RACIAL INEQUALITY IN SENTENCING Judges rarely sentence since cases mostly plea bargains: Daytona Beach News-Journal & Sarasota Herald-Tribune

Local judges said they seldom choose sentence since most are negotiated pleas

Saturday
Posted Dec 17, 2016 at 3:20 PM
Updated Dec 18, 2016 at 10:54 PM
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By Frank Fernandez


In Volusia County, judges sentence whites convicted of felony drug possession to an average of about five months behind bars. They give blacks with identical charges and records about a year. In Flagler County, the difference is even greater.

Those were a couple of the findings of a first-of-its-kind analysis done as part of a year-long investigation by the Sarasota Herald-Tribune, part of the Florida division of GateHouse Media, which also owns The News-Journal.

Local judges - most of whom were found by the analysis to give harsher penalties to blacks - say it's difficult to compare one case with another and that many of the sentences handed down are the product of a plea agreement negotiated by prosecutors and defense attorneys.

The Sarasota-Herald Tribune investigation reviewed millions of state records compiled by court clerks and the Florida Department of Corrections and found that throughout the state blacks are sentenced to more time behind bars even when they score the same points as whites in the formula designed to ensure equal criminal punishments.

James Purdy, the public defender for the 7th Circuit that includes Volusia and Flagler counties, praised the Sarasota newspaper's project as worthy of the Pulitzer Prize, the highest honor in journalism. He said he would like to see the Office of State Court Administrator compile statistics every year to track racial disparities in sentencing.

Purdy said some judges automatically accept the results of negotiations between the defense and prosecution. Others, while they can't get involved in plea negotiations, have the power to do some "arm twisting" if they believe a sentence is unfair, he said.

"Our judges are very good about working with us on this and we very seldom have a situation where we come out of a plea negotiation feeling like the court has done a number on us, given the defendant more time than he was expecting," Purdy said.

But Terence R. Perkins, chief judge of the 7th Circuit, said judges don't decide the sentences in most cases.

"We actually impose a sentence of our own in a very small number of cases, mostly the cases that go to either trial or that plea open to the court," Perkins said. "Most times, we are presented with a plea, the defendant, the defense lawyer and the state have agreed not only to enter a plea of guilty to a specific charge, maybe a reduced charge, maybe as charged, but they've also agreed on the sentence."

The newspaper calculated that blacks coming before Perkins received 87 percent more time than whites for third-degree felonies, 51 percent more for second-degree felonies and 60 percent more first-degree.

State Attorney R.J. Larizza said in an emailed statement that many factors must be considered in making a fair evaluation of sentences.

"It is disturbing and counterproductive to attack our sentencing practices based on flawed methodology," Larizza said. "The Judges and all participants in the sentencing process are good, hard-working people who strive daily to do the right thing."

Defense attorney Aaron Delgado said the disparity is probably based more on economics as wealthier people can afford to do everything necessary to defend themselves.

"Most cases resolve with negotiated pleas," Delgado said. "You see very few actual trials. That means most cases are being worked out in a way that both sides have compromised, so that leads me to say that if there is a disparity in the sentences, then the attorneys are maybe to blame, because the attorneys are the ones that are negotiating these sentences."

The Herald-Tribune analysis found that County Judge Bryan Feigenbaum - who was featured as a super volunteer by The News-Journal a year ago in part for his mentoring of a black youth - sentenced blacks to 157 percent more time than whites for third-degree felonies.

"Ninety-nine percent of the time I'm dealing just with negotiated pleas and there is no factor in sentencing that has to do with race," Feigenbaum said when asked about the finding. "Never has been for me and never will be."

Circuit Judge James R. Clayton called the investigation's conclusions flawed.

"No two cases are the same - period. And we want so badly to treat everybody fairly and equally," said Clayton, who was shown to sentence blacks to 61 percent more time than whites for third-degree felonies, 45 percent more for second and five percent more for first-degree felonies. "And I know these men and women I know they are not racists. This article seems to jump to a conclusion and work the statistics to meet the conclusion."