO FIND LAWYERS WILLING TO EVALUATE AND ASSIST
IN POST CONVICTION MATTERS AT A REASONABLE PRICE: THE
PROBLEM IS MADE EVEN WORSE BY DOC EFFORTS TO LIMIT LAW
LIBRARY ACCESS AND MUCH NEEDED SERVICES LIKE COPYING. I AM
HERE TO HELP, IF I CAN. IF ·FOR WHATEVER REASON I CANNOT
PERSONALLY HANDLE YOUR PROBLEM, I WILL TRY TO FIND A
QUALIFIED LAWYER IN YOUR AREA WHO CAN.' FOR MORE
INFORMATION CONTACT MARC L. LUBET, ESQUIRE, 209 E.
RIDGEWOOD STREET, ORLANDO, FLORIDA 32081 OR AT 407:0841-9336
OR TOLL FREE 1-888-4JUSTIC.
The hiring of a lawyer is an importa~t decision that should not be based solely upon advel'ttsemenL Before you decide, ask us
to send you free written information about our qualifications and esperience.

8

FLORIDA PRISON LEGAL

AROUNDTHE

SYSTEM
•.
During June posters started
appearing on bulletin boards at many
Florida
prisons
encouraging
prisoners to have outside sources
send money to their prison accounts
using Western Union wire transfer
services. When the posters first
appeared, obviously with the
FDOC's approv~ the Department's
rules did not authorized such wire
transfer. Before the month was over,
however, the FDOC proposed a new
role that would authorize wire
transfers (from Western Union only,
which is specifically named in the .
rule proposal). Additionally, the rule
proposal would only allow funds to
be mailed to the FDOC's Tallahassee
financial center and repeals the
existing rule allowing funds to be
sent to institutions to be forwarded
to the main financial center.
Questions have been raised about
bow Western Union was picked to
be allowed to do wire transfers and
how much the FDOC is receiving
from the transfer charges. Western
Union is charging approximately $12
for every $100 it wires to a
prisoner's account.
Prisoners at
some institutions report they will
boycott the Western Union service to
prevent the FDOC making even
more money off their families and
friends than they already are with
exorbitant collect phone rates and
steadily increasing canteen and
visiting park vending machine
prices.
•
On May 24, 2002, the FOOC
attempted to launch a surprise fmal

rulemaking notice to quickly adopt
major and negative changes to the
Department's routine, legal and

Perspectives - - - - - - - - - - - - - - -

privileged mail rules. The initial
notice on this proposal had been
published almost 1V:J years ago on
January 5, 2001. The proposal, if
adopted, will prohibit prisoners'
outside
correspondent
from
including more than three 8 112" x.
11" pages of additional written
material (not counting the letter) in
routine mail per envelope. That
provision would effectively hinder or
prevent prisoners from sending legal
materials to family members, friends
or clerical services to be typed or.
photocopied and returned; prevent
prisoners from receiving bank
statements of more than 3 pages
from outside bank accounts; prevent
prisoners from receiving articles,.
clippings, Internet research ex.cept 3
pages at a time; prevent prisoners
from. obtaining case copies and law
review article copies from state
university law libraries; prevent
prisoners from purchasing trial
transcnpts from' court reporters, etc.
The proposed rules would also limit .
photographs in mail to 3 per
envelope and limit what items may
be sent to a prisoner as legal mail.
The proposal would also prohibit
any written materials from being
received as privileged JJ;lail, from
public officials or the news media,
except correspondence.
Other
written materials would not be
allowed in privileged mail. FPLAO
was prepared for such a sneak attack
by the FDOC on this proposal. This
is the fifth time the FDOC will have
tried to adopt these or similar rules
in the past four years, but was
st~pped by FPLAO the four previous
times. FPLAO immediately moved
to challenge this latest proposal by
administrative means. FPLAO will
do its best to stop adoption of this
latest proposal that seeks to place
severe and negative· limits on all
Florida
prisoners'
and
their
correspondents' First Amendment
rights. (The outcome of FPLAO's
challenge will be reported in the next
issue of FPLP.) •

ANOTHER PLANT CITY
POLICE OFFICER PLEADS
GUILTY

~

Tampa- Four days into his federal trial on
Corruption charges Plant city police officer
Annond Contnoir pleaded guilty and agreed
to testifY in a federal probe that has
implicated high-ranking police and city
officials.
Contnoir is the third officer to plead
guilty to corruption charges in the probe
that has shoken the very. foundations of
criminal justice in this South florida town.
Contnoir broke down in his defense after
two fonner Plant City police officers
testified that police there routinely searched
homes without warrants, lied to .judges,
stole pornographic videotapes and bent the
law to ~e arrests. Those two fonner
officers, Gregol)' Laughlin and Roben D.
Dixon, described a conspiracy stretching
from the depanment's elite drug unit to the
police chief and city manager.
Dixon testified that Cotnoir, his fonner
pamer, and he routinely operated in the
"gray area of the law." Cotnoir will be
sentenced at a later date and the sentence
will be based on how much he coopenues
with federal officials continuing the
corruption probe. (FPLP reponed on this in
the last issue in "Plant City·Mayor, Police
ChiefAccused ofCover-up".)
[Source: Tampa Tribune, 7/12102)

JUVENILE OFFENDER ABUSE
INCREASING IN FLORIDA
. The Daytona Beach Nc:ws.Joumal
reponed in a recent anicle that since Jeb
Bush became Florida's governor repons of
alleged abuse of incan:erated children In
Florida have almost doubled.
. In the 1997-9.8 fISCal year, the last period
before Gov. Bush took office and appointed
fonner state Sen. Mill Bankhead to ron the
Juvenile Justice Depanment. there were
1,237 abuse allegations from juvenile
prisoners. By the 2000-01 fiscal year abuse
complaints had risen to 2,2285.
During the same four year period, the
verified number of abuse against juveniles
showed "some indicators" rose from 271 to
488. The News-Journal based its report on
data compiled by the Department of
Children and Families, which operates the
Florida Child Abuse Hot line.
[Source: Daytona Beach News-Joumal.
6I30/02J

