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 Scales of Justice

Change the Status Quo


Summary: We need to put together a petition for referendum to repeal and eliminate the constitutional power of the Florida Commission on Offender Review ("FCOR") under Article IV, § 8 of the Florida Constitution and statutory discretion to grant or deny parole or conditional releases to persons under sentence for crime pursuant to Chapter 947 of the Florida Statutes. 


Explanatory Statement: Presently, there is no constitutional or statutory right to parole in Florida. Thus, prisoners do not have a liberty interest in parole or the calculations of a presumptive parole release date because the ultimate parole decision is a matter of discretion of the FCOR. The laws should be amended to "presumption for parole or conditional release to persons …" with a set of objective guidelines that provide eligibility criteria before release: GED, programing/vocational training and achievement, and no disciplinary report within reporting period. As it stands, when justice becomes discretionary it becomes arbitrary. 


FCOR contends they perform a vital role in Florida's criminal justice system by preserving the autonomy needed in post release decisions affecting convicted offenders. Their justification for such unbridled authority in release decisions is predicated upon protecting communities by ensuring the health, welfare, and safety of society. 


FCOR's discretion under Florida Statutes brings to kind the old adage: Is the fox guarding the hen house? 


We need to move toward creating a system that would solve the unpredictability and disparity in parole decisions. It is a foregone conclusion that FCOR will deny parole to a majority of the 4,275 prisoners who are eligible for parole according to FCOR's long range plan for 2019/20 available to view on their website In fact, FCOR's discretion is an important ingredient for meeting the demands of powerful special interest groups, such as victim right advocates and individuals who bequeath financial favors by and through confidential communications, which are privileged from use as evidence in challenges. Moreover, this agency, due to their personal independence and self-goverment, are independent agents who act in the capacity to make decisions that lack transparency. Thus, FCOR can decide which cases deserve consideration and which do not. FCOR has a "vested interest" in keeping parole-eligible candidates in prison under the guise of public safety. 


If a parole violator rates drop too much, then support for more FCOR field investigators-supervisors and larger budgets decline. And with regard to these bureaucracies: criminal justice legislators can hardly be expected to implement policies that would diminish the fraudulent importance of FCOR. The dominant goal for such professionals is to demonstrate their legal talent in order to enhance their future market value. 


As for parole and the interpretation of risk on parole release: The objective parole act guideline process has not efficiently accomplished what it was designed to do. An exhaustive study on recidivism along with the concept of risk would span subjects from mathematics to psychology to economic behavior, and include quantitative as well as qualitative analysis. Ultimately, the Florida parole authorities' interpretation of risk is highly subjective and personalized. 


It is important to reiterate the lack of clarity that now permeates the study of recidivism, but does so very skeptically. There are some very reasonable concerns about increasing public safety from a prisoner committing a future crime. The likelihood of recidivism crediting the long-term incarceration and participation in programs must indicate some degree of rehabilitation. Factors such as reduced risk of reoffending because of a prisoners' age should be considered low risk as well. 


Although Florida's current sentencing statutes no longer provides for parole, there are still approximately 4,275 inmates, sentenced before its elimination, and who remain eligible for parole consideration as of June 30, 2018. FCOR's constitutionally and statutorily responsible to make parole decisions is based on criteria objective parole guidelines, which is outdated to the present time. 


FCOR's unbridled discretion authorizes the use of various aggravating factors to establish a presumptive parole release date. One subjective factor, which should not factor into release decisions-is the nature or seriousness of the crime of conviction, and the nature of the weapon and multiple offenses underlying e crime of conviction. 


These subjective factors will never change-they cannot become less or more serious-and in any event, the nature and serious of the crime, weapon, underlying multiple offenses, if any exist were considered at sentencing and taken into account in the calculation for establishment of a convicted offenders initial presumptive parole date and his or her subsequent reviews as the reason to deny parole. The general point is these factors do not present an unacceptable risk of reoffending if released. Understandably, parole should be denied only if FCOR can prove that the individual has exhibited behaviors that indicate a public risk (repeat violent episodes in prison, refusal to participate in programs, aggressive correspondence with the victim, etc). 


