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A Case for Reform - Florida's Cap on Rehabilitation Credits

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A CASE FOR REFORM

FLORIDA’S CAP ON
REHABILITATION CREDITS
WHAT'S INSIDE
Summary.................................................................................... 3
Overview.................................................................................... 4
Conclusion................................................................................. 9
Endnotes.................................................................................... 9
Acknowledgments.................................................................... 10

SPLC@ Southern Poverty Law Center

Electronic copy available at: https://ssrn.com/abstract=3820798

ABOUT THE SOUTHERN POVERTY LAW CENTER

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organization founded in 1971 and dedicated to fighting hate and bigotry, and to seeking justice
for the most vulnerable members of society.

For more information about

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visit www.splcenter.org

© 2020 Southern Poverty Law Center. All rights reserved.

2

FLORIDA’S CAP ON REHABILITATION CREDITS

Electronic copy available at: https://ssrn.com/abstract=3820798

SUMMARY
Florida’s arbitrary cap on the ability of people in prison
to earn time off their sentence for good behavior — also
known as “gain time” — effectively requires people to serve
a minimum of 85 percent of any sentence.
This cap on rehabilitation credits toward time served on
prison sentences inflates the length of time people spend
incarcerated to satisfy prison sentences, but without a
definite benefit to public safety and at great cost to taxpay‑
ers. Even for people convicted of minor offenses, the cap
on rehabilitation credits makes it impossible to satisfy any
sentence in a reasonable amount of time after rehabilita‑
tion. It not only significantly increased the average prison
stay by 22 percent over the last decade, but also took away
incentives for good behavior or participation in rehabilita‑
tion programs aimed at reducing recidivism.
With over 96,000 people incarcerated in state pris‑
ons, Florida has the 11th‑highest incarceration rate in the
nation — costing the state over $2.7 billion a year.1 People of
color are also imprisoned at a disproportionate rate; African

Americans, for example, make up 47 percent of the Florida
prison population, but only 17 percent of the state population.2
Reinstating the system for good behavior rehabilitation
credits as it existed before 1995, and increasing incentive
or education, training and program rehabilitation cred‑
its would make an immediate impact on unnecessarily
long prison sentences. An analysis of 2019 Florida prison
data shows the potential benefits of reforming the cap on
rehabilitation credits for currently incarcerated people
and for the state overall:

-

Reinstating the previous good behavior credits system
could produce earlier releases for over 11,000 incarcer‑
ated people in the first year, if implemented retroactively.
What’s more, expanding incentive rehabilitation cred‑
its retroactively could produce earlier releases for over
18,000 incarcerated people. If retroactively implemented
together, these reforms would mean a total of 24,000 peo‑
ple could be released in the first year of such reforms.

WITH OVER 96,000
PEOPLE INCARCERATED
IN STATE PRISONS,
FLORIDA HAS THE 11TH‑
HIGHEST INCARCERATION
RATE IN THE NATION.

Restoring good behavior credits and expanding incen‑
tive rehabilitation credits could shorten the average prison
sentence by 18 months if enacted together while adjusting
the cap on rehabilitation credits to require a minimum of
65 percent of an incarcerated person’s prison sentence is
served. These measures would also decrease racial dispar‑
ities in Florida’s prison population by 35 percent.

-

Restoring good behavior credits and expanding incen‑
tive rehabilitation credits could save Florida an estimated
$1.7 billion and $1.8 billion, respectively, which could be
reinvested in programs addressing recidivism and reha‑
bilitation. If implemented while eliminating the cap on
rehabilitation credits, Florida could save over $2.6 billion.

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3

OVERVIEW

4

benefit from incarcerating such a large population of older
people: Less than 10 percent of people over the age of 50 tend
to recidivate when released, compared to almost one quarter
(24.7 percent) of the overall prison population.8 Incarcerating
an aging prison population is also more expensive due to
rising health care costs. In 2018, health care expenses com‑
prised 23.7 percent of an incarcerated person’s daily prison
cost in Florida, compared to 18.6 percent in 1995.9

FLORIDA PRISON SENTENCES
AND ELDERLY PRISON POPULATION

--

Florida’s Average Prison Sentence (Years)