9---------------

FLORIDA PRISON LEGAL

Perspectives

are to be held to a less stringent
standard than formal pleadings
drafted by lawyers: The reasons for
the Haines test are manifest. A pro
by Justin Case
se complaint often provides an
unsatisfactory
foundation
for
Most litigating prisoners proceed
deciding
the
merits
of
important
as indigents. Not surprisingly,
questions because typically it is
most also proceed without counsel.
inartfully drawn, unclear, and
Thus, in terms of both the judicial
equivocal,
and because thorough
treatment of the litigants and the
and possibly an
pleadings,
affidavits,
legal issues confronted, there is a
evidentiary
hearing
will usually
fair amount of overlap. As a
bring·
out
facts
.which
simplifY or
subject that is too often ignored
make
unnecessary
the
decision
of
and too little understood, however,
questions
presented
by
the
naked
pro se litigation merits separate
complaint.
attention.
According to one court, pro se
One characteristic common to
•
pleadings
must be read with "the
most pro se cases is frustration See:
appropriate
benevolence."
from delay; from distrusting of
Eisen
v.
Eastman,
421
F.
2d
560,
opposing parties and counsel; from
562 (2d Cir. 1969). But what is
lack of familiarity with the law,
"appropriate benevolence?"
judicial processes, and even legal
Recharacterization of pro se
terminology; and from lack of
pleadings
is a frequent occurrence.
confidence in a legal scheme that
Typical
examples
of
routinely refuses to afford amends
recharacterization
include
treating
where the pro se litigant feels they
an application for a writ of habeas
are due.
corpus
as one for injunctive relief
On the problems of litigating
under
42
U.S.C. Section 1983. See:
without counsel, see: Larsen, A
e.g.
United
States ex rei Johnson v.
Prisoner Looks at Writ-Writing, 56
Chairman.
New
York State Board 0/
Calf. L. Rev. 343, 352 (1968):
Parole,
363
F.
Supp.
416, 417 (E.D.
"The uneducated \Yrit-writer is not
N.Y.
1973),
affirmed
500 F.2d 925,
capable of intelligently analyzing
926
(2d
Cir.
1974);.
and treating
the function' of law in our society
applications
for
leave
to
proceed in
or of interpreting the court
forma
pauperis
or
assignment
of
decisions construing the law. Pro
counsel
on
appeal
as
one
for
a
se litigants commonly make the
of
probable
cause
(now
a
certificate
mistake of selecting dictum from a
of
appealability),
required
certificate
decision and interpreting it as the
by 28 U.S.C. Section 2253 before a
absolute rule of the case. And
habeas
corpus appeal may be taken.
when they lose they retort: Justice
See:
e.g.
Madison v. Tahash, 359
is· nothing but an elusive
1h
F.2d
60
(8
Cir 1966).
abstraction, a fiction. It assumes
Unfortunately,
the problems of
an air of reality only because the
dealing
with
pro
se
litigation are
majority of people in this country
complicated further by the fact that
live their lives without being
not .only are these mostlyrequired to seek justice. The
handwritten
petitions,
letters,
unfortunate ones who seek justice
requests and motions disorderly,
find that it exists on.ly in the minds
numerous, repetitive, discursive, and
ofthe judges."
.
sometimes
mad, but many are
In 1972, the Supreme. Court
illegible.
and
unintelligible.
decided the case of Haines v.
major problem with
Another
Kerner, 404 U.S. 519, 92 S.Ct. 594
pro
se
litigation
is the "frivolous
(1972), where the per curiam
While
not
all
pro se litigation
filer."
opinion held that pro se pleadings

PROSE
LITIGATION

is frivolous, the number of suits that are
overshadow the more meritorious suits
that may not receive a fair
determination because of the court's
frustration wit'l the frivolous cases.
And, indeed, the courts and legislators
have responded by putting laws on the
books to curtail prisoner pro se
litigation. See: 18 U.S.C. 3624, 3626,
The Prisoner Litigation Reform Act of
1995;
28 U.S.C. 2244 et. seq.,
Antiterrorism and Effective Death
Penalty Act of 1996.
When Shakespeare wrote in King
Henry VI, "The first thing we do, let's
kill all the lawyers," he probably did
not have the pro se litigant in mind.
Although
appointed
attomeys
sometimes are indifferent to their
clients' concerns, see e.g., Wilkins v.
United Siales, 441 U.S. 468, 99 $.Ct.
1829 (1979), the fact remains that the
vast majority of pro se post conviction
litigants seek not,only leave to proceed
in forma pauperis, but the appointment
of counsel at state expense. This is no
wonder. In one empirical study of
habeas corpus ~ases, for example, pro
s~ petitioners· were successful in only
0.9 percent of the cases, while
petitioners represented by .counsel had
won in 13:7 percent of the cases. See:
P. Robinson. An Empirical Sludyof
Federal Habeas Corpus Review a/Slate
Court Judgments, 58 (1979); See also:
Shapiro, Federal Habeas Corpus: A
Study in Mas.~achusells, 87 Harv. L.
Rev. 32i (1973).
.
The authority to appoint counsel
stems from. 28 U.S.C. section 1915 (d)
(1976), which provides in part that the
court may request an attomey· to
represent any indigent person unable to
employ counsel, and 18 U.S.C. section
3006A (g) (1976), which provides in
part that any person subject to
revocation of parole, in custody .as a
material witness, or seeking relief U11der
section 2241, 2254, or 2255 of Title 28
may be furnished representation
whenever the U.S. Magistrate or the
Court determines that the interests of
justice so require and such person is
financially
unable
to
obtain
representaticn.

10----------..:-...--~

FLORIDA PRISON LEGAL

A question that has begged an
answer is whether appointment of
counsel in
post conviction
proceedings should be of right,
rather than in the court's
discretion. Both the Committee on
the Federal Courts of the New
York City Bar Association and th
American Bar Association
e
recommended that counsel be
appointed in 1983 actions an
habeas corpus applications to
avoid inefficient treatment of the
substantive merits of claims and in
order
to
conserve judicial
manpower.
. In any event, under present
law there is no broad right to
court-appointed counsel in post
conviction proceedings. Although
no United States Supreme Court
case is directly on point, Ross v.
Moffitt, 417 U.S. 600, 94 S.Ct.
2437 (1974), provides a close
analogy. Faced with the question
whether Douglas v. California,
372 U.S. 353 (1963) - which
requires appointment of counsel
for indigent state defendants on
their first appeal as of right . should be extended to require
counsel for discretionary state
appeals and for applications for
review in the Supreme Court, in a'
six-te-three decision, the Court
The
decided in the negative.
!dissenters made a valid point:
"there can be no equal justice
where the kind of appeal a man
enjoys depends on the amount of
money he has."
Leave to proceed in forma
pauperis and appointment of
counsel are both significant aspects
of access to the courts. But there
are other important issues as well,
not the least of which is how a pro
se prisoner is to write a sufficiently
intelligent application for such
preliminary relief in order to get
over the fri.volousness hurdles.
In Bounds v. Smith, 430 U.S.
817, 97 S.Ct. 1491 (1977), the
Supreme Court held that the
fundamental Constitutional right of