While it's important to measure public safety, it is valuable to examine the endeavors-behavior of a life-sentenced prisoner the behavior in prison is likely to be predictive of the endeavors-behavior on release. FCOR should be mandated to outline a plan that includes in-prison programming participation and post-release community based programs to help the potential parolee overcome barriers for release inclusive of, providing transitional housing, employment and training programs operated by the workforce organization - Jay Moss


The Government of Florida by our efforts will clearly see the challenge to its authority. Hopefully they'll take notes and rethink outdated postulates. 


Under the pre-1983, laws provided under § 775.082(1), Florida Statutes states: "A person who has been convicted of a capital felony shall be punished to life imprisonment and shall be required to serve no less than 25 years before becoming eligible for parole ..." 


Lets start by balancing facts with pragmatism. Prisoners eligible for parole are those who committed: 1. Any felony committed prior to 10/1/1983 or those elected to be sentenced "outside the guidelines" for felonies committed prior to 7/1/1984 2. All other capital felonies committed after 10/1/1995, except: a.) murder or felony murder committed after 5/25/1994 b.) making, possessing, throwing, projecting, placing, or discharging a destructive device or attempt to do so which results in the death of another person after 5/25/1994 c.) first degree murder of a law enforcement officer, correctional officer, state attorney, or assistant state attorney committed after 1/1/1990 and, d.) first degree murder of a justice or judges committed after 10/1/1990 3. Any continuing criminal enterprise committed before to 6/17/1993 and, 4. Any attempted murder of a law enforcement officer committed between 10/1/1988 and 10/1/1995. 


Equally significant in 1994, the Florida legislators amended section 775.082(1) to eliminate parole eligibility. See CH. 94-228, § 1 at 1577, Laws of Florida. Thus, it would appear there are no mandatory minimum sentences remaining for the Florida Commission on Offender Review (FCOR) to evaluate to set initial presumptive parole dates (PPRD). As it stands, per FCOR, there are currently 4,275 prisoners sentenced under these previously existing law who are potentially eligible for parole release. See, FCOR Long Range Program 2019-20, available on their website., at 9-10. 


FCOR recognizes the Corrections Transition Program at Exxx CI, as a program designed to assist long-term prisoners in re-integrating back into society. In fact, FCOR selectively recommends participation in this program or grants parole thereafter. Florida legislators have the power to repeal and alter laws that expressly apply to those who have already served the minimum mandatory 25 year sentence. 


There is no question that, by lowering long-term or extensive PPRD's in certain instances and providing other forms of amelioration, its purpose shall be to bring PPRD's more in line with the view at people and Society change, as do views of punishment. Such a bill will have a "negative significant" prison bed impact as per FCOR, there are currently 4,275 prisoners who are potentially eligible for parole. With the different versions of technology, surveillance and monitoring available community parole supervisors should be able to examine a parolees life, question assumptions, and help to strengthen ties between the parolee and his community inclusive of, promoting success via rehabilitation and support. 


Florida legislators know the number and percentage of elderly prisoners has been increasing and will continue to increase for the foreseeable future, unless a change is made to FCOR's discretion on parole release decisions. In fact, the current cost to incarcerate elderly prisoners is approximately three times the cost of incarceration of younger prisoners with the cost continually increasing. Therefore, an alternative approach is necessary, because the cost of treating the medical needs of elderly prisoners and the overall cost linked to this segment of the population must be explored. 


Changes in the laws must be implemented for parole release to decrease the burden on taxpayers. Legislation should create some type of halfway house for parole-eligible and elderly prisoners who have no other living options, especially, for prisoners who have already served more than 25 years in prison, a better option than remaining in prison at Florida tax payers cost should be available. Surely, such a facility would be less taxing on societal resources than prison or long-term incarceration. Really, absent some type of creative solution, the burden on society to house prisoners will continue to spiral upwards. The prospect of a job is good as a majority of the men and women have retrained their thinking and developed a skill set to perform useful service. While social service assistance will be needed to reintegrate parole-eligible and elderly prisoners as productive members of society. FCOR realizes the cycle of reoffending becomes shorter for a elderly individual, as they age out of crime. 


