Attorney A. Wellington Barlow’s Equity in Sentencing Analysis System is changing Florida’s criminal justice system, one case at a time.
BY THE FLORIDA COURIER STAFF
Unfair and uneven punishment once a person has been convicted of a crime is an American criminal justice system problem, not just an issue in Florida.
That’s why in 1983, Florida decided to give more guidance to courts with regard to criminal sentencing by establishing what’s known as the Florida Sentencing Guidelines, which have been updated over the years.
‘CPC’ in effect
The latest version is the Criminal Punishment Code (CPC), which became effective for offenses committed on or after October 1, 1998.
However, the CPC hasn’t been a complete solution that eliminates unfair and unduly harsh criminal sentences. It actually allows judges to use their decision-making power to give harsher sentences outside the guidelines, provides for increased penalties, and lowers mandatory prison thresholds.
Jacksonville-based Attorney A. Wellington “Al” Barlow, Technologies for Justice CEO and inventor of the Equity in Sentencing Analysis System (ESAS, pronounced “E-sass”) isn’t satisfied with the state’s efforts to prevent unfair criminal sentences.
“Although the state of Florida has budgeted millions of tax dollars and put forth reasonable, substantive and comprehensive efforts to address this crisis, objectively-documented inequitable, disproportional, disparate and therefore unjust sentencing is still an unconstitutional reality,” he told the Florida Courier.
“Not only does this problem violate citizens’ ‘guaranteed’ equal protection rights, but it also takes a financial toll on taxpayers who continue to pay for the warehousing of prisoners, many of whom would have been better served by having been rehabilitated in community -based programs that are much more cost-efficient.
“Conceivably, rehabilitation could substantially reduce recidivism rates by preparing defendants to be productive, tax-paying and therefore law-abiding citizens upon their re entry into society.”
Real data from state records
The CPC requires preparation of a “scoresheet,” in which mathematical values are given to the seriousness of the criminal offense, the defendant’s prior criminal behavior, and other factors. Before being sentenced on a felony charge in Florida, prosecutors are required to prepare and file a sentencing scoresheet with the local clerk of court.
Those scoresheets – now stored electronically – are the keys to the ESAS criminal justice revolution in Florida. ESAS empowers users to electronically search a proprietary database containing more than two million sentencing records from FDOC and quickly receive sentencing data from prior cases.
The search for similar or identical cases can be based on the type of crime committed and when; by county; by the number of guideline points; by circuit – or even by judge, among other variables.
The specific information ESAS retrieves provides what Barlow calls ‘Sentencing Precedent’ which can be used to analyze, compare and contrast sentences in pending cases with the thousands of prior sentences collected in the ESAS database.
Here are some success stories that are happening in Florida criminal courts whenever ESAS is used.
10 years vs. 18 months
A jury found a middle-aged Hispanic male not guilty of second-degree murder. He had another trial scheduled for possession of a firearm by a convicted felon. Trying to make up for the loss on the first case, the prosecutor offered a 10-year sentence in a Florida state prison cell on the second.
However, the defense attorney, a public defender, used ESAS to discover similarly situated cases where the state routinely offered only 18 months in prison for the same offense to people with similar prior criminal histories.
After viewing the identical cases ESAS discovered, the prosecutor reconsidered and voluntarily lowered the initial plea offer from 10 years to 18 months. Needless to say, the defendant happily accepted the plea.
Taxpayer money saved
According to the state Office of Program Policy and Government’s 2019 report on Florida Correctional Facilities, “the per diem of all FCD institutions, excluding private prisons, for Fiscal Year 2017-2018, the most recent year available, was $59.75.”
The per diem, or daily cost of keeping one inmate in one prison cell for one day in Florida, includes costs related to operations, health, education, and substance abuse.
Using a $60 daily savings in Florida taxpayer money for every day someone isn’t unfairly sentenced to prison, it’s clear how much ESAS can reduce the cost of criminal justice in the state.
In the case described above, Barlow estimates that ESAS saved Florida taxpayers more than $185,200 to keep that particular defendant in state prison for 18 months rather than 10 years.
Six years vs. probation
In another case, a young White male teenager was charged with ten felony counts of possession of child pornography, with a possible sentence ranging from 10 to 150 years in prison. He decided not to go to trial and asked for a sentencing hearing in front of the trial judge.
At the hearing, the prosecutor pressed the judge to sentence the defendant in six years in prison.
The defense attorney, a public defender, used ESAS to locate four cases in which the defendants in those cases were charged with the same crime, but with more counts filed against them. Even with more counts, the resulting sentences were substantially below what the prosecutor offered the youth in this case.
After reviewing the information generated by ESAS and over the prosecutor’s objection, the judge determined the defendant in the case to be a “youthful defender” and imposed two years’ incarceration in a youth camp, followed by two years’ community control and two years of sex offender probation.
[Under Florida law, a “youthful offender” is either (a) under 24 years of age and has a sentence of less than 10 years; or (b) under 19 years of age, has a sentence of more than 10 years, and is considered a vulnerable inmate.]
“That sentence was reasonable, equitable, just and proportional,” Barlow opined. “And it saved taxpayers almost $173,900 in prison costs.”
35 years vs. Seven years
In still another case, a jury found a middle-aged White woman guilty of racketeering and organized fraud, but not guilty of first-degree arson. Her possible punishment ranged from three years to 35 years in prison.
At the sentencing hearing, the prosecutor recommended the maximum 35 years. Her defense counsel, a private attorney, asked for the three-year minimum.
The judge reviewed a memorandum prepared by the defense attorney that included ESAS -generated cases, then sentenced the defendant to seven years in state prison followed by three years of probation – over the prosecutor’s vehement objection.
“This sentence was effectively 28 years less than the state unreasonably requested,” Barlow said. “Had the judge adhered to the state’s unreasonable request, it would have resulted in one of the most inequitable, disparate and disproportionate sentences in that entire judicial circuit.”
Barlow notes that ESAS revealed that the presiding judge in the case had never sentenced anyone to more than 12 years in prison for similar crimes during the judge’s entire career.
The estimated taxpayer savings in that case was almost $609,000.
Barlow gets emails from lawyers thanking him for developing ESAS such as this one:
My client, who had no prior record, had been charged with first degree felony Aggravated Child Abuse, which carried a maximum penalty of 30 years’ incarceration.The initial offer from the prosecutor was 10 years in prison, followed by five years of probation.
Using ESAS, I was able to find four recent cases from the same county with the same charge but lighter sentences.
Using that, along with an outstanding mitigation report prepared by my office, I was able to convince the prosecutor to come down to six years in prison, followed by seven years of probation, with credit for 225 days in Lee County Jail.
This was an excellent result that saved this young man four years of his life. The mitigation report was crucial. However, I don’t think I would have been able to achieve a forty percent reduction in the incarcerative sentence without hard data from other cases. Thanks ESAS.
Why no universal use?
“Technology can be deployed to substantially reduce disparate sentencing,” Barlow maintains.
“Sentencing judges, prosecutors, public defenders and private criminal defense attorneys have never had such a practical tool that allows one to examine how a contemplated sentence measures up to sentences that have already been imposed in the exact same or substantially similar cases.
“The question is why legislators, judges, prosecutors, public defenders and private attorneys are so slow to implement ESAS in all 20 judicial circuits?”
Next in this series: The Road Ahead. A. Wellington Barlow and ESAS advocates push to have the system adopted statewide. For additional information and a video demonstration on how ESAS works, log on to https://technologiesforjustice.com/demo