Vexed by a recent Sarasota Herald-Tribune investigation showing Broward County sentences blacks busted in drug-free zones to more prison time than whites, prosecutors disputed the findings.The newspaper must have erred, they said.
But a monthlong review by the Herald-Tribune and State Attorney’s Office found Broward County’s own records are riddled with errors — errors that court clerks passed along to the Florida Department of Corrections, which supplied data to the newspaper under public records requests in 2016.
Those mistakes caused the newspaper to overstate racial disparities for defendants convicted in Broward’s drug-free zones in its December series “One War. Two Races.”
The original data showed Broward County’s 17th Circuit incarcerates black defendants for an average of five times as long as whites busted in a drug-free zone.
The corrected data shows black offenders spend triple the time in lockup on average.
Broward prosecutors acknowledge the disparity is a problem, and they intend to meet with black pastors, community groups and law enforcement to address the issue.
“We will seek their input to weigh the quality of life and safety issues that come with living in lower socioeconomic areas exposed to drug violence,” Jeff Marcus, chief assistant to Broward State Attorney Michael Satz, wrote in an email to the newspaper. “It is important to consider the opinions of the people who live and work in the communities affected by street sales of drugs.”
The Herald-Tribune reviewed more than 700 cases in Broward and found prosecutors helped negotiate sentences for white defendants charged in drug-free zones that average 233 days in lockup.Blacks averaged 684 days — or three times as long.
The Broward State Attorney Office’s blamed the disparities on blacks having longer criminal records and previous stints in prison. They said many of the drug arrests involving blacks happen on the streets and in the open, bringing violent ancillary crime.
Prosecutors criticized the Herald-Tribune for comparing defendants by the number of points they scored on their sentencing guidelines. The system was set up to ensure equality, but Broward prosecutors said in written statements and in a phone interview that points are not what govern their recommendations.
Instead, they emphasize prior criminal history. As a result, whites who commit more serious crimes are shown leniency over black defendants with longer criminal records.
“We did it wrong for a very long time,” Broward Public Defender Howard Finkelstein said. “And we hurt a lot of people who did not need to be hurt.”
Finkelstein blasted drug-free zones as archaic, ineffective and discriminatory. He was not surprised by the racial disparities in his circuit.
“It’s time for the system to change,” Finkelstein said. “It’s stacked against people of color.”
‘Prior record is already quantified in the points’
Florida legislators adopted drug-free zones amid crack’s reign in 1987. The law increases the severity of drug offenses within 1,000 feet of schools, parks, churches, convenience stores and public housing.
The Herald-Tribune analyzed these sentencing enhancements based on the number of points defendants scored on their criminal guidelines scoresheets, the formula used in Florida to calculate criminal punishments.
Reporters identified at least a dozen instances in Broward where white defendants were shown extraordinary leniency compared with groups of blacks, who scored almost exactly the same number of points but were given much more incarceration.
In each cluster, whites were sentenced to just a few months in jail — or no lockup at all — while blacks were far more likely to see punishments on par with the minimum established by law. For some, that meant more than five years behind bars.
The Herald-Tribune reviewed each of the drug-free zone convictions in Broward where the defendant scored 44 points or above, qualifying them for some state prison under the guidelines.
Nearly half of the whites to score above 44 points got no time at all — even though their sentencing guidelines said they could have.
That rate of leniency drops to just a quarter for blacks.
At the same time, 61 black defendants were each sentenced to more than three months longer than the lowest permissible sentence listed on the scoresheet, indicating the court showed little mercy. That’s about 14 percent of the 445 blacks convicted of drug-free zone enhancements since 2004.
But just three of the 57 white defendants convicted of a drug-free zone enhancement were sentenced to more than three months longer than what their scoresheets recommended. That represents just 5 percent of the total.
Prosecutors in Broward’s 17th Judicial Circuit attributed their sentencing disparities to the discretion of law enforcement, which controls the number of minorities arrested and brought into the criminal justice system.