PerspectIves

and other legal services. Following
access to the courts requires prison
Hooks, the DOC has begun to
authorities to assist inmates in the
preparation and filing of meaningful
effectively
dismantle
the
Plan
legal papers by providing prisoners
promulgated by the DOC and accepted
with adequate law libraries or .
by the Court. Long gone are many of
adequa e-ass1stafice· frOm~
the legal books that once were available
med in the law. In Johnson v.'\ to inmates. Long gone are the available
Avery, 393 U.S. 483, 89 S.C
hours or the unrestricted access to law
( 1969),
the
e
Court
. libraries to research and present
regulation' that
mva I ate
meaningful actions in the courts. Long
gone are the typewriters. Long gone
• prohibited state prisoners from
are law clerks, replaced by research
assisting each other with habe8$
corpus applications. Johnson was
aides who can only provide answers on
questions related to the inmate's
unanimously extended to cover
criminal conviction, civil rights
assistance in civil rights cases as
complaints, administrative actions filed
well. See: Wolffv. McDonnell, 413
U.S. 539, 94 S.Ct. 2963 (1974).
with the Florida Parole Commission or
Also in 1974, the Court struck down
the Florida Bar, and .grievances tiled
a regulation that barred law students
with the DOC. Research aides cannot
and paraprofessionals employed by
assist with Divorce, Paternity, or
lawyers who were representing
Adoption proceedings notwithstanding
prisoners from seeing inmate clients.
Constitutional implications, especially
See: Procunier v. Martinez, 416
when there is a risk of parental rights
U.S. 396, 94 S.Ct. 1800 (1974). The
being terminated. The list goes on.
touchstone in these cases was not
Among other things, the above
merely access to the courts, but
concerns show that a particular legal
meaningful access to the courts. .
decision is not necessarily carved in
To say that pro se litigation as
stone. It is only a resting point between
the previous case and the succeeding
come a long way, however, is not to
say that no problems remain.
one, and much more often than not it
ForemQst among them is the
raises more questions than it answers.
For
definition of "meaningful."
While law is not a techn.ical
example, what. items must be
science, .highly educated, devoted
included in an adequate prisoii'
judges and practicing attorneys find it
library? An adequate law library is
difficult to read a statute, a legal treatise
not the only problem facing pro se
or an -opinion and determine its precise
prisoners. What can be done for
meaning. Legal research often requires
illiterate or unlearned prisoners? In
browsing through various materials in
Florida this problem was resolved in
search of inspiration; tentative theories
Hooks v. Moore (Wainwright)
may have to Ix abandoned in the course .
closing nearly thirty years of
of research in the face of unfamiliar
'litigation. The District Court for the
adverse precedent. New theories may
Middle District of Florida concluded
occur as a rcsult of a chance discovery
that the plan submitted by the
of an obscure or forgotten case.
of
Defendant
Department
Certainly a prisoner, unverSed in the
Corrections designating the contents
law and the methods of legal research,
of the prison's law library
will need more time and more
collections provides inmates with
assistance than the trained lawyer in
the constitutional right to access the
exploring his case. It is unrealistic to
courts enunCiated in Bounds.
expect a prisoner to know in advance
exactly what materials he needs to
At the time Hooks was decided,
Florida's' prisons were equipped
consult. With the DOC dismantling the
with adequate law libraries, word
Hooks Plan, it may take another thirty
processors and typewriters used to
years to restore what has now been lost.
prepare legal documents, law clerks,

•

11---------------

"

-------~-- FLORIDA PRISON LEGAL

',/,

!.:

;

,

! .'

Perspectives ------~---

~!;

DIRECT APPEALS
{;} STATE POST CONVICTION
{!: SENTENCE CORRECTIONS
~!.: FEDERAL PETITIONS FOR WRIT
OF HABEAS CORPUS
~:+} NEW TRIALS
{!: INSTITUTIONAL TRANSFERS·
412 East Madison Street
Suite 1111
Tampa Florida 33602
(813) 226-3138
, ,Fax ,/;81,3), 22'1-2182 ',: ,. ,':";i;

it~ii;aii±'l(f,G:'~r8fiti~~;W~'~i;,:~J"C;
". '!~ 'v'· Ie" ,
;

,

ri1;W:ibti1!J\A0iJ&l'i1i8J('
l£J\to#*I0YU,0!~~01li

12 - - - - . . , . - - - - - - -

_

- - - - - - - - - - - - - - - flORIDA PRISON LEGAL

Perspectives - - - - - - - - - - - - - - -

DAVID .W. COLLINS, Attorney at Law
fonner state prosecutor with more tIum 1S years of criininallaw experience
"AV" nted by Martindal~Hubbell Bf"' Register of~reemlnentLawyers

Your voice in Tallah"ssee representing prisoners in all
. areas o/post-conv!ctil!n relief, including:

•

•

writs of mandamus •
clemency
representation before Parole Commission

appeals
Heggscases
,habeas corpus
'3.850 motions

'Write me today abo~t your easel
P.O. BoxS41
Monticello, FL 32345
(850) 997-8111
'7M IIlrl"ll of" ItNYU u al"q"",., d«iIIoII tJItIl.hould IlOl w/sasH wely upon advertisementl. BefOre you
. , . _ _ /o.ruJyoujlw writ"" It(twmtitltRI abt1tII myqrtQl/fteatlO/V "nd Dperlence. -

ESQUIRE & ASSOCIATES
PARALEGAL SERVICES
Florida Prisoner's Utfgation Manual
Volume 1
Danell E. Blackwelder
ManaaJng PlU'IIIcgaI
235 West Brandon BLVD 293
BramIon. FL 33511
Ph: (813) 63G-1488
Fax: (813) 63G-5.547
E-mail: Esqassoc@hotmall.com '

Richard D.SparIanan
Supervising Attorney
.5 J5 Holiday Terrace
BI'lII1don, FL 33.51 J '
Ph: (813) 657-1738
Fax: (813) 657-J978
E-mail: Esqassoc@hotmaiJ.com
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Soft cover - 313 pages- Albert PUblishing c.,LLC (2002)

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13-------------

- - - - - - - - - - - - - - FLORIDA PRISON LEGAL

PerspectIves - - - - - - - - - - - - - -

The following are summaries of recent state and federal cases that may be useful to or. have a significant impact on Florida
prisoners. Prisoners Interested In these cases should always read the full case as'publlshed'in the Florida Law Weekly (Fla.
L. Weekly); Florida Law Weekly Federal (Fla. L. Weekly Fed.),

'u.S. Supreme Court
McKWle v. Lile, IS Fla. L. Weekly
(Fed) s333 (Sup. Ct 6/1 0/02)
Kansas prisoner Robert Lile
was convicted of multiple sex
offenses and prior to his scheduled
release was advised by prison
officials that he would be required to
part~cipate in a Sexual Abuse
Treabnent Program (SATP). As part.
ofthe program, participating inmates
are required to complete and sign an
"Admission of Responsibility" form,
in which they accept responsibility
for the crimes for which they have
been sentenced, and complete a
sexual history form detailing all
. prior sexual activities, regardless of
whether the activities constitute
uncharged criminal o~enses. The
information obtained from SATP
participants is not privileged, and
! might be used against them in future
criminal proceedings.
Officials
informed Lile that if he refused to
participate in the SATP, his prison
privileges would be. reduced,
resulting
in
the
automatic
curtailment of his visitation rights,
earnings, work opportunities, ability
to send money to family, canteen
expenditures, access to a personal
television, and other privileges. He
would also be transferred to a
potentially .
more
dangerous
maximum-security unit. Lile refused
to participate in the SATPon the
grounds that the required disClosures
of his criminal history wo~ld violate
his Fifth Amendment privilege
against compelled self-incrimination.
Lile sought injunctive relief pursuant
to 42 U.S.C. Section 1983 and the

appraisal ofthe benefits of obtaining
confessions from sex offenders,
balanced against the cost ofhonoring
a bedrock constitutional right, the
plurality opinion holds that it is
permissible to punish ~e assertion of
the privilege with what it views as
modest sanctions, provided that
In a 5-4 split decision, the
U.S. Supreme .Court held that the • those sanctions are not given a
Indeed the
''punitive" label.
SATP serves a vital penological
sanctions are severe, but even if they
purpose and that offering inmates
were not so, the plurality's policy
minimal incentives to participate
does not justify the
judgment
does not amount to compelled selfof a constitutional
evisceration
incrimination prohibited by the Fi~
Amendment.
rigb!:]

U.S. District Court granted Lile
summary judgment. An appeal to
the Tenth Circuit Court of Appeals
by the State was affirmed. On
Certiorari review, the U.S. Sup~me
Court reversed.

