Florida’s criminal code is unnecessarily complex and completely ineffective at keeping dangerous people off the streets

OPINION

BY LEN CABRERA

In July 2021, I wrote a column calling out the grandstanding of our local officials who talk about gun crime but rarely do anything to stop it. I mentioned specific changes to state statutes that they could request to toughen existing laws that would target actual criminals instead of lawful gun owners:

• Update Statute 790.169 to automatically charge minors with guns as adults.
• Update Statute 790.07 to include “or while under indictment” in the firearm section so firearms are treated the same as other weapons.
• Update Statute 790.27 so that individuals selling, delivering, or possessing a firearm with an altered or removed serial number are charged with a felony instead of a misdemeanor.

I repeated that call in a December 2022 column that was written in response to Gainesville Police Department’s “Gainesville United” anti-gun campaign. There have been two legislative delegation hearings (September 21, 2021 and January 10, 2023) where both Alachua County and City of Gainesville Commissioners asked for lots of money, but they did not ask for tougher state laws on gun crimes.

None of the calls to reduce gun violence seem to address the actual criminals committing the gun violence. Similarly, “criminal justice reform” has nothing to do with strengthening laws directly related to people committing crimes. It’s just a euphemism for the release of prisoners under the guise of “systemic racism” because the demographics of the prisoners do not match the demographics of the community. 

Florida’s criminal code is a long, confusing jumble

As we continue to see the revolving door at the county jail, with seemingly no consequences for the people arrested, it’s clear that we need some real criminal justice reform to keep repeat offenders off the streets. Florida’s existing criminal code is a long, confusing jumble of illegible garbage, cobbled together over the years. We cannot truly be a free people when the laws are so complicated that the average person cannot understand them.

The majority of the criminal code is in Title XLVI (Crimes); it consists of 48 chapters. The first chapter alone (775. General Penalties; Registration of Criminals) has 53 sections and prints out to 61 pages. Under our current laws, the statutes on assault and battery (Chapter 784) are so complicated that we need 26 sections (25 pages) to explain those crimes. To complicate things further, there’s also Title XLVII, which covers criminal procedure and corrections.

Here’s an example of the unnecessary complexity. Burglary (Statute 810.02) can be charged as a third-degree, second-degree, or first-degree felony, depending on the circumstances. It is a first-degree felony if the person commits assault or battery, becomes armed within the dwelling, uses a motor vehicle as an instrumentality to gain access, or causes over $1,000 damage to the structure. Each of these conditions is a criminal charge in and of itself, so there’s no need to complicate the definition of burglary. If convicted, the sentences of all the individual crimes should just be added together. (Sentences almost always run concurrently in our broken system.) 

It seems the criminal code has as many exceptions, loopholes, and special cases as the federal tax code. For example, theft is charged differently if you steal from someone over 65 years old. There are also special sections dealing with retail theft, farm theft, citrus theft, fire extinguisher theft, stop sign theft, and more. Chapter 812 (Theft, Robbery, and Related Crimes) has 41 sections.

Owning agricultural land makes you a special class of citizen. These property owners are not liable for negligence related to their property that results in damage, injury, or death of a person trespassing (810.125). The rest of us don’t have powerful lobbies, so we can be sued or charged by deadbeats who claim to get injured while trespassing on our property. Similarly, Statute 775.0823 elevates law enforcement officers, correctional officers, state attorneys, and judges above ordinary citizens, as if violent crimes committed against them are somehow worse. Assault or battery is treated differently if it involves law enforcement officers (784.071), sexually violent predators (784.074), jail staff or juvenile probation officers (784.075), health services personnel (784.076), “throwing, tossing, or expelling certain fluids or materials” (784.078), persons 65 years or older (784.08), persons detailed in a prison (784.082), or code inspectors (784.083).

Changes are needed to minimize repeat offenders

The solution to this mess is to simplify the criminal code. Ideally, the entire code would be rewritten to reflect a civilized society based on a social compact whereby the government is primarily intended to protect life, liberty, and property. The entire code should be summed up in four concepts:

• Don’t hurt other people
• Don’t take or damage their stuff
• Don’t trick or force them to do stuff they don’t want to do
• Don’t help anyone doing any of the above

It’s probably too much to wish for a complete rewrite, but we definitely need some adjustments to deal with repeat offenders. Over 70% of the people booked into the Alachua County Jail on February 24 were not there on their first visit. It’s not always that bad, but frequently over half of the people booked are on return visits. There are also examples like Tommy Lee Brown, Jr., who was arrested for aggravated assault with a firearm on February 27. He already had convictions for 13 felonies and 35 misdemeanors. Note that he was not charged with possession of a firearm by a convicted felon–I guess all that talk about a “gun violence crisis” wasn’t very serious.

Our falsely-named “three-strikes” law (775.084) is toothless because of its complexity (6 pages and over 3,000 words). The official title is “Violent career criminals; habitual felony offenders and habitual violent felony offenders; three-time violent felony offenders; definitions; procedure; enhanced penalties or mandatory minimum prison terms,” which just hints at the complexity. There’s also an equivalent law for “Habitual misdemeanor offenders” (775.0837). Another reason these laws are ineffective is that prosecutors routinely allow defendants who are charged with one of these offenses to plead down to a lesser offense, removing them from the “three-strikes” track.

Statute 775.082 (penalties) adds more complexity with its five-page jumble of complex legalese to force “mandatory minimum sentences for certain reoffenders.” There is no need for this level of complexity and no need to specify which repeat offenders get harsher penalties. All reoffenders should receive harsher penalties.

