The opioid crisis has killed tens of thousands of addicts across Florida and locked up many more. The toll has plagued first responders, captured headlines across the nation and prompted the White House to declare a state of emergency in October.
Experts attribute much of that attention to the demographics of those dying. Unlike the crack cocaine crisis, primarily associated with communities of color, whites account for nine in ten opioid-related deaths in Florida and eight in ten opioid convictions.
But the policies used to combat the epidemic continue to be hardest on those with darker skin, a Herald-Tribune investigation found.
A four-part series — “One War. Two Races.” — shows how laws dating back to the height of the crack epidemic continue to hurt black defendants, even as the drug epidemic shifts out of minority neighborhoods.
The series is the culmination of two years of data-based reporting during which journalists analyzed millions of records across five databases to measure racial disparities in the war on drugs. They pored through boxes of court documents and crossed the state to interview criminal defendants, justice system officials, historians and researchers.
Reporting for the project began in earnest in late 2015 and resulted in the December 2016 publication of “Bias on the bench.” The groundbreaking series exposed racial disparities in Florida’s criminal justice system, with blacks serving much longer sentences than whites who committed the same crimes under similar circumstances.
The “Bias on the bench” investigation was acclaimed by journalists and legal professionals, earning recognition from 20 awards, including prizes from the Florida Bar and the Florida Public Defenders Association.
“Negotiated pleas take sentencing discretion out of the hands of the judge and leave absolutely no room for judicial bias in sentencing,” 12th Circuit Chief Judge Charles Williams wrote in a Dec. 12 letter published in the Herald-Tribune. “The idea of a negotiated plea is to actually take the discretion out of the hands of the judge, so the defendant has certainty of sentence, the defendant knows exactly what they will be receiving in exchange for the plea and the defendant agrees that the plea is in his best interest.”
In the face of this criticism, reporters and editors at the Herald-Tribune kept digging.
The newspaper focused its second leg on drug crimes, which have the widest racial disparities in sentencing. Reporters wanted to know why, and studied areas throughout Florida where racial disparities are most glaring — using five databases for clues.
The primary databank was from the Florida Department of Corrections, which tracks criminal punishments and notes the points defendants scored on their sentencing guidelines. These points are based on the nature and severity of the crime, as well as other factors such as past criminal history, use of a weapon and whether anyone got hurt. The more points a defendant gets, the longer the minimum sentence required by law.
The newspapers also relied on the Offender Based Transaction System, compiled by Florida’s court clerks. OBTS tracks every criminal case from arrest through appeal. It contains more than 80 million records from the years 2004 to 2016.
While different, both datasets showed similar conclusions.
According to the Department of Corrections data, black defendants are sentenced to 68 percent more time in lockup than white defendants for felony drug offenses.
OBTS shows that black defendants are sentenced to 67 percent more time for these crimes.
For information about overdose deaths, the availability of drug treatment beds and participation in drug court around the state, the Herald-Tribune also obtained other data from the Florida Medical Examiners Commission, the Department of Corrections and the Office of State Courts Administrator.
‘In a lot of jurisdictions, you can’t make comparisons that clean’
With more than 1.4 million records, the Department of Corrections database allowed reporters to compare punishments for drug offenses — including enhancements like drug-free zones or mandatory minimums — and measure the outcomes by the points scored at sentencing.
Florida legislators created the point system to ensure defendants committing the same crime are treated equally by judges and prosecutors.
But the Herald-Tribune found blacks often face disproportionate penalties — especially with drugs.
The newspaper proved this by grouping defendants who committed the felony drug offenses according to the points they scored at sentencing — a similar method to the one used for the analysis of “Bias on the bench.”
Last year, the newspaper grouped defendants together by their scores, rounding down decimals to clean numbers. For example, anyone who scored from 30 to 30.9 points would go into one group, while anyone who scored from 31 to 31.9 would go in another, and so on.
Reporters then calculated average sentences for defendants within each point range and took the average of those averages as its final number for sentences doled out within judicial circuits, counties and by individual judges.
The Herald-Tribune used this method again this year to determine the basic trends in sentencing for drug crimes across the state. But when it came analyzing drug-free zones and mandatory minimums, the method had to be altered to account for smaller sample sizes.
Reporters split the defendants into the same increments that determine the severity levels for felonies in Florida, as set by the state Legislature.
For instance, a Level 5 Felony in Florida scores 28 points on the guidelines. A Level 6 Felony scores 36 points, and a Level 7 Felony scores 56 points. Any defendant who had between 28 and 35.9 points — a Level 5 score — would go into one bucket, anyone with between 36 and 55.9 would go into the next, and defendants with scores from 56 to 73.9 would go into another pool.