[Comment: As Justice Stevens
correctly observed in his well written
dissent, no' one could possibly
disagree with the plurality's
statement that "offering inmates
minimal incentives to participate [in
a ~habilitation pro~] does not
amount
to
compelled
selfincrimination prohibi1ed by the Fifth
Amendment." The question that this
case presents, however, is whether
the state may punish an inmate's
assertion of his Fifth' Amendment
privilege with the same mandatory
sanction that follows a disciplinary
conviction for an offense such as
theft, sodomy, riot, arson, or assault.
Until this recent decision, the
Supreme
Court
has
never
characterized a threatened hann as "a
minimal incentive." Nor has the
Court ever held that a person who
has made a valid assertion of the
privilege' may nevertheless be
ordered to incriminate himself and
sanctioned for disobeying such an
order.
As Justice St~vens so
pointedly remarked, this is truly a
watershed case. Based on an ad hoc

Devlin \I. Scardellelti, 15 Fla. L.
. Weekly (Fed) s3S4 (Sup.Ct. 3/26/02)
The U.S. Supreme Court has
held that no named class members in
a class action lawsuit who have
objected in a timely manner to the
approval of ~ settlement agreement
at the fairness hearing have the
power to bring an appeal without
first intervening.

Federal
Court

Circuit

Jackson \I. FDOC, IS Fla. L. Weekly
(Fed) C 629 (l}1h Cir 6n102)
In this case the 11 th Circuit
Court of Appeals addressed the issue
of .whether a district court may
determine that a habeas petition is
time-barred even though the state did
not raise the issue.
In analyzing the limitations
. period of the AEDPA, the Court
reaffirmed that a criminal conviction
for a Florida prisoner becomes final
upon issuance of the mandate on
direct apP,ea1. See Tinker V. Moore,

--.:------------14--------------

- - - - - - - - - - - - - - FLORIDA PRISON LEGAL

255 F.3d 1331, 1333 (lI rb Cir.
2001 ), cert. Denied, 122 S.Ct. 1101
(2002). In Tinker, the Court held
that even though Florida law allows
prisoner two years to file a Rule
3.850 motion. the prisoner must file
the motion within one year after his
conviction becomes final in order to
toU the one-year limitations period
under the AEDPA.
In resolving the issue above,
the Court recognized that every other
circuit that had dealt with the issue
has found that, even. though the
statute of limitations is a aff111Dative
defense, the district court may
review sua sponte the timeliness of
the 2254 petition. . Following the
reasoning of the other circuits, the
11~ Circuit held that the ~istrict
court possessed the discretion to
raise the timeliness issue.

Swan v. Ray, 15 Fla. L. Weekly

(Fed) C 636 (11 11I Cir. 5/3/02)
The 11 rb Circuit reviewed the
above case on appear and held that
no abuse of discretion existed when
the U.S. District Court denied
Swan's motion for joinder in a case
fild by another inmate after entry of
judgment. The Court reasoned that
Swan did not -have the right to the
same injunctive relief as the other
inmate claimed in his action.
TJte Court held that a district
court may join a person to an action
when the person seeking joinder
aSserts a right to relief jointly,
severally, or in the alternative with
the party who failed the action; that
right to relief arises from the same
underlying transaction or series of
transactions; and, the claims have a
common factual or legal basis.

Florida

Supreme

Court
Griffin y. Sistunck, 27 Fla. L.
Weekly S~78 (Fla. S.Ct. 5/2102)

PerspectIves - - - - - - - - - - - - - -

In this case the Florida
Supreme Court revisited its prior
decisions in Haag v. State, 591 So.2d
614 (Fla. 1992), which established
the prisoner "mailbox rule,... and
Thompson v. State, 761, So.2d 324
(Fla. 2000), which remedied further
problems associated with the
"mailbox rule." 'Both cases
established that for purposes of
timely court filings, the document is
deemed filed on the date the prisoner
lists in his certificate of service.
The issue' in this case was
whether an inmate must include the
exact language set forth in Thompson
and rule 9.420, which was amended
shortly after Thompson was decided,
in order to invoke them mailbox rule.
Recently, the Second DCA examined
the
Thompson
decision
and
concluded that the Supreme Court
did not intend that an inmate recite
the exact phrase, "the pleading was
placed in the hands of prison or jail
officials for mailing" on a particular
date in the certificate of service in
order for the pleading to fall under
the mailbox rule.
The Supreme Court agreed
with the Second DCA and held that
its decision in Thompson was
intended to reduce the hurdles
inmates encounter in gaining access
to the. courts, not to put in place
additional hurdles. Currently, no
special IllngUage other than the
regular certificate of service is

So.2d 620 (Fla. 2000). is not
"adversely affected: if the reasons
invoked for going outside the
guidelines would be valid under both
the 1994 and 1995 laws".
This case hinged on the
meaning of the term "adversely'
affected" found in ·the Beggs
opinion. The Second District Court
of Appeal had interpreted the term to
mean that a defendant would not be
"adversely
affected' by
the
application of the 1995 guideliJies
law iila sentencing proceeding so
long as the departure sentence was
based on departure reasons that
would ~ valid under both the 1994
and the 1995 guidelines."· See Roy v.
State, 772 So.2d 18 (F1a. 2d DCA
2000) and Kwil v. State, 768 So.2d
502 (Fla. 2d DCA 2000).
However, the Fourth District
Court of Appeal interpreted the
definition of "adversely affected"
when applied to a sentence outside
the guidelines as being based on
whether the trial court would have
initially sentenced a defendant to a
departure sentence if it had seen a
1994 scoresheet, instead of a 1995.
scoresheet.
.
Resolving the conflict the
Supreme Court agreed with the
Second District's analysis and
disapproved the Fourth's. The term
"adversely affected" is applicable to
both guideline and departure
sentences.

required.
[Note: The matter was referred to the
Appellate Court Rules Committee to
propose an amendment to Rule 9.420
to include a separate certificate of'
service form for use by prisoners.]

State v. Lemon, 27 Fla. L. Weekly S
563 (Fla. Sup. Ct. 6/6/02)
In a 4 - 3 split decision the
Florida Supreme Court has held that
a defendant sentenced outside the
guidelines (departure sentence)
under the
1995 amendments
invalidated in Heggs v. State, 759

- . . . . . - ------------15----

Youngv. Moore, 27 FIa. L. Weekly
S514 (Fla. Sup.Ct. 5130/02)
In
an
original. writ
proceeding to the Florida Supreme
Court Florida prisoner Chad' Young
argued that the Department of
Corrections was precluded in his
case from imposing a gain time
calculation based on a gain time
statute from a year different than
used for sentencing. The Supreme
Court rejected Young's argument
and held the plain meaning of the
statute goveming Young's gain time
calculation specificaIIy directs 'the

_

- - - - - - - - - - - - - - FLORIDA PRISON LEGAL

Department. to calculate Young's
gain time as of the date the crime
was committed.
In January 1997, Young pled
guilty. to first-degree. scheme to
defraud that began in 1991 and
ended in 1996. In April 1997, Young
was sentenced to two years on
community control. However, in
1998, Young was adjudicated guilty
of violating community control and
the court resentenced Young under
the 1991 guidelines to five and a half
years in prison. Young was placed
in the DOC on April 27, 1998. The
DOC applied the 85 percent. gain
time statute to Young's sentence,
which prompted this action.
Because Young's scheme to
.. defraud, which was a continuing
offense, which' over-lapped into
1996, the DOC correctly applied the
85 percent statute to his crimes. For
purpose of calculating date, of
offenses, the offense date is when
the last overt act in furtherance of
the scheme was committed.

