By Claire Goforth
JACKSONVILLE, Fla. — Two grey-haired men listened silently in Courtroom 505 of the Duval County Courthouse on March 28 as Judge Angela M. Cox uttered the words that they’d waited the better part of 50 years to hear: “The indictments against you have been dismissed and you are free to go.”
After spending more than 42 years in prison for murder and attempted murder, with that pronouncement Nathan Myers and Clifford Williams took their place in Florida history as the first people to be exonerated by a prosecutor-led effort.
The nation has begun to recognize the injustices spawned by the tough-on-crime era of the 1980s and ’90s that created the highest incarceration rate and prison population in the world. Whereas once punishment was king, the new goal is reform.
In Florida, the increased rejection of the purely punitive model of criminal justice has led to the election of so-called reform prosecutors. In 2016, Jacksonville and Tampa elected Melissa Nelson and Andrew Warren, respectively, to the top prosecutor job. Both, though particularly Nelson, whose office worked to secure Myers’ and Williams’ exonerations, ran against prosecutors criticized for their harshness. Both campaigned on reform.
(Disclosure: Following the death of this reporter’s friend in Okeechobee County in April, Nelson spoke with prosecutors assigned to the case against the accused killer and offered to facilitate communication.)
In the years since, Nelson and Warren have made good on their promises to overhaul and improve the brand of justice meted out by their offices, as the public had increasingly called for and definitively approved by voting for them. Both also have ambitious plans to continue evolving. By and large their reforms have been well received, with relatively quiet pushback thus far.
And while there’s no clear evidence to suggest other prosecutors around the state are following in their footsteps, there is no doubt they are watching and waiting to see what fate befalls the new type of prosecutor who is driven by justice, rather than punishment. Reform-minded challengers seeking office in other circuits seem far more likely than a chief prosecutor altering course midstream.
Focus on juveniles
Shortly after taking office, Nelson’s and Warren’s first major change was in juvenile justice. While campaigning, both promised to keep far more kids out of the criminal justice system than their predecessors had by increasing the use of civil citations. Today, police in their circuits, the Fourth and Thirteenth respectively, now have far greater discretion to issue civil citations in lieu of criminal summons to eligible juveniles.
“We initiated a partnership with law enforcement from all three counties [Duval, Clay and Nassau] to increase the use of juvenile civil citations. In the two years the agreement has been in place, the results have been remarkable — in 2018, 83% of juveniles eligible for a citation were given one instead of being arrested. As recently as 2015, that figure was 28%,” Nelson’s office wrote in response to an emailed inquiry.
The numbers in Warren’s circuit are nearly identical. In 2014-15, the jurisdiction issued civil citations to just 32% of eligible juveniles. As of March, since Warren took office, they have done so in 700 out of 850, or 82% of cases.
Other changes that the pair, who have consulted with one another professionally, have made include issuing more civil summons, utilizing diversion programs more often for low-level offenders and ramping up use of specialized courts for veterans and those with mental health issues. These changes make it easier for people to get their driver’s license back or avoid having it suspended altogether. They’ve also made it a priority to not punish those in poverty, and have launched divisions within their offices to review potential wrongful convictions like those of co-defendants Myers and Williams.
After agreeing to examine the case of Myers and Williams, the conviction integrity unit in Nelson’s office, in what took nearly a year, was able to unequivocally demonstrate that the evidence did not support conviction. By reviewing the evidence and re-interviewing witnesses, the integrity unit proved that their alibi was backed up by dozens of people and the physical evidence did not support conviction. Myers’ and Williams’ defense attorney, now deceased, did not present any of this evidence at trial, instead solely arguing to discredit the account of the eyewitness and attempted murder victim, also now deceased.
It’s rare that a prosecutor’s office was responsible for correcting a past wrongful conviction. “But for her [Nelson’s] presence in that office, those two individuals would still be in prison,” said Miriam Krinsky, executive director of Fair and Just Prosecution.
Nelson herself seemed to fully appreciate the gravity of the situation. In the minutes after the judge handed down the decision clearing the men of all charges, she told a reporter, “It’s kind of overwhelming.”
Collaborative approaches to reform
Like all societal shifts, criminal justice reform isn’t something that happens overnight or without difficulty. Along the way, Nelson and Warren have encountered setbacks and, though neither was willing to admit it, pushback from other prosecutors — both within and outside their offices — as well as from the public and police.
Asked if there have been naysayers, Warren responded through a spokesperson via email, “Our office has overwhelmingly embraced change because when they are in the trenches every day fighting to hold offenders accountable and seek justice for victims, they see first-hand the flaws in an outdated approach to criminal justice.” Nelson also said that if there are any who disagree with her agenda, they haven’t told her.
Attorneys and stakeholders interviewed agree that it helps minimize criticisms that both have taken measured, if ambitious, approaches to reform, engaging with members of their offices, the community and stakeholders-at-large on each initiative.