6 yrs

5.4

5 yrs
4 yrs

4.1

4.3

4.1

25,000

20,000

4.5

15,000
3 yrs
10,000
2 yrs
1 yr

5,000

11111111

1997

2000

2005

2010

Incarcerated People over Age 50

Florida’s Elderly Prison Population

Average Prison Sentence (Years)

As harsher sentencing policies became increasingly popular
after the passage of the 1994 federal crime bill, caps on reha‑
bilitation credits forced people to serve longer portions of
their prison sentences. The federal government encouraged
states to enact stricter mandatory time‑served requirements
in exchange for federal funding for prison construction and
law enforcement. Florida responded by enacting its own
cap on rehabilitation credits (also known as the “85 Percent
Rule”) which requires incarcerated people to serve a man‑
datory minimum of 85 percent of their sentence before
becoming eligible for release.
Florida’s cap on rehabilitation credits, however, goes far
beyond the federal crime bill’s standard by requiring that
everyone with a prison conviction – regardless of the nature
and severity of the offense — serve a minimum of 85 percent
of their sentence. Consequently, the state’s prison population
has exploded by 65 percent since 1995 as people are forced to
serve longer sentences at a rapidly growing cost to taxpayers.
Still, this commitment to incarceration offers little evi‑
dence of its positive impact on public safety.3 The average
prison stay in Florida increased by 33 percent from 1996
to 2014,4 while the number of people with sentences of 10
years or more tripled since the cap on rehabilitation credits
took effect.5 Today, chronically overworked prison personnel
struggle to keep overcrowded prisons safe, a problem that
would cost an estimated $90 million and require hundreds of
new personnel to address.6
The cap on rehabilitation credits has also produced a gray‑
ing prison population. The percentage of people in prison in
Florida over the age of 50 has more than quadrupled from 5.3
percent in 1995 to nearly a quarter (24.2 percent) of the state
prison population in 2018.7 Research, however, shows little

2014

FLORIDA’S CAP ON REHABILITATION CREDITS

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15

--

% Change in Prison Population

PERCENTAGE CHANGE IN
FLORIDA PRISON POPULATION
AND ADMISSIONS
Percentage Change in
Prison Population from
3 Years Prior
Percentage Change in
Prison Admissions from
3 Years Prior

10

10.1%
4.2%

5

-0.4%

0
-5

-1.3%

-2.3%

-0.5%

-1.7%

-9.0%

-10.0%

-15

-3.1%

-3.8%

-4.0%
-7.3%

-10

-11.3%

-9.9%

-14.8%
-18.0%

-20
2010

2011

Even with significantly declining prison admission rates
over the past decade, the size of Florida’s prison popula‑
tion has remained fairly stagnant by comparison. This is a
direct result of the cap on rehabilitation credits, which forces
longer stays in prison before a sentence is satisfied. It also
solidifies racial disparities in the prison population.

GOOD BEHAVIOR AND INCENTIVE
REHABILITATION CREDITS

-1.3%

Before the cap on rehabilitation credits was enacted in the
mid-1990s, people could shorten their sentences through
both good behavior rehabilitation credits (referred to in stat‑
ute as “basic gain time”) and incentive rehabilitation credits
(referred to in the statute as “incentive,” “educational,” and
“meritorious” gain time). The 15 percent cap on rehabilita‑
tion credits has not only significantly increased the average
prison stay by 22 percent over the last decade, but also took
away incentives for good behavior or participation in reha‑
bilitation programs aimed at reducing recidivism.
Good behavior rehabilitation credits allowed people to
reduce their sentence by 10 days for every month of their sen‑
tence. This time was awarded as a lump sum upon entering
prison, regardless of the convicted offense, and could only
be forfeited based on a person’s lack of good behavior while
incarcerated. For example, a person sentenced to five years, or
60 months, in prison received a lump sum of 600 days of good
behavior rehabilitation credits – enough credits to reduce
their sentence by more than 1.5 years if they are not forfeited.
A person could also earn incentive rehabilitation credits
for exemplary behavior, extraordinary service, and partic‑
ipation in various prison education and vocational training
programs. Incentive rehabilitation credits could accumulate
up to 20 to 25 days per month served by people convicted
of crimes before Oct. 1, 1995, and up to 10 days per month
served for convictions that occurred afterward.
After Oct. 1, 1995, Florida’s cap on rehabilitation credits
eliminated good behavior rehabilitation credits and capped
incentive rehabilitation credits to 15 percent of a person’s