State Y. Seraphin, 27 Fla. L. Weekly
S473 (pIa. S.Ct 5/16/02)
In this case the Florida
Supreme Court ~ted jurisdiction
to resolve a certified· conflict
. between die Fourth and Second
District Courts of Appeal on the
issue of the perceived view that a
"per sen rule permitted a defendant
threatened with deportation tQ
withdraw his plea any time a trial
court fails to provide the information
required by rule 3.172' (c)(8).
In Pearl Y. State, 756 So.2d
42 (Fla. 2000), the Supreme Court
identified the proper vehicle through
which a noncustodial defendant
could present, as a basis for post
conviction relief, a violation of rule
3.172 (cX8) due to the trial court's
failure to provide advice regarding
the
possible
immigration
consequence of the defendant's plea.
The Court expounded on the process.
,
In order to establish the
required prejudice component as a

Perspectives - - - - - - - - - - - - - -

McConnell and other similarly
result of the trial court's failure to
provide advice regarding possible
situated prisoners were entitled to for
immigration consequences of plea, a
any period' before November 30,
1995.
defendant must show prejudice not
only by subsequent threat Qf
On certiorari review, the
deportation,
but
also
must
First DCA agreed that the Supreme
demonstrate that he or she was
in Gomez
Court's
decision
prejudiced in the process by entering
foreclosed further review. The Court
the plea because trial court failed to
recognized that McConnell argued
provide the information required by
that Gomez was wrongly decided on
rule 3.172 (c)(8).
the merits, but be bad not contended
Even in cases where
that Gomez's preclUding relitigation
defendant mistakenly believes that
on the merits violated due process.
Further, the· Court . found that
he or she is a United States citizen, if
defendant alleges that a plea would
McConnell failed to cbalJenge the
not have been entered had
applicability of the charts listed in
Gomez'to bis particular Isituation.
information been provided as
required by rule, this would require
McConnell's petition sought
review of the record in light of
"the award of emergency gain time
defendant's allegations, and an
credits· for each month the prison
evidentiary hearing in the evel!t the
population exceeded 99 percent of
lawful' capacity from October 19,
record did not conclusively refute
1990 to date." The Court noted that
defendant's allegations. The Court
went on to caution that Peart did not
McConnell failed to allege that the
create a "per se" ruie allowing the
prison population exceeded 99
automatic withdrawal of plea by all
percent of lawful capacity at any
time after November 30, 1995.
defendants
threatened
with
mAdams v. DOC, 801 So.2d
deportation in cases involving
150, 151 (Fla. 1111 DCA 2001), the
violation of the rule, but explicitly
requifes showing that, absent the , DCA held that the decision in Gomez
does not preclude the possibility that
failure to inform defendant, he or she
, a prisoner might p,rove that the
would not have entered plea.
prison population has risen again
Novembei' 30, 1995, to the
Florida
Appeal since
applicable threshold. But again,
McConnell had not made such an
Courts
,allegation. Instead, be argued that
the DOC bad incorrectly determined
McConnell v. Moore, 27 Fla. L.
at
and calculated the formula in
Weekly Dll12 (Fla. l DCA 5/9/02)
determining total design capacity
Alan
Florida
prisoner
and
thai the calculations the DOC
McConnell petitioned for a writ of
provided
in Gomez are not accurate.
certiorari that alleged the circuit
DCA denied certiorari
The
court departed from the essential
rmding
that
McConnell· alleged no
requirements of the law when it
basis
for
relitigating
the question and
denied emergency gain-time he
methodology
for
determining
periods
sought by the petition for writ of
beginning
on
and
after
July
1,
1985
habeas corpus.
resolved
in
Gomez.
The trial court found that the
Florida Supreme Court decision in
Newell v. Moore, 27 Fla. L. Weekly
Gomez v. Singletary, 733 So.2d 499
D 1195 (Fia. 1111 DCA 5/22/02) .
(Fla. 1998), foreclosed McConnell
In this proceeding, the First
from litigating anew whether the
DCA
reversed
a trial court order that
DOC had correctly determined the
motion to assess
denied
a
prisoner's
amount of emergency gain-time

---:-------------16----

_

- : - - - - - - - - - - - - - - FLORIDA PRISON LEGAL

costs following an earlier reversal on
a significant issue on appeal. The
trial court had denied the moti~n to
assess costs because the appellant
had not prevail on the merits of his
earlier claim. As the DCA correctly
recognized, under Rule 9.400(a), Fla.
R. App. P., costs award does not
depend on a partyts ultimate success
on the merits of a claim; it is
sufficient if the party prevails on the
significant issue raised in the appeal.

Whisner v. Moore, 27 Fla. L. Weekly
D 1195 (Fla. III DCA 5/22/02)
On appeal from the denial of
a petition for writ of mandamus, the
FDOC sought to have the DCA treat
the appeal as a certiorari review
instead of a plenary review. The
DCA denied the FDOC's motion.
Although a portion of the order on
review reflects that the trial court, in
its appelJatecapacity, reviewed a
quasi-judicial action of the FDOC,
the order also involves an original
disposition of constitutional claims
over which the FDOC had no
jurisdiction.
Thus, AppelJant is
entitled to a higher standard of
review to the appropriate portion of
the order.

!

Harris v. State, 27 Fla. L. Weekly D
946 (Fla. 151 DCA 4/26/02)
In this case Morris Harris
entered into a plea agreement which
provided that he would be sentenced
to a tenn of 15 years imprisonment,
and, at the conclusion of seven years
incarceration, the remainder of the
sentence would be suspended and he
would be placed on probation with
the special condition that he
complete a sex offender treatment
program.
However, four days prior to
his fentative release date from
prison, the state attorney filed a
petition seeking Harris' civil
commitment under the Jimmy Ryce
Act. Harris filed a motion to enforce
the original plea agreement, which
was denied by the circuit court. On

Perspectives - - - - - - - - - - - - - -

appeal the First DCA held the
, doctrine of equitable estoppel was
applicable and that the State can,not
violate the terms of the plea
agreement, and that a motion to
enforce the agreement is the most
effective means to cany out the
intent ofthe agreement

his judgment and sentence, pursuant
to Fla. R. App. P. 9.141(c). In his

petition, Brooks alleged only that at
the time his sentence was imposed,
the trial court advised him of his
right to appeal, that he told his
attorney he wanted to appeal, and
that he did not learn that no appeal
. had been filed until after the time for
[Note: The First DCA certified the
doing so had passed.
folJowing question to the Florida
An' order to show cause was
Supreme Court: May the State
issued by the First DCA and the state
initiate 'discretionary
civil
attach'ed
an
affidavit
from
commitment proceedings under the
petitioner's trial attorney to its
Ryce Act (part V of Chapter 394,
response. The affidavit contained a
denial by petitioner's attorney that
Florida Statutes) where, by seeking
civil commitment, the State would
petitioner had requested that he file a
notice of appeal.
violate the terms of a plea agreement
previously entered into with the
The DCA relinquished
defendant?]
jurisdiction back to the trial court
directing the chiefjudge to appoint a
special master to receive evidence
Gave v. Florida Parole Commission,
27 Fla. L. Weekly D 945 (Fla. III
and make a finding regarding the
DCA 4/26/02)
factual dispute. . Following ,an
Florida prisoner Shane Gove
evidentiary hearing, the special
filed a petition for writ of habeas . master found that petitioner had not
timely requested that his attorney ,
corpus that contended his detention
was illegal because he had been,
filed a notice ofappeal.
unlawfully classified as a conditional
In an en bane decision, after
~Ieasee when be was released from
the trial court proceedings, the First
DCA found the master's report to bQ.
prison in 1998 and that, as a result,
his return to prison upon the Florida
supported by competent substantial
Parole Commission's determination
evidence and denied Brooks a
that he had violated the terms of his
belated appeal.
conditional release was unlawful.
[Note: .This. principle established by
The First DCA determined
that the circuit court erred by finding
the First DCA may eventually reach
that Gove's acceptance of the
the Florida Supreme Court because
benefits of conditioital release
the court failed to distinguish the
constituted a waiver of his right to
fact in this case from those in Roe \I.
challenge the legality of that release.
Flores-Ortega. 528 U.S. 470 (2000);
The' DCA
recognized
that
indeed, the case above completely
conditional release was not a benefit,
fails to acknowledge its potential
but an additional burden. Because
applicability. The 'essential facts in
Gove did not meet the statutoI)'
Flores-Ortega and Broolcs are nearly
requirements for placement on
indistinguishable.
Because of
limited space, I cannot expound on
conditional release, Gove's violation
and subsequent return to prison was
the material facts, but I do encourage
unlawful.
anyone who finds themselves in a
like position to, read this case
. Broolcs \I. State. 27 Fla. L. Weekly D
carefully iit order to develop your
1035 (Fla. 151 DCA 5n102)
strategy when drafting your petition.]
Florida
prisoner. Alvin
Brooks sought a belated appeal of