“People drive into these neighborhoods to buy their drugs – they’re open and notorious,” Marcus told the Herald-Tribune during a 45-minute phone interview. “It’s not hard for police to watch and make arrests, so that’s what they do. Sometimes it’s within 1,000 feet of a school or park. In higher socioeconomic communities, these drug deals aren’t taking place. And with these drug deals comes murders, rip-offs and (activity) people don’t like in their neighborhood.”
Broward prosecutors argue that the newspaper’s review did not adequately take into account a defendant’s past. They said the longer a defendant’s rap sheet, the more punitive their recommendation, regardless of the sentencing score.
They say just because defendants score the same number of points at sentencing, it does not mean they should expect similar punishments.
“The premise of your story is that people with equal points should be treated the same,” Marcus wrote in an email. “Your story does not take into account the prior record points of the individuals you have asked us to compare or whether the offender has previously been to prison.”
But other lawyers and criminologists point out that prior records are already built into the point scoring system.
They told the Herald-Tribune that if one criminal had a more severe offense, but not a very long criminal record, it is acceptable to compare them with another defendant who received the bulk of the points through priors after committing a minor crime — especially when comparing hundreds of cases.
James Unnever is a professor of criminology at the University of South Florida Sarasota-Manatee. HERALD-TRIBUNE STAFF PHOTO / MIKE LANG“The bottom line is they have a prior record that is scored on the guidelines and helps determine the sentence,” said James Unnever, a professor of criminology at the University of South Florida Sarasota-Manatee. “The prior record is already quantified in the points.”
Criminal defense attorneys argue that the entire justification for the point system is to assign measurable values to circumstances — like offense severity and prior record — to come up with a fair sentence that takes all of the factors into account.
The idea is to punish criminals in Pensacola the same as those in Key West — no matter their race, gender or wealth.
“There’s no way you can say with a straight face that by and large, people with similar scores should not receive similar sentences,” said Derek Byrd, a prominent criminal defense lawyer in Sarasota. “That’s the whole purpose. It’s why they did this. The purpose of the guidelines is to promote consistency in sentencing.”
“It seems more than coincidental that it is minorities always having these long sentences. I don’t see how they escape that.”
‘It’s just not fair’
Raymond Williams was at the Alley Cat Bar and Grill in Hollywood, Fla., when he approached undercover detectives working for the vice, intelligence and narcotics unit.
The 45-year-old white man introduced himself, pulled out a prescription bottle from his pocket and sold three opioid painkillers to the detectives for $20. The undercover buyers purchased more pills from him for another $20 later that night.
As last call neared, Williams handed one of the detectives a small baggie of cocaine, insisting he did not want money for it, only for the men to buy him a beer. Law enforcement ordered him a $5 Stella Artois.Williams told them he was waiting for an eight-ball (3.5 grams) of cocaine to be delivered. When the drugs arrived, Williams kept asking the detectives to join him in the restroom to snort a line, according to police reports.
The bar was too dark, loud and smoky for recording devices, but detectives had others members of their unit stationed outside. They charged Williams with two counts of selling hydromorphone, two counts of selling oxycodone and one count of selling cocaine.
Detectives noted on their arresting paperwork that the deal took place 105 feet from Young Circle Park and 800 feet from the Hollywood Academy of Arts and Sciences — enhancing the transaction to a more serious first-degree felony.
Williams scored 169.8 points on his sentencing guidelines. That takes into account the severity of the bust at the Hollywood bar in February 2014, as well as his prior misdemeanor convictions for assault, theft, carrying a concealed weapon, driving with a suspended license, public intoxication and disorderly conduct.
A score of 169.8 equates to a lowest permissible sentence of nearly nine years in state prison.
Broward prosecutors instead agreed to a deal that called for 90 days in county jail, followed by the leniency of house arrest and probation, which Williams later violated.
The state attorney’s office did not list a reason for the downward departure on the scoresheet.
Correctional records show that since 2011, at least eight black defendants scored roughly the same number of points as Williams for drug-free zone convictions. Not one received the same mercy. Their punishments ranged from two to eight years in prison.
Consider Ernest Louis. The 37-year-old black man was busted in 2013 for selling $10 worth of cocaine to a confidential informant within 1,000 feet of Walker Elementary School in Fort Lauderdale, court records show.