2012

2013

2014

2015

2016

2017

2018

sentence. These changes create an arbitrary mandatory
minimum length of stay that disregards a person’s ability
to demonstrate rehabilitation and merit an earlier release
without posing a public safety risk. In fact, a study by the
Pew Center on the States estimated that 14 percent of peo‑
ple with nonviolent convictions (2,640 people) could have
been released without any recidivism risk, ultimately saving
Florida taxpayers $54 million in prison expenses.10

REHABILITATION CREDIT CAP REFORMS IN THE SOUTH
LOUISIANA
LA Rev Stat § 15:571.3; LA Rev Stat § 15:828
Increased the availability of rehabilitation credits for
participating in job skills, treatment and rehabilitation
programs from 250 to 360 days. Also created a
substance abuse release program for people with first–
or second–time nonviolent drug offenses who
are within a year of their scheduled release.
MISSISSIPPI
MS Code § 47-5-138
Any person under the age of 21 convicted of a
nonviolent offense is not subject to Mississippi’s
cap on rehabilitation credits.
SOUTH CAROLINA
SC Code § 24-13-210
A person not convicted of an offense that bars parole
– also known as a “no parole offense” – can earn up to
20 days for every month served in prison.
TENNESSEE
TN Code § 41-21-236
A person may earn up to eight days per month
served for good behavior, and eight days a month for
participation in prison programs. Good time credits
may reduce a prison sentence by up to 30 percent.
TEXAS
TX Gov. Code §498.002 - §498.003
A person can accrue up to 15 days of good time credit
for every 30 days served. These credits are earned
for good behavior and participation on prison work
and educational programs.

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5

OVER 24,000 PEOPLE COULD
BE RELEASED IN THE FIRST
YEAR IF THERE WAS NO CAP
ON REHABILITATION CREDITS.

REHABILITATION CREDIT CAP REFORMS
THROUGHOUT THE SOUTH

Recognizing how longer prison sentences contribute to more
expensive and overcrowded prisons, potentially increase the
risk of recidivism and no longer bring in additional federal
funding, several states reformed their rehabilitation credit
caps, including states throughout the South.
In most cases, state reforms were designed to encourage
faster rehabilitation and safe release for people with lower
level nonviolent and drug convictions. States like Oklahoma,
Tennessee and Kentucky revised their caps on rehabilitation
credits to only apply to the most dangerous offenses.11

REHABILITATION CREDIT CAP REFORM OPTIONS
FOR FLORIDA

As states across the country are reforming their caps on
rehabilitation credits, Florida could reap similar benefits
from doing the same. Reform options could involve rein‑
stating basic good behavior rehabilitation credits, increasing
opportunities to earn incentive rehabilitation credits
through participation in educational and vocational pro‑
graming – or both – while allowing rehabilitation credits to
accrue beyond 15 percent to 35 percent of a sentence. Any
of these changes would save the state millions in tax dollars
that could be reinvested in programs addressing recidivism,
rehabilitation and racial disparities.
The Southern Poverty Law Center analyzed individuallevel prison population data from the Florida Department of
Corrections. The information, comprised of data as of May 14,

2019, included information about a person’s convicted offense,
length of prison sentence and personal demographics.12 The
prison population at that time was over 96,000 people, with
an average prison sentence of 4.3 years.13 Using this data, we
were able to calculate how many people would be impacted
if good behavior rehabilitation credits were restored and
incentive rehabilitation credit opportunities were extended
in Florida at the same time the rehabilitation cap is reduced
from 85 percent to 65 percent. We also assessed what impact
the change would have on sentence lengths and racial dispar‑
ities, as well as savings that could be realized.
Restoring good behavior credits and expanding
incentive rehabilitation credits could produce
earlier releases for over 11,000 to 18,000 incarcerated people in the first year, respectively,
if implemented retroactively. If retroactively
implemented together with no cap on rehabilitation credits, over 24,000 people could be
released in the first year in Florida.
Thousands of people incarcerated in Florida prisons could
be released early under these reforms and would otherwise pose
little to no risk to public safety. If implemented retroactively
for currently incarcerated people, the most immediate impact
from rehabilitation credit reform would be for people with
shorter sentences – usually people with convictions for nonvi‑
olent crimes. The Urban Institute found that if rehabilitation
credits were reformed and expanded in Florida, the vast major‑
ity of people released early would not be re-arrested during the
remaining time they would have spent in prison.14 Additionally,
an estimated 34 percent of the entire Florida prison population
would not be re-arrested at all if released early.
Restoring good behavior credits and expanding
incentive rehabilitation credits could shorten
the average prison sentence by 18 months if
enacted together while adjusting the cap on
rehabilitation credits to 65 percent. These measures would also decrease racial disparities in
Florida’s prison population by 35 percent.

