Pre-arrest diversion bill offers defendants a second chance

By John Lantigua


It costs an average $49.24 a day or $18,022 per year to house an inmate in a Florida prison.
It costs an average $49.24 a day or $18,022 per year to house an inmate in a Florida prison. Florida Department of Corrections

The Rev. Clinton Preston is youth minister at Peaceful Zion Missionary Baptist Church in Miami’s Liberty City.

Preston, 37, was raised in the predominantly African-American neighborhood. He has watched some young men of his generation improve their lives, while others were arrested for minor offenses that snowballed into hardcore unemployment, repeated frustrations, and, sometimes, more serious crime.

When Preston heard about House Bill 367 (SB 448), now before the Florida legislature, he whistled in appreciation. He joined others in the ministry, law enforcement, the legal and civil rights communities in support

“Something like this will mean a lot in neighborhoods like this,” he said. “And it will improve relations with law enforcement.”

HB 367 would make available “pre-arrest diversion” to people 18 or over who commit certain misdemeanors. Two Florida counties already implement the program, covering offenses such as possession of small amounts of marijuana, underage drinking, shoplifting up to $50, disorderly conduct, trespass, and non-domestic battery. To qualify, the person must have a previously clean record, or at least no serious offenses, a threshold to be set by the individual jurisdiction.

The person would receive a civil citation, be required to pay restitution to victims and any program fees, undergo behavioral intervention such as drug counseling, and do community service.

Those completing the program would avoid an arrest record in state and federal files. Such records can keep young people from getting jobs or student aid and have adversely affected minority youth in particular. The program resembles the less punitive, cost-saving procedures successfully adopted across Florida in recent years in dealing with juveniles.

“This will make a huge difference,” said Preston. “I can think of young men I’ve known here, talented young men, men who used to come to church, who if they had gotten a second chance at the certain point in their lives wouldn’t have taken the paths they took,” in some cases those paths led to prison.

The bill does not require any Florida law enforcement agency to adopt the plan. But it strongly encourages them to do so. The model for the program is Leon County, which adopted adult pre-arrest diversion in 2013. The latest figures show that 1,113 adult civil citations have been issued; 50 percent to blacks; 45 percent to whites. Average age was 24. Of those, 83 percent graduated and only seven percent have been rearrested for another crime.

Pinellas County implemented adult diversion in October 2016. Sheriff Bob Gualtieri said about 45,000 people per year are booked into his jail and some 2,800 are being held at any one time. He says it costs $126 per day to keep a person in jail. This does not count police time expended for bookings, the cost of arraignments, subsequent court time, record keeping, and taxpayer-funded use of public defenders. He says most persons who commit the minor offenses covered end up sentenced to community service anyway. The program saves the costs in between.

Miami-Dade and four other counties have adopted adult civil citations for possession of 20 grams or less of marijuana, but not the more inclusive pre-arrest diversion programs of Leon and Pinellas.

The massive costs of incarceration, not just in jails but U.S. prisons, have grabbed the attention of political activists of all stripes, leading to bipartisan efforts to reduce the numbers. Florida spends more than $2.3 billion per year on prisons to house about 100,000 inmates. According to latest figures, some 50,000 more persons are in county jails, at a cost of hundreds of millions more.

Gualtieri says adult diversion saves money, but that isn’t the reason for the program.

“It is just the right way to treat people,” he says. Young people who commit minor offenses “shouldn’t be saddled with that the rest of their lives.”

Lia Gaines, a Palm Beach County NAACP leader, agrees.

“Today you are criminalizing adolescent behavior and poor judgment by young adults,” she says. “Arrest records are used to deny people not only employment but housing and other services, including student aid. You help construct the prison pipeline.”

Retired Judge Tom Petersen, who spent 50 years on the bench in Miami-Dade, mostly in juvenile court, says he saw endless waste of money and lives.

“We spend too much money dropping young people into court,” he says. “Those arrests have a devastating effect on their ability to get jobs. A lot of if these kids are marginalized to begin and they end up more frustrated, more alienated, more marginalized. Great damage is done. Luckily, we are moving toward civil citations for these offenses. It’s about time.”

John Lantigua is an investigator for the American Civil Liberties Union (ACLU) of Florida.