----------------17-----------

_

- - - - - - - - - - - - - - FLORIDA PRISON LEGAL

State v. Famiglietti, 27 Fla. L'
Weekly D 1056, (Fla. 3d DCA
,5/8/02)
The question presented in
this case is whether a defendant in a
crimimll case can invade the victim's
privileged ~mmunications with her
psychotherapist if the defendant can
establish a reasonable probability
that the privileged matters contain
material infonnation necessary to his
defense. In a divided en banc
decision the majority answered the
The
question in the negative.
majority's opinion was premised on
the fact that neither an Evidence
Code provision, .nor an applicable
constitutional principle, allows the
invasion of the victim's privileged
communications
with
her
psychtherapist. Further, the Court
certified conflict with Stale v.
Pinder, 678 So.2d 410 (Fla. 4lb DCA
1996), which requires a defendant to
a' reasonable
first
establish
probability that the privileged
matters contain material infonnation
necessary to his defense before he
can compel disclosure.

Bell v. State, 27 Fla. L. Weekly D
924 (Fla. 3d DCA 4124/02)
Earnest
Bell
remains
incarcerated within the Florida DOC
following a violation of his
probation. The sole, basis for the
violation
and
subsequent
incarceration was that Bell failed to
file a monthly report. The Third
DCA affinned Bell's incarceration
but certified conflict with the First
DCA decision in Carter v. State, 24
Fla. L. Weekly 1063 (Fla. 1" DCA
1999), rev. granted; 740 So.2d 528
(Fla. 1999).
The Supreme Court is
scheduled to resolve the issue of
whether the failure to file a monthly
report can support a violation of
probation absent a willful and.
substantial intent to file suc~ report.

Perspecbves - - - - - - - : - - - - - - - -

Alexander v. Bamash, 27 Fla. L.

Weekly D 941 (Fla. 41b, DCA
4124/02)
Florida
prisoner
Stuart
Alexander appealed an' order by the
circuit court which detennined that
he was not a beneficiary of an estate.
He filed directions to the clerk to
prep~ the record and requested a
transcript. Having received neither,
he motioned the Fourth DCA for an
order compelling the circuit clerk to
• prepare the record and furnish him a
copy of the transcript at no costs.
The Fourth DCA denied
Alexander's motion for a free
transcript because there is no
constitutional or statutory right to
one· in an appeal by an indigent
litigant in a civil case. See Lee
County v. Ealon, 642 So.2d 1126
(Fla. 2d DCA 1994). fJowever, the
'DCA did direct the clerk to provide
the record without charge pursuant
to section 57.081 (1 ) Fla. Stat.
(2001).

Dellahoy 11. State, 27 Fla. L. Weekly
Ross v. Moore, 27 Fla.L. Weekly D
1296 Fla. 2 DCA 5/31/02)
Florida prisoner Dwight
Ross sought certiorari review of the
circuit court's order that denied his
petition for habeas corpus. Ross
claimed that he was entitled to credit
against his prison sentences when
the overcrowding statues in effect on
the date of his offense were applied
to current conditions.
Ross filed a habeas corpus in
the circuit court seeking for the
Court to detennine "the amount of
overcrowding in the
Florida
corrections system from November
30, 1995, until today." To state his
claim that the prison population
exceeded the pertinent levels, Ross
alleged specific numbers regarding
the bed counts and inmate population
at the facility where be is
incarcerated.
The circuit court
denied tho petition, holding that Ross
"falls outside the time period of
reliof under Gomez because he did
not begin his sentence uotd 1996,

--------------18--

D 1293 (Fla. Sib DCA 5/31/02)
Florida prisoner Walter
Dallahoy appealed the sQ.mmary
denial of his motion for post
conviction relief. Dellahoy's motion
alleged that he agreed to and was '
sentenced by the trial court to a
period of 125 months with credit for
96 months. Subsequently, however,
the DOC advised Dellahoy that 1098
days of gain time had heeD' forfeited
and he would have to serve
lJpproximately 3 years more' than the
29 months called for by the
agreement.
The Fifth DCA vacated the
trial court's denial of Dellahoy's
motion and remanded to either
resentence him in a manner that
effectuates the plea agreement 'after
considering the DOC forf~iture of
gain time or allow him to withdfaw
his plea. The DOC's forfeiture of
gain time cannot be countennanded
by the Court, but neither ciu1 that
forfeiture
thwart
the, plea
agroement.·

_

- - - - - - - - - - - - - - FLORIDA PRISON LEGALPerspectlves - - - - - - - - - - - - - -

-Part One-:

THE' FLORIDA
PAROLEGAME
by Bob Posey

given an incentive to change their
behavior. In order to get out of
prison without doing the entire
sentence the prisoner had to be
paroled and in order' to be pat'Qled
the prisoner had to show that at least
he or she was tJylng to change their
life and be rehabilitated. Everyone
understood how the system workt:d.
Judges
knew
everyone
they
sentenced to prison would be eligible
for parole and they took that. into
account with the length of sentence
they gave, which in turn. was taken
into considera~ion by. the .parole
board when considering when to
grant parole.
Of course, those
paroled weren't just turned loose.
Being paroled involved . close
supervision for a set. period of time
after an offender was released back
to the community. In that way,
under the parole system of
sentencing, the
offender' was
punished for the crime committed,
given incentives to change his or her
life while in prison, and then
supervised when released to help
ensure a successful reentry into
society.

