A SLAP IN THE FACE IN THIRD GRADE LAUNCHED ALVIN WELLINGTON BARLOW ON A SUCCESSFUL LEGAL CAREER. HIS CURRENT GOAL: TRANSFORMING FLORIDA’S CRIMINAL JUSTICE SYSTEM. AND HE’S DOING IT RIGHT NOW.
JACKSONVILLE BY THE FLORIDA COURIER STAFF– Looking back, Attorney A. Wellington “Al” Barlow slowly but surely developed an uneasiness about the criminal justice system as soon as he was professionally exposed to it.
Barlow is now one of Florida’s most distinguished lawyers. He earned a Bachelor of Arts degree in political science in 1983 and went on to earn a Juris Doctor (law) degree in 1985, both from the University of Florida.
He is licensed to practice law in both Florida and Georgia, and now has more than 35 years of trial court experience protecting and advancing the constitutional rights of clients in both civil and criminal litigation.
Throughout his legal career, he has fought for improvements to the administration of justice. One of his key issues is to maintain Floridians’ constitutional right to elect and replace trial court judges – the only way to diversify the state judiciary that is overwhelmingly White.
Another of Barlow’s major concerns is establishing an unbiased method of handing down criminal sentences, either after plea bargaining or trials, when defendants are punished.
A WAKE-UP CALL
As a law student in the 1980s, Barlow served as a prosecutor intern in the office of the Jacksonville State Attorney. That’s when he began to notice troubling differences in the criminal justice system.
After becoming a licensed lawyer, he switched sides and served two years in the Jacksonville public defender’s office. That’s when he began to notice that some lawyers got better plea deals from prosecutors than others.
Once he started practicing law on his own, the disparity became even more noticeable.
In 1997, Barlow defended a young Black man in a theft case. As a plea deal, a White male prosecutor recommended probation and no criminal record to a White defendant. Barlow’s client, who was charged with the same crime and under almost identical circumstances as the White defendant, was offered time in jail with a criminal record.
When Barlow brought the issue of race to the prosecutor’s attention, the man was surprised and puzzled. Then he gave Barlow’s client the same break as he did the White defendant.
“That’s when it hit me,” he said in an exclusive interview with the Florida Courier. “A lot of this stuff is not intentional. It’s unintentional.
“The problem was that the prosecutor was willing to give someone a break that he could identify with. He wasn’t willing to do that for somebody that he couldn’t identify with.”
In Barlow’s mind, that is what disparate treatment in Florida’s courtrooms, and courtrooms around America, is all about.
‘ALWAYS VERY SUBTLE’
“I have not witnessed many situations…that involved outright discrimination that was bold and in your-face-type mistreatment,” he explained. “To the contrary, it was always very subtle, whereby the person who was perpetrating the disparate treatment did not even seem to know what they were doing. It was based upon, ‘That’s just the way it is.’
“The perpetrator generally tends to graciously bestow some benefit, while withholding the exact same benefit to another. It usually occurs in the use of discretion,” he said.
A JUDGMENT CALL
According to the Cornell Law School Legal Information Institute, the word “discretion” is legally defined as “the power of officials to act according to the dictates of their own judgment and conscience. Discretion is abused when the judicial action is arbitrary, fanciful, or unreasonable.”
Prosecutors have a great amount of discretion in offering plea deals to defense attorneys and unrepresented defendants. Prosecutors can use jail time, fines, court costs, probation, community service, pretrial intervention, and whether a defendant has a criminal record, among other factors, as leverage to negotiate a resolution of a criminal charge.
The benefit of plea deals to judges and prosecutors is to move hundreds, if not thousands, of criminal cases through the judicial system. Defendants benefit by avoiding the uncertainty and expense of going to trial, losing, and perhaps getting punished even more severely (even though being punished for going to trial in losing is unconstitutional).
Explains Barlow: “Any time a human being has the freedom to act or decide as they choose with little to no guidelines, or restrictions, who they really are on the inside will speak very loudly by the way the exercise their discretion.”
What motivated Barlow to try to devise such a solution to a tragically chronic problem -criminal sentencing disparity – that destroys lives? Why fight within a system that he believes has consistently unfair outcomes? He points to specific incidents in his life’s narrative.
He was in the third grade when a White female teacher slapped him and kicked him for jumping in and out of line as he and his classmates walked back to class from the school cafeteria.
“She slapped me with everything she had. Her palm print was on my face. Then she kicked me down like a dog,” he reminisced.
“I couldn’t do anything to that woman. From that moment on, I stood up for people who could not defend themselves.” (The Jacksonville NAACP branch got involved, and the woman was eventually fired.)
“Don’t get me wrong,” he explained. What I did was wrong. But my punishment was excessive in relation to the offense.”
Another motivation is a client he represented in 2010 who was acquitted on one felony charge after a jury trial and convicted on a second. The Black teenager – a recent high school graduate with a clean criminal record and multiple college football scholarship offers – was sentenced to 15 years in a Florida state prison, the maximum under Florida’s criminal sentencing guidelines.
Barlow found out later that another defendant charged with the same crime under almost identical circumstances was sentenced to eight years. However, that information was not available when Barlow’s client was sentenced.
Barlow says that the results of this case kept him awake at night for years.
A NEWSPAPER ARTICLE
In December 2016, the Sarasota Herald Tribune newspaper published its ground-breaking investigative news series of articles titled, “Bias On the Bench.” It began as follows:
Justice has never been blind when it comes to race in Florida.
Blacks were first at the mercy of slave masters. Then came Jim Crow segregation and the Ku Klux Klan. Now, prejudice wears a black robe.
Half a century after the civil rights movement, trial judges throughout Florida sentence blacks to harsher punishment than whites, a Herald-Tribune investigation found.
They offer blacks fewer chances to avoid jail or scrub away felonies.
They give blacks more time behind bars – sometimes double the sentences of whites accused of the same crimes under identical circumstances.
Florida lawmakers have struggled for 30 years to create a more equitable system.
Points are now used to calculate sentences based on the severity of the crime, the defendant’s prior record and a host of other factors. The idea is to punish criminals in Pensacola the same as those in Key West – no matter their race, gender or wealth.
But the point system has not stopped discrimination.
THE LAST STRAW
The day after he began reading the newspaper article, Barlow wrote “The Codification of Common Sense.”
That document – and a slap and kick he received as a third-grader more than 50 years ago, resulting in his own disproportionate punishment – brought Barlow’s computerized Equity in Sentencing Analysis System (ESAS, pronounced “E-sass”) into reality.
Next in this series: The Revolution: How the Equity in Sentencing Analysis System works
Note: This story has been edited from the version published in the ‘hard copy’ of the August 29, 2020 issue of the Florida Courier.