►······· · ·· ··· ··· ···· ··· ····· · ···· ··· ·· · ··· ·· ·· · ········· · ·· ··· ··· ···· ··· ····· · ···· ··· ·· · ··· ···· · ······· ··· ·· ··· ··· ···· ··· · ········· ··· ·· · ··· ···· ········ ··· ·· ··· ·· · ···· ··· · ········· · ·· ·· · ··· ···· ········ · ·· ·· ··· ·· · ···· ··· · ········· · ·· ··· ··· ···· ········ · ···· ··· ·· · ·· ·· · ·

34%
6

An estimated 34% of the entire Florida prison population
would not be re-arrested at all if they were released early.

FLORIDA’S CAP ON REHABILITATION CREDITS

Electronic copy available at: https://ssrn.com/abstract=3820798

AVERAGE PRISON SENTENCE (MONTHS)
FLORIDA PRISON POPULATION REDUCTION
AFTER ONE YEAR OF CREDIT CAP REFORM

0
0
0
0

0
0
0
0

OPTION 1
Reinstate good
behavior rehabilitation credits

11,915

AVERAGE SENTENCE
FOR FLORIDA'S
PRISON POPULATION

51.7

18,423

OPTION 2
Expand incentive
rehabilitation credits

18,423

OPTION 3
Implement both rehabilitation
credit reforms with a 65% cap
on rehabilitation credits

24,519

OPTION 4
Implement both rehabilitation
credit reforms without any cap
on rehabilitation credits

34.4

OPTION 1
Reinstate good
behavior rehabilitation credits

33.6

OPTION 2
Expand incentive
rehabilitation credits

33.6

OPTION 3
Implement both rehabilitation
credit reforms with a 65% cap
on rehabilitation credits

26.2

OPTION 4
Implement both rehabilitation
credit reforms without any cap
on rehabilitation credits

Sentence Disparity in Months

10
8.1

8

8.7

5.9

5.4

6

5.6

5.3

5.3

5.6
4.1

4
2
0

..

...

Disparity of
Average FL
Prison Sentence

.

....

.

....

Sentence Disparity
Sentence Disparity
with Basic Gain
with Incentive Gain
Time Reinbursement Time Expansion

...

Sentence Disparity
with Both Basic and
Incentive Gain Time
and 65% Cap on
Rehabiliation Credits

RACIAL DISPARITIES IN
LENGTH OF PRISON STAYS
(IN MONTHS)

4.5

....

Sentence Disparity
with Basic and
Incentive Gain Time
and No Cap on
Rehabiliation Credits

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-

Black — White
Sentence Disparity
Latino — White
Sentence Disparity

7

►

. . .... . . . ....... . . . . . . . . . .. ...... . . ....... . . ...

 ESTORING GOOD BEHAVIOR CREDITS AND
R
EXPANDING INCENTIVE REHABILITATION
CREDITS COULD SAVE FLORIDA BETWEEN
AN ESTIMATED $1.7 AND $1.8 BILLION.

Longer prison sentences are not proven to deter crime or
lessen recidivism. However, they do create an aging prison
population that is more expensive to oversee. In fact, lon‑
ger sentences can be counterproductive to public safety as
increasing prison expenses can divert money from program‑
ming and re-entry support aimed at reducing recidivism.15
Reforming and expanding rehabilitation credit opportu‑
nities and lowering the cap also provides a particular benefit
to people with longer prison sentences, which tend to be
people of color. Black people incarcerated in Florida prisons
average sentences 8.1 months longer than their white coun‑
terparts, while Latinos average sentences 8.7 months longer
than white people.16 Reforming the ability to earn rehabili‑
tation credits could significantly decrease those disparities.

