SMARTER, NOT TOUGHER

A New Law Study Brings Gov. Jeb Bush's Recently Signed, Mandatory
Sentencing Law Into Question.

On the same day last week, two conflicting things happened -- one on the
national level and one in Tallahassee.

Dennis W. Archer, president of the American Bar Association, announced the
results of an ABA study on the nation's propensity to be tough on crime by
imposing mandatory sentences.

There needs to be change, he said, "Because the old way has cost too much
and done too little to make our communities safer. In short," he said, "it
isn't enough just to be tough on crime, they also need to be smart on crime."

Then, as if to demonstrate the love for the tough-on-crime mind-set, Gov.
Jeb Bush signed a bill that would mandate anyone convicted of five
misdemeanors in a 12-month period will have to spend six months in jail or
a residential-treatment facility.

It doesn't take much of a crime to cross the misdemeanor threshold.
Shoplifting is a misdemeanor, as is carrying less than 20 grams of
marijuana, disorderly conduct and gambling.

Racking up five misdemeanors in 12 months is a big threshold to cross. Yet,
it isn't all that difficult for the homeless, who are often arrested for
the misdemeanor crime of loitering. Critics of the law say that's exactly
the target of it.

Miami-Dade County Judge Steve Leifman was among several judges across the
state who said the law could lead to potential jail overcrowding.

Bush brushed off the possibility, saying the Office of State Courts
Administrator reported last year that there were just 931 offenders in
jails across the state with five misdemeanor convictions in 12 months. And
because the bill provides for alternative sentencing, it was unclear how
many potential offenders would serve time in jail.

Still, the 931 inmates with five or more convictions wound up in jail
without the mandatory law in place. There's no indication of how many
others with four misdemeanor convictions were convicted of a fifth, but
were not sentenced to jail because the judge still had sentencing discretion.

"There is a reason we give judges a gavel, not a rubber stamp," said the
ABA's Archer. Mandatory minimum sentencing laws "too often are tough on the
wrong people."

The ABA study began last year when U.S. Supreme Court Justice Anthony
Kennedy, a Reagan appointee, criticized criminal sentences for being too
long and too rigid. Minimum-mandatory sentences, he said, were "unwise and
unjust," and as a result, "our resources are misspent, our punishments too
severe, our sentences too long."

The ABA's study was also concerned about the misuse of resources. Of the
2.1 million imprisoned Americans, 95 percent will eventually be released.
Archer said if resources are invested "while they are incarcerated in
helping them prepare to re-enter society -- providing job training and
treatment for substance abuse, for example -- we make our communities safer
by reducing the chance that ex-prisoners will return to a life of crime.

"Because we don't do enough of this today, about one-third of the people
released from prison commit new crimes and eventually go back."

Archer also wanted it clear that the recommendations from the ABA "are not
your typical criminal-coddling recommendations from out-of-touch advocacy
groups. They are the product of hard-headed, realistic assessment of the
problems in our criminal justice system."

He concluded: "We've spent more than 20 years getting tougher on crime. Now
we need to get smarter."

Having gotten tough again this session, perhaps the Legislature will get
smarter next time.