Don’t blame court for freeing felons

Much discussion revolves around the unpopular decision of the Florida Supreme Court releasing hundreds of serious criminal offenders upon Florida society. Both the judicial system in general and the Florida Supreme Court in particular have taken a renewed fall from grace.

However, castigating the Florida Supreme Court is misdirected. If blame is to be cast, let us not falsely accuse but place it where it belongs, namely, on us, the people.

In 1985, the Florida Legislature passed Section 944.275 (4) (b) as follows:

“For each month in which a prisoner works diligently, participates in training, uses time constructively or otherwise engages in positive activities, that the Department of Corrections may grant up to 20 days of incentive gain time, which shall be credited and applied monthly.”

Although the U.S. Supreme Court in Weaver vs. Graham in 1981 ruled the word “may” gives discretion to the Department of Corrections to determine who works diligently and uses time constructively, once eligibility is determined, the Department of Corrections has no discretion to deny gain time.

Nevertheless, the attorney general in 1996 circumvented the statute by authorizing a rule prohibiting gain time to certain classes of inmates. Based on his opinion, gain time of otherwise eligible inmates was denied.

In short, the Florida Legislature made a contract with convicted criminals. For each month that a prisoner worked diligently and used time constructively, the prisoner would receive 20 days of credit on the sentence. It was the U.S. Supreme Court, not the Florida Supreme Court, that held that this statutory contract could not be repealed by subsequent administrative rule. Any such administrative rule (or statute for that matter) is an ex post facto law prohibited by Article I, Section 10, Clause I of the United States Constitution. In evaluating an ex post facto violation, a two-prong test is applied: one, whether the law under scrutiny is retrospective; and two, whether the law increases the penalty.

The attempt to change the law from what it was when crimes were committed is clearly retrospective and further increases the penalty by which a crime was punishable when the crime was committed.

No doubt, guilty pleas and judicial sentences were negotiated and imposed with knowledge a prisoner could obtain gain time for good conduct.

What we have here is a contract made by the Florida Legislature in 1985, followed by an attempt by the initiating contracting party to breach the contract. Call it a bad contract, if you will, but the court system must do what it would for any contracting party, namely, enforce it.

The horror of the decision is magnified by the accumulation of previously qualified prisoners. But for the state waffling, there would have been a slower and less noticeable introduction of prisoners into the free world.

The Supreme Court is intermittently criticized for making law instead of interpreting law.

Any criticism of the court here implies the court should have made new law or ignored law enacted by elected representatives.

My Word
By Russell Troutman
The Orlando Sentinel
Thu. December 12, 1996

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