Reinstating good behavior rehabilitation credits and
increasing incentive rehabilitation credit opportunities could
save a considerable amount of taxpayer expense if applied
to everyone in state prisons. Rehabilitation credits not only
incentivize participation in programs for job training, edu‑
cation and treatment, but also generate savings that could
be used to expand those same programs and fund re-entry
services proven to reduce recidivism. By contrast, in 2018,
the Florida Department of Corrections was forced to cut
programming and re-entry services aimed at reducing recid‑
ivism in order to cover a $28 million budget deficit.18 From a
cost-effectiveness standpoint, rehabilitation credits have the
potential to release more people and conserve resources that
could support their success.

Restoring good behavior credits and expanding incentive rehabilitation credits could save
Florida between an estimated $1.7 billion and
$1.8 billion, respectively, in expenses that could
be reinvested in programs addressing recidivism
and rehabilitation. If implemented while eliminating the cap on rehabilitation credits, Florida
could save over $2.6 billion.17

MONEY SAVED WITH REHABILITATION CREDIT EARLY RELEASES

8

$1.76
BILLION

$1.83
BILLION

$1.83
BILLION

$2.61
BILLION

OPTION 1
Reinstate good behavior
rehabilitation credits

OPTION 2
Expand incentive
rehabilitation credits

OPTION 3
Implement both rehabilitation
credit reforms with a 65% cap
on rehabilitation credits

OPTION 4
Implement both rehabilitation
credit reforms without any cap
on rehabilitation credits

FLORIDA’S CAP ON REHABILITATION CREDITS

Electronic copy available at: https://ssrn.com/abstract=3820798

CONCLUSION
Overall, the country is shifting away from harsher and more punitive methods of criminal justice, preferring remedies that
are more rehabilitative and appropriate for an incarcerated person’s needs. Even crime victims have voiced a need for shorter
prison sentences and support for more rehabilitative programing and preventative efforts.19
By reforming and expanding rehabilitation credits and adjusting the cap on rehabilitation credits, Florida has an oppor‑
tunity to make a substantial change in its approach to criminal justice. This reform is an opportunity for Florida to protect
public safety, save taxpayer dollars, reduce racial disparities, rehabilitate and restore humanity to incarcerated people, and
reunite families and communities.

........ ... ................................ ... ...................... .......... ... ...................... .......... ... ...................... ................ ................... ............. ... ................... ............. ... ......

ENDNOTES
1
Florida Policy Institute, Fiscal Year 2019-20 Budget: Summary by Issue Area, Dept. of
Corrections, https://www.fpi.institute/category/state-budget-taxesf1/.
2
Florida Department of Corrections 2017-18 Annual Report. http://www.dc.state.fl.us/
pub/annual/1718/FDC_AR2017-18.pdf. Population estimate from the U.S. Census, American
Community Survey, 2018.
3
Lufkin, Bryan, The myth behind long prison sentences, BBC Future, May 15, 2018. https://
www.bbc.com/future/article/20180514-do-long-prison-sentences-deter-crime
4 Courtney, Leigh, Elizabeth Pelletier, Sarah Eppler-Epstein, Ryan King, and Leah Sakala, A
Matter of Time, Urban Institute, July 2017. http://apps.urban.org/features/long-prison-terms/a_
matter_of_time_print_version.pdf
5
Sayre, Wilson, Average Florida Prison Sentences are Getting Longer. Here’s Why
You Should Care, WUSF Public Media, July 2017. https://wusfnews.wusf.usf.edu/post/
average-florida-prison-sentences-are-getting-longer-heres-why-you-should-care
6
Ceballos, Ana, Prisons chief: Status quo ‘unsustainable’, The Gainesville Sun, Oct 16, 2019.
https://www.gainesville.com/news/20191016/prisons-chief-status-quo-unsustainable
7

Florida Department of Corrections, Annual Reports.

8
Hunt, Kim and Bill Easley, United States Sentencing Commission Report: The Effects of Aging
on Recidivism Among Federal Offenders, U.S. Sentencing Commission, Dec 2017. https://www.ussc.
gov/sites/default/files/pdf/research-and-publications/research-publications/2017/20171207_
Recidivism-Age.pdf
9

Florida Department of Corrections, Annual Reports.