APPRENDI NEWS

Currently, there are a little over
72,000 prisoners in Florida's state
prison system. It might make one .
wonder then why last year only 101
Florida prisoners were released on
parole.
Largely unknown to the
public is that the majority of
prisoners in Florida cannot receive
parole and haven tt been able to since
1983.
Equally unknown is that
locked in Florida's prisons are a few
thousand prisoners who are paroleeligible, but. who have become
captives to justifY the continued
existence of an agency that should
have ceased to exist more than two
decades ago: That agency is the
Florida Parole Commission.
In order to more fully
understand the parole situation in
Florida it is necessary to understand
some of the history of criminal
sentencing
and
changes
in
sentencing that have occurred in
recent decades.
In Florida, up until the 1980's,
Parole in Florida
like inmost other states, people
The
Florida
Parole
sentenced to p'rison were generally
Commission (FPC) was created in
eligible to be paroled at some point
1941 .. Before the Commission was
before the end of their sentence.
established the only way a prisoner
Parole-eligible, or what was termed
could be released prior to completing
"indeterminate," sentencing allowed
a
fuJI sentence was by a pardon from
judges great flexibility in· what
the
governor and Cabinet members.
sentence to give to. someone
From 1941· to 1975 the
convicted of a crime. The idea was
Parole
Commission had total
that giving judges such discretion
authority
over which prisoners were
would allow them to tailor the
granted
parole and over the.
sentence
to
each
individual
supervision
parolees were under
according
to
the
particular
when
they
were
released. In 1975,
circumstances of the crime and the
however,
laws
were
changed and the
person who committed the crime.
reorg8nized.
Parole
Commission
was
could· be
Hardcore. criminals
Many
of
the
Commission's
duties
sentenced for a longer time in prison
to
the
Florida
.
were
turned
over
than say the first time offender who
Department of Corrections (FDOC),
committed a similar crime to get
including p8:l'Oie field officers and
food because he had lost his job
supervision
responsibilities. From a
under indeterminate sentencing.
of
1,321
employees the FPC
high
Once in prison, regardless of
suddenly
found.
employees reduced'
the sentence, then the offenders were

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Perspectives - - - - - - - - - - - - - -

to ISS, including 8 parple
commissioners who where the ones
.who actually made parole deCisions.

other Congressional dissenters were
ignored on the issue and the
expected problems they warned
about.
The effect of guideline
sentencing on the fe4eral system was
felt almost immediately. From 1987,
when the new law took effect, to
1988, the number of drug offenders
in federal prisons increased by
almost 1,200; the next year it jumped
by more than 3,900; and the year
after that it leaped to more than
5,500 and has continued to increase
every year.

Federal Retreat
On the federal level,
members of Congress began to
disparage indetenninate sentencing.
Isdeterminate Problems
About that same time, during
In one study published in 1974, fifty
federal judges were given twenty
the 'mid-1970s, the idea of parole
~W ~ commg ood~ fire
identical files of actual criminal
nationwide. For years, some state
cases and asked what sentences they
and federal lawmakers and attorneys
would impose on the defendants.
had been questionmg reports that
The answers ranged from 20 years in
prison and a $65,000 fine to 3 years
under indetennffiate, or paroleeligible, sentencing defendants faced
in prison and no fine. The issue was
with similar or identical- criminal
debated in Congress for years. In
cbaJ'geS were receivmg widely
1984 U.S. Senator Edward Kennedy
different sentences. Judges, with
called federal criminal indetenninate
sentencing "a national disgrace" and
almost total discretion over
States Lead the Way
Actually, although the states
called for change. The result was
sentencing, might give one defendant
follow
the
federal
usually
no time for the same charge as the
Congress stripping federal judges of
next defendant who got the book
almost all sentencing discretion to
goveniment's lead in any type of
thrown at him and ended up in prison
crimffial reform, in this situation
eliminate disparities in prison tenns.
for years or even decades.
Instead, a complex series of
some states had acted first.
In states where judges were
sentencing
"guidelines"
were
In
1976,
California's
elected and not appointed (like
implemented in the federal system in
Governor J~ Brown signed into
law a new set of criminal sentencing
Florida) the problem of disparity in
1987 that mandated sentencing
sentencing was often worse. With
according to a chart and a point
schemes that did away with parol\, in
crime rates increasing in .the 1970s
that state. Significantly, where
system for adding up "factors"
along with the public's fear of crime,
indeterminate or parole-eligible
related to the crime and/or the
judges depending on being ~lected . defendant's criminal history.
. sentencing largely incorporated the
every few years often felt an
The federal shift from
idea that prisoners could be
rehabilitated with incentives, the
increasing press,ure to appear . indetenninate parole-eligible to
"tough" on crime. On~ of the best
"guidelinett sentencing was not
new California law essentially
platfonns f~r many judges was the
without dissention. In 1984, U.S.
abandoned rehabilitation across the
media reporting large amounts of
Representative John Conyers, Jr., at
board.
"The purpose of
prison time being given out by a
imprisonment," the new law read, "is
the time chairman of the Criminal
Justice Subcommittee in the U.S.
punishment." Oth~ states followed
judge. Hardline judges, knowing
House, argued strongly against the
behind California. That same year
that regardless of the amount of
Maine abolished parole and six other
prison time a defendant was
use of guidelmes. He warned that
sentenced to, he would still be
the system was faulty in that political
states - PennSylvania, Arkansas,
Ohio, ' Hawaii, Colorado and
eligible for parole at the discretion of
pressure couid escalate the sentences
the parole board once in prison,
imposed ooder guidelines and in tum
Delaware - lengthened prison
sentences. Other states turned away
began to feel no qualms about giving
create a huge increase in the
from indetenninate, or flexible
coootry's
prison
population.
out large or even outrageous
sentences.
At the same time,
Conyers also pointed out that
sentencing, and replaced it with
lawmakers reacting to increasing
removing sentencing discretion from
guideline sentencing that guaranteed
judges "may merely place that
crime rates were changing laws to
fixed prison terms. Within ten years,
thirty-seven states had passed
discretion in the hands of
allow judges to give even longer
mandatory sentencing laws and the
prison sentences. Other laws were
prosecutors." The probl~m Conyers
prison population explosion was in
passed that allowed stacking several
noted is that guidelines allow
prosecutors to decide what charge to . full swing.
sentences one bebind the other for
bring against a defendant, and where
more than one crime for a
consecutive sentence that in some
the sentence for the crime is
Florida Abolishes Parole
predetennined, the charge dictates
It took a few years, but by
cases resulted in hundreds of years
for a single defendant.
·the sentence. However, Conyers and
the early 1980s ihe indeterminate vs.

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guideline sentencing debate reached
Florida. Following a study directed
by the state Legislature into
indeterminate sentencing disparities.
indeterminate
parole-eligible
sentencing was abolished and
guideline
sentencing
became
effective for anyone sentenced after
October 1, 1983. There was one.
exception to abolishing parole.
however.
The new guideline
sentencing laws would apply to
everYone except those charged with a
capital crime and who instead of
receiving a death sentence were
sentenced to life in prison with a 25year mandatory minimum that must
be served before they could be
considered for parole on the life
sentence. After October I. 1983, the
Florida Parole Commission only
retained parole authority over
prisoners sentenced before that date
and those sentenced to life with a 25year mandatory after that dilte.
It was the intent of the
Legislature when switching from
indetenninate
to
guideline
sentencing in 1983 that eventually
the Parole Commission wpuld be'
. phased out completely. However,
that "sunset" provision was later
extended and a decade later was
repealed altogether leaving the
Commission intact.
The Commission. however.
had a problem. Except for the
relatively· • few new prisoner
admissions with a 25-year mandatory
life sentence who were sentenced
after October 1, 1983. and who fell
under the parole system. all new
admissions after that date were
guideline-sentenced and not eligible
for parole. Most of those prisoners
who were in prison before that date
and who were parole-eligible had
reasonable sentences with expiration
dates that meant they would either
have to be paroled or expire their
sentences in the next few years.
That kept the Commission .busy up
until the early 199Os. but the pre1983 parole-eligible pool of