The exact breakdowns for each level are as follows:
Level 9 Felonies: 92 points
Level 8 Felonies: 74 points
Level 7 Felonies: 56 points
Level 6 Felonies: 36 points
Level 5 Felonies: 28 points
Level 4 Felonies: 22 points
Level 3 Felonies: 16 points
The Herald-Tribune then evaluated how judges sentenced black and white defendants within each point range, assigning a weighted average based on the sentencing gap.
If a county or judicial circuit had a weighted average of 45 percent, it meant that black defendants received 45 percent more time behind bars than white defendants with similar point scores.
John Kramer, a professor emeritus of criminology at Pennsylvania State University, said the Herald-Tribune method was a good way of measuring racial discrepancies while still taking prior records into account.
“It’s about the best you can do,” Kramer said. “A lot of times researchers will break these kinds of groupings into what are called quartiles — but doing it by every level of felony is much better.”
Marc Mauer, executive director for The Sentencing Project, a Washington D.C.-based research and advocacy center, agreed.
Mauer said given the smaller sample sizes, grouping mandatory minimum cases into the point ranges designated by each level of felony is a sound comparison.
“It sounds like the best thing to do under the circumstances,” Mauer said. “The system comes from the Legislature, so they set these distinctions for felonies for a reason, and with prior record already factored into the points, along with other relevant variables, it gets you to where you need to go. In a lot of jurisdictions, you can’t make comparisons that clean.”
Cassia Spohn, professor and director of Arizona State University’s school of criminology and criminal justice, said the methodology used by the newspaper was “careful” and “appropriate.”
She said when prosecutors have discretion on enhancements like drug-free zones, they are more likely to file them if the defendant is a minority.
“You can not say these (defendants) are identical, but you can say they are similarly situated,” Spohn said. “It would be consistent with other research.”
‘It’s essential we make this data more assessable’
Reporters also used OBTS to back up their findings. The massive database is very difficult to clean. Every time there is a change in a defendant’s case, a new line appears. For many defendants, there can be as many as 15 lines. The number of duplicate lines has to be reduced before accurate comparison is possible.
Cleaning OBTS data was among the more challenging aspects of the project. But doing so allowed reporters to compare defendants based on whether they are charged with a drug-free zone enhancement — a factor that could add years to a felon’s punishment.
Unlike DOC, the OBTS data does not include points assigned to criminal defendants at sentencing. That means there is no way in the OBTS data to compare defendants with similar records.
But as long as OBTS data is properly cleaned, it can be used for counting the number of defendants charged and convicted within drug-free zones, according to James Unnever, a professor of criminology at the University of South Florida Sarasota-Manatee.
Unnever was less confident than other scholars in the Herald-Tribune’s method for determining average sentence lengths.
“The best estimation procedure would be to run a multiple regression analysis that simultaneously takes into consideration the total point score and any aggregating or mitigating factors,” Unnever said in an email message. “However, it is unlikely that doing so would produce significantly different results than the methodology employed by the Herald-Tribune. Their methodology matches similar cases and determines whether like cases get like outcomes.”
Because both the DOC and OBTS datasets have drawbacks, the Herald-Tribune added another safeguard.
For the two prosecutors featured in the series, reporters and editors opened each of their drug cases to study the circumstances, including the points scored at sentencing, the outcomes of the cases and the circumstances surrounding their decisions.
Journalists obtained prosecutor case numbers from state attorneys’ offices and created a database containing the defendant’s name, the names of all lawyers and judges involved in the case, the initial charges, the final disposition, the points scored at sentencing and the sentence itself.
By doing this, the newspaper ensured that trends illustrated by OBTS and DOC matched the reality on the ground.
Researchers praised the efforts as vital to ensure data collected by the criminal justice system is transparently reported to the public.
“Joe Lawmaker cannot pull up this information for their average taxpayers,” said Deborrah Brodsky, director of the Project on Accountable Justice, a collaboration between Florida State University, Baylor University and St. Petersburg College, among others. “It’s unacceptable, with the sophistication of data we have, that we still cannot do that. It’s essential we make this data more assessable and continue these types of reports and studies.”
Editor’s Note: Anyone interested in running either the DOC or OBTS data can contact Investigations Editor Michael Braga at 941-361-4877. We will help you establish an account with Google BigQuery — a SQL platform that contains all our records. You can find the queries we used by clicking on this link.
THE TEAM BEHIND THE WORK
Matthew Sauer – Executive Editor
Michael Braga – Investigations Editor
Josh Salman – Lead Reporter
Dak Le – Data Reporting and Site Development
Jennifer Borresen – Graphics and Site Development
Mike Lang – Photo and Video
Kat Dow – Copy Editing