“Three-strikes” law must be made more effective

These statutes have been ineffective in preventing the revolving doors at our jails that keep repeat offenders on the streets. We need a simplified three-strikes-style law that is simple to understand and strictly enforced to punish all repeat offenders. This could be the starting point:

• Any second conviction (regardless of original crime) automatically gets the maximum sentence for the level of offense.
• Any third or higher conviction (regardless of original crime) automatically gets the maximum sentence of the next higher level of offense. The only exception is a third conviction for a violent offense that results in a mandatory life sentence. 
• If a defendant carries, displays, uses, threatens to use, or attempts to use any weapon or firearm during the commission any crime (other than felonies in which use of a weapon or firearm is an essential element), the charge is automatically raised to the next level of offense and the sentence must be at least half of the maximum sentence. (This should replace Statute 775.087 and possibly all of Chapter 790.) 

The penalties for each level of offense should be presented simply like the table below, not buried in multiple statutes as it is now in 775.08, 775.081, 775.082, 775.0823, and 775.083.

All the violent offenses should be listed in a single location, not spread over multiple statutes. The list below combines offenses found in 775.0823, 775.084, 775.087, and 776.08:

• Aggravated assault (784.021: with a deadly weapon or with intent to commit a felony)
• Aggravated battery (784.045: uses a deadly weapon, or victim was pregnant, or intentionally or knowingly causes great bodily harm, disability or disfigurement)
• Aggravated child abuse (827.03)
• Aggravated stalking (784.048: credible threat, violates court-imposed prohibition, or stalking child under 16)
• Armed burglary (810.02)
• Arson (806.01, 806.031, 806.10)
• Carjacking (812.133)
• Home-invasion robbery (812.135)
• Kidnapping (787.01, 787.02, 787.06)
• Murder, first or second degree or attempted  (775.0823, 782.04, 782.051, 782.065)
• Manslaughter in commission of another crime (782.07, 782.071, 782.072)
• Robbery (812.13, 812.131)
• Sexual battery (794.011, 794.0115, 794.023, 794.05, 794.08)

Florida prisons are not overcrowded

Keeping repeat offenders locked up may require additional prison and jail capacity. Prison overpopulation is frequently used as an excuse to release prisoners, but that is not the case in Florida. In 2019, Florida’s prisons were at 94% capacity. Since then, our total prison population has decreased by 13,502, according to the Florida Department of Corrections 2021-22 Annual Report (page 21). That said, we do need to expand prison capacity to keep up with population growth so that “criminal justice reform” advocates don’t use overcrowding as yet another excuse to release criminals. 

Miscellaneous changes

Our criminal code should allow us to incarcerate the dangerous criminals and serve as a deterrent to potential criminals. The primary purpose should be to protect the law-abiding citizens from the dangerous ones. In addition to the changes to gun crime statutes at the top of this column, the following changes should help:

• Amend Statute 985.556 to make it easier to charge juveniles as adults.
• Amend Statute 874.04 to automatically charge juveniles as adults if they are caught in gang activity.
• Amend Statute 948.06 so that any violation of probation automatically results in serving jail time for the remainder of the probation period. Probation violators should not be eligible for probation for any future charges.
• Amend Statute 903.046 to require higher bail for violent crimes, especially for suspects with a criminal record. 
• Amend Statute 901.31 so that anyone who fails to appear before any court is automatically held in jail pending the trial for the original charge and is no longer allowed to be released on bail for any future charges.

Increase the capacity and accountability of the criminal justice system

All of these changes are irrelevant if criminals are not prosecuted. We need to increase the capacity of the courts and the number of state prosecutors and public defenders to ensure alleged criminals are provided their constitutional right to a speedy trial. 

There also needs to be some accountability for judges and prosecutors who are too lenient or show poor judgment in granting low bail, pre-trial release, deferred prosecution, or probation in lieu of prison. Charging them as accessories in crimes committed by the beneficiaries of their poor judgment is probably too severe, although I love the idea. 

A more reasonable system might be a scorecard of repeat offenders linked to a judge or prosecutor. Crossing some threshold (for example, 3 repeat offenders in a 30-day period) would eliminate a judge’s discretion to offer pre-trial release or set bail below what is recommended by statute. A prosecutor may lose the ability to drop charges or offer plea deals without tighter supervision. In extreme cases, the judge or prosecutor might be removed from office. The court might also be liable for damages related to crimes committed by defendants on pre-trial release. That is not unprecedented since Statute 784.0487 holds the court issuing an injunction liable for economic damages for injury or loss if a protection injunction is violated.

The idea of linking judges and prosecutors to the crimes committed by people they release is getting more attention after last week’s shooting in Pine Hills by a known gang member with an extensive criminal history. Earlier this week, Governor DeSantis’ General Counsel, Ryan Newman, sent a letter to State Attorney Worrell asking why the prosecutor’s office failed to prosecute the shooting suspect for previous charges. More importantly, Newman asked for the number of times people were arrested for felonies or probation violations who had prior criminal histories and were not prosecuted by Worrell’s office. I hope that’s a sign that there is some accountability coming for prosecutors.

This column seems long and complicated, but it’s nothing compared to our criminal code, which is unnecessarily complex and completely ineffective at keeping dangerous people off the streets. Any serious discussion of “criminal justice reform” needs to focus less on prison demographics and more on minimizing repeat violent offenders. Simplifying the code would be wonderful, but we also need to increase its effectiveness to incarcerate dangerous criminals and serve as a deterrent to potential criminals.