“Your premise that Mr. Williams, who had no felony record, and Mr. Louis, who was an habitual offender with 10 prior felony convictions, should be treated the same just because they end up with the same points is unreasonable, defies common sense, and does not comport with Florida law,” Marcus wrote. “The fact that they had the same number of points was not determinative as it does not take into account mitigating circumstances that may apply to Mr. Williams and prior prison sentences and an extensive prior record for Mr. Louis.”
‘They gave bad data to the state’
The issues in Broward go beyond drug enforcement and into the circuit’s recordkeeping.
While reporting its series – ‘One War. Two Races’ – in 2017, the Herald-Tribune relied on data from the Florida Department of Corrections to measure racial disparities in sentencing. The state government databank contains information on the names of defendants, the crime in question, the points scored and the punishment.
In Broward County, the data is laden with errors.
The Herald-Tribune opened all 721 records in Broward and found clerks entered sentences incorrectly in 175 cases – or nearly a quarter of the total.
In one instance, clerks entered a sentence of 650 years instead of 65.
The mistakes in Broward also include 19 cases in which judges first sentenced defendants to anywhere from 15 to 65 years in prison. Then, a month or so later, they shortened those punishments to around three years. All of the defendants were black, and their sentences were never adjusted in prison records.
“Some judges have the practice of temporarily releasing jailed defendants, after they have pled to the charges, before they go to off to prison,” said Constance Jones-Simmons, a state attorney’s spokeswoman. “In order to make sure they will return, the judge first sentences them to 30 years. When they return to court on a designated date, the sentence gets reduced to the more reasonable number of say, three years. If they do not return, the 30 years sticks when they are eventually re-arrested.”
A Florida Department of Corrections spokesman said the state relies on clerks in each county to enter accurate information – and to train their employees accordingly. The state provides three pages of instructions for the court system on proper data entry for sentencing scoresheets. But there’s no audit at the corrections level.
Dian Diaz, chief operations officer for the Broward County Clerk of Courts, told the Herald-Tribune that her office stands by its records. She agreed to review the potential errors, but noted it would take time.
“Many of these cases predate e-filing and they all predate the current administration,” Diaz wrote in an email to the Herald-Tribune. “The images of the actual court orders that we would need to perform the analysis are not available electronically and exist in paper in the archived paper file … This is not a small project.”
In other parts of Florida, the records were far less messy.
The Herald-Tribune reviewed more than 700 drug-free zone cases in in Jacksonville’s 4th Circuit and more than 200 in Pensacola’s 1st Circuit.
Less than 5 percent of those records contained errors.
John Kramer, Emeritus Professor of Sociology and Criminology. Photographed Thursday March 23, 2017. [Herald-Tribune staff photo / Thomas Bender]“The 5 percent rule is generally a good one,” said John Kramer, a professor emeritus of sociology and criminology at Pennsylvania State University.
Once corrected, the Herald-Tribune found that the 4th Circuit sentences blacks to more than twice as long in lockup as white defendants convicted of felonies within drug-free zones. The 1st Circuit sentences blacks to four times as long.
The Herald-Tribune originally reported a higher ratio for the 4th Circuit, but the ratio for the 1st Circuit is the same.
Broward County “is trying to hide behind the fact that they gave bad data to the state,” Kramer said. “But that’s a fallacy. The data reflects what the court system told the corrections system.”
‘Pushback from judges’
Experts point to the errors in Broward as a reason for why better data collection is needed in the criminal justice system. With improved data, prosecutors and the judiciary could better measure disparities and their role in perpetuating them.
A bill proposing exactly that failed to advance through the Senate Judiciary Committee last year following pushback from judges in Sarasota’s 12th Circuit Court, who now say they support the measure.
That legislation was proposed in response to the newspaper’s “Bias on the bench” series, published in December 2016.
Sen. Audrey Gibson, D-Jacksonville, was ready to revive the bill this year but said she’s still facing backlash from the judiciary and could not find a cosponsor in the House of Representatives.
Herald-Tribune political editor Zac Anderson contributed to this report.
Click here to read the Sarasota Herald-Tribune’s original series, One War, Two Races.’
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