Perspectlves - - - - - - -

_

prisoners was rapidly shrinking, and
"technical" violations. Thus, parole
then in 1994 the state legislature did
in Florida bas become a Sisyphean
.away with 25-year mandatory life
endeavor,
with
parole-eligible .
sentences, cutting off the last source
prisoners locked into an indefinite
cycle of disparate hell.
of prisoners who could be sentenced
to any type parole-eligible sentence.
By 1997. with Florida's
[Source: FPC and FDOC Annual
prison population standing at almost
Reports; Florida Statutes; FPC
65.000 people. having more than
records; correspondence from Peter
doubled since 1983 when guideline
FPC
Director
of
Peterson,
sentencing was implemented, only
Operations, 7/11/97; FPC· Website:
6.076 prisoners remained in prison
http://www.state.fl.usltpc; Joseph T.
who were parole-eligible. Of that
Hallinan, Going up the River:
Travels in a Prison Nation (New
number 2.786 were· serving 25-year
York: Random House, 200 I]
mandatory life sentences and 3.290
bad been sentenced before October
I. 1983. That latter group was' [Note: Part Two of this article will
largely made up of prisoners who
appear in the next issue of FPLP and
will take up where left off here. It
had received the outrageously
disparate sentences that had led the
will cover the changes that have
legislature to. switch to guideline
been made to the FI9ridB ParOle
Commission in recent years and the
sentencing in 1983. In many cases if
those pre-1983 sentenced prisoners
impact those changes will.have, or
had been sentenced to a sentence
not have, on Florida's parole-eligible
under the guidelines they would only
prisoners. Part Two will also detail
have received a fraction of the time
tJte numbers, facts, and budget ofthe
that they did and would have been
FPC up to the current time to show
how
parole-eligible
prisoners
out years before. In a curious twist.
however, they had now become· continue to be disparately treated as
pawns in a bureaucratic game.
compared to' guideline-sentenced
prisoners.
. . In 1996 the legislature. that
FPLAO is putting
had previously reduced the number
together a complete section on its
of parole commissioners to five as
new Website at www.UJlao,ors
their workload of parole-eligible
concerning parole in Florida that will
prisoners was greatly reduced,
be available to the families, friends,
further reduced the commissioners to
and advocates of parole-eligible
only three. That same year a new . prisoners,with the intent of creating
law was adopted allowing the
debate and activism on this subjectbp] •
Commission the option of changing
the .parole review time'from every
two years to every five years for the
GAVEL CLUB
majority ofparole-eligible prisoners.
The fact remained, however,
FLOURISHES
that for its continued existence as the
WITHIN DOC
"Parole Commission" there must
by Phillip Stratos
continue to be parole-eligible
prisoners. The solution was for the
Gavel Club #84, an affiliate
Commission to start paroling only
of
Toasbnasters
International,
about 100 prisoners out of the
recently conducted its Awards
remaining parole-eligible pool per
Ceremony at Sumter Correctional
year and to replace them with
Institution in Bushnell. Florida. As
parolees who had. been out but
an invited guest 1 was amazed at the
suddenly found their parole revoked
professionalism displayed, by both
for, in the majority of
minor

--------------21

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corrections staff and inmate
members.
The event was both
infonnative and successful" and
proved to me that programs within
the Department of Corrections are
vital
to
the
growth
and
transfonnation ofour state's criminal
offenders.
The event was highlighted
by confident orators that included
I Paul Sparato, Oscar Hanson and
William Gage. George Rolle served
as the Master of Ceremonies and
Doug McCray was the evenings'
Toastmaster. Club Sponsors John
. Langley, George Hummell and
Assistant Warden of Programs
Lanyard Owens accommodated a
spectacular evening that I will
remember for years.
It was especially rewarding
to see the men of Gavel Club #84
conduct themselves with.. an aura of
professionalism
despite
their
incarcention. It was hard for me to
continue to see th~ men as
criminals. They becaqte my friends.
I salute tbe loen of Gavel
Club #84
and
credit the
Administration
at
Sumter
Correctional Institution for fostering
such a successful program tha~
allows the men to learn and develop
important
communication
and
leadership skills provided by the
Toastmaster program. It is my hope
that this program as well as others
. will continue to flourish as Gavel
Club #84 has••

Perspectives - - - - - - - - - - - - - -

treatment programs that require them
to admit being guilty of the crime
they are imprisoned for can be
subjected to maximum security
confinement and loss of privileges
like
work
and
recreation
opportunities.
Voting 5 to 4, the high
court~s conservative justices held the
majority vote to reject a claim by a
convicted rapist, Robert Lile, that his
right against self-incrimination was
•violated by being forced to choose
between admitting his guilt in a
treatment program or being placed in
maximum security and . losing
privileges.
Justice Anthony
Kennedy penned the majority
decision and was joined by Chief
Justice William Rehnquist and
Justices Antonin Scalia, Clarence
Thomas and Sandra Day O'Connor
in rejecting Liles' claim.
The Court's more moderate
justices, John Paul Stevens, David
Souter, Ruth Bader Ginsburg and
Stephen Breyer all dissented with the
majority opinion, asserting that the
majority had disturbed long-standing
constitutional principles by now
curtailing the Fifth Amendment
rights of prisoners.
The Fifth
Amendment guarantees that no
person "shall be compelled in any
criminal case to be a witness against
himself."
This case is the latest in a
series ofcases that have come before
the supreme court in recent years
testing sexual offender and sex
offender civil commitment laws that
Ct. OKAYS
have been passed by many states.
This case was a test of a Kansas
HARSHER
Sexual Abuse Treatment Program
~RISONMENT
policy that allows prisoners
convicted of sex offenses to be
FOR SEX
placed in confinement and have
privileges taken away if they refuse
OFFENDERS
to admit their guilt in the required
program. Lile challenged the policy,
WASHINGTON
Favoring
claiming it was a violation of the
government over individual rights,
°the U.S. Supreme Court roled June' Fifth Amendment because of the
additional punishment factor and
10 that incarcerated sex offenders
where any admission of guilt that he
who . refuse to participate in
o

s.

_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ 22

might be forced to make could be
used against him in the future.
Four of the justices who
voted to reject Lile's claims said that
such a .policy does not violate the
guarantee against' self-incrimination
if the penalties imposed "do not
constitute atypical and significant
hafdships in relation to the ordinary
incidents of prison life," quoting
from the 1995 case of Sandin v.
Conner, 115 S.Ct. 2293, that
severely restricted prisoners' rights
to remain ftee of arbitrarily-imposed
punishments by prison officials.
Sandra
Day
Justice
O'Conner, the swing vote for the
majority, disagreed with the
majority's limited view of Fifth
Amendment protection for prisoners,
but voted with them because she said
that the penalties Lile would face
were not so great that he should feel
compelled to incriminate himself if
he chose not to.
This decision will likely
ensure the continuation of numerous
other state and federal programs that
pennit confinement and retraction of
privileges when imprisoned or
civilly-committed sex offenders
refuse to participate in treatment
pro8ramS or refuse to disclose their
entire sexual history.
In· Florida, the impact of this
new decision will most likely be felt
with sex offenders who are· civillycommitted after doing their prison
time under the Jimmy Ryce Act, as
no treatment. is available for sex
offenders who are in prison in
Florida.
[Note: For a more legally detailed
review of the Lile case see McKune
v. Lile in this issue's Notable Cases-;
editor] •
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1. Plwe Cbeck ./ One:

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4. Additional Donation
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