Today legislation is need to repeal Chapter 947, et seq ., the law should provide, in pertinent part: "Prisoners eligible for parole should be subject to restrictions, the board shall release on parole ... any person confined in the Florida state prison before expiration of the term of confinement of his or her primary offense, defined as the longest sentence imposed by the court, including being paroled to consecutive sentences." Importantly, the actual extent of the diminished life expectancy resulting from long-imprisonment was addressed by the U.S. Sentencing Commission which defines a life sentence as 470 months ( for first-degree murder. just over 39 years). This is based on the median age at sentencing (25 years) the life expectancy of a person in general population is 64 years of age. See, U.S. Sentencing Commission Preliminary Quarterly Data Report at A-8, available at and Statistics/Federal _Sentencing_Statistics/Quarterly_Sentencing_Updates/USSC 2012, 3rd _Quarter_Report. pdf. In the alternative, a Petition referendum would have to be in compliance with Florida Statute 101.161(1) (2018). The idea of submitting the issue to popular vote in a referendum is a daunting task.!!!

The Heart of a Jailhouse Lawyer

After more than a decade of toiling in the front lines of prison litigation, the thing that sustains my fighting spirit more than anything else is my appreciation of the sacrifices of those who came before me. The progress they paid for with blood and sweat is slowly being chipped away by a prison system built on oppression and mercilessness.


The old guard of chain-gang lawyers are dying off one by one, and many of today's prison inmates are simply unaware of the brutal history of America's prison underworld, or of the costs that have been paid for the rights we prisoners now take for granted. Unfortunately, even less people in the general public are in any way concerned about what happens to the untold thousands of souls unfortunate enough to have fallen through the cracks of our broken system of "justice". If the next generation of prison litigators don't stand against the tide of oppressive policies, any semblance of humanity in prison will one day be forgotten.


Here in the state of Florida, where I have been incarcerated at for over 14 years, that tide has already taken a horrendous toll. The system has pretty much abandoned all hope of rehabilitation for its prison population. Rather than help inmates break the cycles of criminal thinking, the system here is actually designed to induce that very mindset.


Inmates are not paid for their labor, but are forced to pay hefty canteen prices to maintain any semblance of humanity. We are only given a small piece of soap each week to bathe with, and are served meals that only the most hardened of us can stomach. To pay for deodorant or dental floss, you must pay the cost. To enjoy a decent meal, you must pay the price. Without any legal means of earning even meager prison wages, indigent inmates are left with only one way to pay the state's cost: crime.


Making matters worse, DOC severely limits access to reentry programs and work release, preferring to use inmate labor for the benefit of the Department rather than for rehabilitation. Inmates are literally being left to fend for themselves - being detained for years in a state sponsered college of crime, with even those being "released" left with only their own devices for making ends meet. The question MUST be asked: what will it take for society to open its eyes to the reality of prison injustice?


Prison reform will not come by itself. It is up to this next generation of prison litigators to expose the deep-rooted problems plaguing today's prison systems. Even when the fight seems unwinnable, we must carry on without losing heart. The future depends on us, and for that reason hope must be kept alive. Viva la resistance!

Jay Moss



State v. Lewars Dec 13, 2018

The Supreme Court approved the decision of the Second District Court of Appeal in this case and held that release from a county jail after a defendant serves a sentence entirely in the county jail where the sentence would have required transfer to a Florida prison but for the accumulation of jail credit does not satisfy the language of Fla. Stat. 775.082(9)(a)1, which provides the definition of “prison releasee reoffender” (PRR).

The portion of the statute at issue requires the defendant, within the three years preceding his commission of qualifying offense, to have been “released from a state correctional facility operated by the Department of Corrections or a private vendor.” The Second District concluded that the language of the statute is not satisfied when a defendant is released from a county jail under the circumstances of this case. The Supreme Court affirmed, holding (1) the language at issue does not include release from a county jail; and (2) therefore, commission of a PRR-qualifying offense within three years of release from jail, rather than prison, does not satisfy the requirements of section 775.082(9)(a)1.


In the 36 years of practicing law as a certified paralegal specialist, I've watched a system where judges just weren't interested in my case or other prisoners cases, so they make it impossible to get relief on postconviction, Throwing down burdensome obstacles and slavishly placing adherence to procedural rule above the possibility of manifest injustice. Other law clerks beside myself, who have equal or more years under their belt at xxx provided community service. Our role as educators centers around providing postconviction clinics - non and DNA cases, and issues in the legal system. 

Our former Chief Justice William Rehnquist wrote in the landmark opinion, Herrera v. Collins that " Clemency is deeply rooted in our Anglo-American tradition of law, and is the historic remedy for preventing miscarriages of justice where the judicial system has been exhausted ... our judicial system, like human beings who administer it, is fallible ... the traditional remedy for claims of innocence based on new evidence, discovered too late in the day to file an new trial motion, has been executive clemency."  Prisoners can only move the Governor and his Cabinet to commute their sentences to a shorter term of years while incarcerated, and should have exhausted all remedies for relief before urging the board to take their Herrera role seriously, and provide a kind of fail-safe protection, a way to catch errors in the legal system.