“Her office worked with us and they actually amended the felony PTI [pretrial intervention] contract …” said Linda Joseph, chief operating officer of Operation New Hope, a Jacksonville-based nonprofit that provides job and life-skill training to people with criminal records to help them transition to productive lives. Local prosecutors “now have discretion to require felony defendants to come to our program.”
The result has been collaborative and far more positively received than it might have been if they had implemented change from the top down.
Nelson credited the people who work for her with suggesting some of the measures she’s initiated. “Some of our very best ideas, from something small like workflow mapping to something big like Keys 2 Drive, have come from inside the office,” she said in a phone interview. Keys 2 Drive makes it easier for people to get their licenses back and avoid suspension. Workflow mapping helps make the prosecutorial process more transparent and trackable for those within the office.
Nevertheless, a report found a slight disconnect between some employees within each office and the leaders. Researchers from Florida International University and Loyola University Chicago, which received funding from the MacArthur Foundation, anonymously interviewed prosecutors in Nelson’s and Warren’s offices with their full cooperation. Some prosecutors reported a feeling that the leader’s vision was not always making it to the rank-and-file, particularly if middle managers disagreed with the leader’s vision.
“If you want a change, you have to make sure those below you have the same mindset …” a prosecutor in Nelson’s office told researchers. “If you have a division chief that is not in line with the mission, then you will lose.”
A prosecutor in Warren’s office shared similar concerns. “If Mr. Warren is set on setting other priorities, I think he needs to clearly convey those things to the chiefs. I don’t think the chiefs are always communicating what Mr. Warren wants. I think sometimes they do things based on their own beliefs.”
The report found other similarities between the two offices, including responses to racial disparities in the criminal justice system. While some blamed the conduct of those who get caught up in the system, others took a more societal view of the issue. “This is America and there are disparities anywhere you look,” said one from Nelson’s office.
Many of the changes necessary to usher in a new era are largely, sometimes entirely, outside prosecutors’ control. The series of events that lead to an arrest necessarily involve both the police and the law itself. Once a defendant is arrested, there is only so much a prosecutor can do.
“I think there are some areas where there have yet to be a complete awakening around the growing mood in our communities and whether there continue to be some remnants of a tough on crime approaches,” said Krinsky, adding that that attitude remains more prevalent at the federal level.
Earlier this spring, the Florida legislature mulled several ambitious criminal justice reforms, including one that would retroactively make nonviolent offenders who had served 65% of their sentences eligible for release. The current standard requires 85% of time served before such eligibility. Two other proposed reforms would have given judges more discretion over sentencing for certain drug crimes and allowed for resentencing people convicted of aggravated assault under previous, harsher laws.
None of these made it into the bill that passed in early May. This failure makes it unlikely that Florida, with a current incarceration rate of 720 per capita (the national average is 660) will see much, if any, reduction in this rate.
Public reaction to the reforms has been overwhelmingly positive and encouraging. Detractors have not spoken out. But if the crime rate increases in Nelson’s or Warren’s jurisdictions, or if a discretionary decision is made to reduce or not file charges against someone who later commits a high-profile or particularly heinous crime, the public’s response may change.
“There is a growing recognition … that how we’ve done things in the past simply hasn’t worked and there’s need for new thinking and new paradigms when it comes to keeping our communities safer and healthier,” Krinsky said.
“Certainly we can incapacitate people …” Nelson said. “We’ve really been trying to think of approaches to make the community safer and better off.”
It is also true that, while the Florida legislature and other politicians have publicly supported the changes implemented by Nelson and Warren, a turning tide of public opinion or political expediency could easily make them into targets just as their predecessors were, though for different reasons.
There are additional challenges ahead. Nelson and Warren have already indicated that they will seek reelection to continue the work they’ve begun. There are some areas, such as bail reform, that remain to be addressed.
“Going forward, we are focused on combating human trafficking, improving how we handle domestic violence cases, and addressing problems with bail — as well as making sure the programs we’ve launched over the past 2.5 years continue to excel,” Warren wrote in an email.
“Our Juvenile Justice Advisory Committee is finalizing its report for best practices on a diversion program for juveniles. … We are also exploring the viability of other problem-solving courts and smart justice programs that will benefit the community,” Nelson said through a spokesperson, adding in a follow-up conversation that she has a long list of things she still wants to do.
“We have a strategic plan that we’ve worked on for about a year that’s about to be publicized … that’s a three-year plan that will be publicly available,” she said, noting that her research indicates that this will be the first of its kind in the state.
The road that lies ahead for Melissa Nelson and Andrew Warren and the communities they serve largely depends on the public, and whether people continue to buy in on the idea of overhauling the criminal justice system to make it more equitable, restorative and just. Elections matter, though perhaps particularly those of prosecutors.
“I think both of them have really succeeded in doing a tremendous amount in a relatively short period of time,” Krinsky said.
This project was collaboratively produced with Jaxlookout and underwritten in part by The Vital Projects Fund.