10 Urahn, Susan, and Michael Caudell-Feagen, Time Served: The High Cost, Low Return
of Longer Prison Terms, The Pew Center on the States, June 2012. https://www.pewtrusts.
org/~/media/legacy/uploadedfiles/wwwpewtrustsorg/reports/sentencing_and_corrections/
PrisonTimeServedpdf.pdf
11 Engel, Len, and Maura McNamara, Data-Driven Solutions to Improve Florida’s Criminal
Justice System, Crime and Justice Institute, Feb 2018. http://www.crj.org/assets/2018/01/FINAL_
Data-Driven-Solutions-to-Improve-Floridas-Criminal-Justice-System.pdf
12 Our analysis makes several assumptions based on data availability and limitations. We
assume that no jail time credit goes toward release time, as we did not have information on length
of jail stays before entering prison. We assume that multiple sentences run concurrently, as the

data does not distinguish if sentences are concurrent or consecutive. We assume sentences do not
have mandatory minimums where gain time cannot be applied, as the data did not indicate where
mandatory minimums are enforced. We assume everyone earns and/or keeps all available gain
time, as we are not able to predict how often people attend rehabilitative programming or exhibit
bad behavior. Our cost savings estimates assume 100 percent of the daily cost to incarcerate would
be saved by early release. Lastly, our analysis does not include people given life sentences or death
sentences.
13 Note that we did not include individuals with death sentences or life sentences without
parole in the calculation of prison sentence length averages.
14 Sakala, Leah, Smart Reforms to Prison Time Served Requirements in Florida, Urban Institute,
March 2019. https://www.urban.org/sites/default/files/publication/100040/smart_reforms_to_
prison_time_served_requirements_in_florida_0.pdf
15 Mauer, Marc, Long-Term Sentences: Time to Reconsider the Scale of Punishment,
The Sentencing Project, Nov. 2018. https://www.sentencingproject.org/publications/
long-term-sentences-time-reconsider-scale-punishment/
16 Native Americans have a current sentence disparity of 36.3 months longer than the average
sentence for white people. Restoring basic and incentive gain time decreases the disparity to 23.6
months if a 65 percent cap on rehabilitation credits is in place, and 18 months if there was no cap
at all. Note that there are only 79 people labeled as Native American in the dataset. However, it is
possible that some Native Americans and Latinos are labeled as white or “unknown.”
17 Basic gain time was calculated as a lump sum award of 10 days per month of an individu‑
al’s sentences. Incentive gain time was calculated as 20 days earned per month spent in prison. A
scenario with both basic and incentive gain time would calculate incentive gain time based on a
reduced prison sentence after the basic gain time lump sum had been applied. Cost estimates are
based on an average daily expense of $59.57 per day for each person incarcerated in Florida pris‑
ons, according to the Florida Department of Corrections FY 2017-18 Annual Report.
18 Klas, Mary Ellen, Florida Prisons Cut Programs to Cover $28 Million Deficit, Tampa
Bay Times, May 6, 2018, http://www.tampabay.com/florida-politics/buzz/2018/05/06/
florida-prisons-cut-programs-to-cover-28-million-deficit.
19 Crime Survivors Speak: The First-Ever National Survey of Victims’ Views on Safety and Justice,
Alliance for Safety and Justice, 2016. https://allianceforsafetyandjustice.org/wp-content/uploads/
documents/Crime%20Survivors%20Speak%20Report.pdf

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ACKNOWLEDGMENTS
This report was written by Delvin Davis and edited by Jamie
Kizzire. It was designed by Claudia Whitaker.

CREATIVE

CREATIVE DIRECTOR Russell Estes

SENIOR CREATIVE LEADS Michelle Leland, Scott Phillips, Kristina Turner

DESIGNERS Shannon Anderson, Hillary Andrews, Cierra Brinson, Sunny Paulk,

Jacob Saylor, Alex Trott, Claudia Whitaker
CREATIVE ASSOCIATE Angela Greer

10

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SOUTHERN POVERTY LAW CENTER

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11

SP LC

@

Southern Poverty Law Center

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