Jailhouse Lawyers Who We Are, And Where We Come From

Overview Where We Come From. In February 1965 William Joe Johnson, who was serving a life sentence in the Tennessee State Penitentiary, was transferred to the maximum security building in the prison for violation of a prison regulation which provided: " No inmate will advise, assist or otherwise contract to aid another, either with or without a fee, to prepare Writs or other legal matters. It is not intended that an innocent man be punished. When a man believes he is unlawfully held or illegally convicted, he should prepare a brief or state his complaint in letter form and address it to his lawyer or a judge. A formal Writ is not necessary to receive a hearing. False charges or untrue complaints may be punished. Inmates are forbidden to set themselves up as practitioners for the purpose of promoting a business of writing writs." In July 1965, Johnson, filed in the United States District Court for the Middle District of Tennessee a " motion for law books and a typewriter," in which he sought relief from his confinement in the maximum security building. The District Court treated his motion as a petition for a writ of habeas corpus and, after a hearing, ordered him released from disciplinary confinement and restored to the status of an ordinary prisoner. The District Court held that the regulation was void because it in effect barred illiterate prisoners from access to federal habeas corpus and conflicted with 28 U.S.C. section statute 2242, which read at the time: "Application for a writ of habeas corpus shall be in writing signed and verified by the person for whose relief it is intended or by someone acting in his behalf." By the time the District Court order was entered, Johnson had been transferred from the maximum security building, but he had been put in a disciplinary cell block in which he was entitled to fewer privileges than were given ordinary prisoners. Only when he promised to refrain from giving assistance to other inmates was he restored to regular prison conditions and privileges. At a second hearing, held in March 1966, the District Court explored these issues concerning the compliance of the prison officials with its initial order. After the hearing, it reaffirmed its earlier order. The state appealed. The court of appeals for the Sixth Circuit reversed, concluding that the regulation did not unlawfully conflict with the federal right to habeas corpus. According to the Sixth Circuit, the interest of the State in preserving prison discipline and in limiting the practice of law to licensed attorneys justified whatever burden the regulation might place on access to federal habeas corpus. Then in 1968 Johnson petitioned the United States Supreme Court to hear the case by filing a petition for certiorari. On certiorari, the Supreme Court, Mr. Justice Fortas, held that the state prison regulation barring inmates from assisting other prisoners in preparation of petitions for post- conviction relief was invalid as in conflict with federal right to habeas corpus, despite State's claim that requirement was necessary to maintain prison discipline, where State did not provide available alternative to assistance provided by other inmates. Analysis. In reversing the lower court's decision, the Supreme Court said that there can be no doubt that Tennessee could not constitutionally adopt and enforce a rule forbidding illiterate or poorly educated prisoners to file habeas corpus petitions. Here Tennessee has adopted a rule which, in the absence of any other source of assistance for such prisoners, effectively does just that, said the Court. The Court quoted the District Court's conclusion that "[f]or all practical purposes, if such prisoners cannot have the assistance of a 'jail-house lawyer, ' their possibly valid constitutional claims will never be heard in any court." 252 F.Supp., at 784. It also said that jails and penitentiaries included among their inmates a high percentage of persons who are totally or functionally illiterate, whose educational attainments were slight, and whose intelligence was limited. And it appeared to be equally true of Tennessee's prison facilities. The Court concluded that unless and until the State provided some reasonable alternative to assist inmates in the preparation of petitions for post conviction relief, it may not validity enforce a regulation such as that here in issue, barring inmates from furnishing such assistance to other prisoners. Creation of Jailhouse Lawyers. With this ruling, the highest Court in the Nation set the rule of law that established Jailhouse Lawyers. A case that would set the stage for decades to come and would define our place in history and as advocates for the rights of prisoners. A status that would come with a high price to pay, as some corrections officials would not like the fact that prisoners could now legally challenge the policies set by the Dept. of Corrections and other prison administrators. And such challenges would be legal and free from reprisal. Also, any reprisal could also be challenged and would enjoy Constitutional protection by the principles set out in the US Supreme Court case Johnson v Avery, 89 S. Ct. 747(1969)