In 1999, the Florida Legislature reimposed mandatory minimum sentences for drug trafficking after repealing most of those same laws in 1993.
Under the 1999 law, “trafficking” included possession or sale of controlled substances above some arbitrary threshold quantity. For example, illegal possession or sale of seven hydrocodone pills was “drug trafficking” punishable by a mandatory minimum three-year prison sentence. At 27 pills, the mandatory minimum jumped to 15 years. At 54 pills — a few days’ supply for an average user — the mandatory minimum was 25 years, the same sentence mandated for importing 30 kilograms of heroin, and 10 years longer than the sentence for importing 150 kilograms of cocaine.
Low threshold quantities for prescription painkillers failed to distinguish between the kingpins for whom mandatory sentences were intended, and people with painkiller addictions and other low-level offenders who possessed or sold pills in amounts that exceeded trafficking quantities. As a result, Florida arrested thousands of low-level drug users and sent them to prison, many with 15- and 25-year mandatory minimum sentences.
In 2014, the Legislature recognized that prescription drug trafficking threshold weights were too low, and raised them modestly. The Legislature raised the trafficking threshold for hydrocodone again earlier this year, so under current law one must possess or sell roughly 200 pills to trigger a 15-year sentence, and around 600 pills for a 25-year sentence.
Other states and the federal government have applied similar sentencing reforms retroactively. For example, in 2001 Louisiana reduced drug penalties, and applied the new penalties retroactively to old cases. An old provision in the Florida constitution, known as the “Savings Clause,” however, prohibited the 2014 Legislature from applying the new trafficking thresholds retroactively to any offense that occurred prior to the effective date of the 2014 law.
Thanks to the Savings Clause, the very people whose stories prompted the Legislature to change the law saw no relief from the change. In fact, the Project on Accountable Justice at Florida State University estimates between 680 and 935 people are serving sentences no longer required by law.
Emily Mahoney told some of the stories of people stuck in what she calls “legal purgatory” recently in the Tampa Bay Times. For example, Jomari DeLeon is serving 15 years for a “trafficking” offense that is no longer trafficking. Cynthia Powell, a first-time offender, has served more than 16 years on a drug charge that now carries a three-year sentence, and she still has 4½ years to go before she’s released (she’ll be 61). James Caruso is 17 years into a 25-year sentence for an offense for which he could receive probation today. (As Caruso told Reason in 2017, “A person in Florida could literally do the exact same thing today that I did in 2002 and still get out of prison before me.”)
In November 2018, Florida voters approved a change to Florida’s constitution that restored the Legislature’s power to apply sentencing reforms retroactively. Today, the Legislature is free to do what it was not free to do in 2014. Today, it can make sentencing reforms retroactive.
A pair of bills — one filed in the Florida House or Representatives, and another in the Florida Senate — would do just that. Republican state Rep. Alex Andrade filed HB 339, which has more than 20 bipartisan co-sponsors. Meanwhile, Democratic state Sen. Darryl Rouson filed SB 902. He is the architect of sentencing reform retroactivity in Florida. While serving on the Constitution Revision Commission, Rouson sponsored the proposal that ultimately restored the Legislature’s power to make reforms retroactive.
Both HB 339 and SB 902 would allow people who are currently serving drug sentences no longer required by law to be resentenced to an appropriate sanction. The Legislature should pass sentencing reform retroactivity at the earliest opportunity, for several reasons.
First, there is a significant public safety cost to unnecessary incarceration. The Project on Accountable Justice estimates that the cost of incarcerating people who would be eligible for resentencing under HB 339/SB 902 to be around $15 million to $20 million annually. This money is nearly completely wasted, as there are few if any public safety benefits from incarcerating these offenders to begin with, and none at all from their continued incarceration. (Judges and state attorneys could prevent the release of any eligible prisoner who does pose a threat to public safety.)
Reinvesting these savings anywhere else in the criminal justice system — by expanding successful harm reduction efforts, hiring more law enforcement officers, expanding focused deterrence programs or even back into corrections in the form of drug rehabilitation and other recidivism reducing programming — would be a big boost to public safety.
Second, sentencing retroactivity would relieve some of the pressure on Florida’s prison system. As Mary Ellen Klas reported in the Miami Herald, Florida Corrections Secretary Mark Inch recently called the current system “unsustainable,” and warned that without changes, Florida’s prisons face a “death spiral.”
Florida’s prison system is chronically underfunded, leaving facilities understaffed, corrections officers overworked and underpaid, and prisoners and staff increasingly vulnerable to violence. The current crisis is in large part the predictable result of the Legislature’s unwillingness to reduce Florida’s prison population, and while retroactivity would reduce the prison population only modestly, any relief would be welcome.
The right thing to do
Lastly, retroactivity is the right thing to do. The Legislature has implicitly recognized that hundreds of people are right now serving unjust and disproportionate prison terms. Forcing these people to finish serving these sentences cannot be justified by any traditional theory of punishment, and flies in the face of sensible morality. (In fact, disproportionate sentences are morally equivalent to wrongful convictions.)
President Donald Trump recognized this truth when he signed the First Step Act last year. Among other reforms, the First Step Act made prior drug sentencing reforms retroactive. As of October 2019, nearly 2,000 federal drug offenders have been granted sentence reductions under the First Step Act, including 200 in Florida.
For more than a decade, Florida sentenced thousands of low-level, nonviolent drug offenders to harsh mandatory minimum sentences intended for drug kingpins and cartel thugs. Everyone now recognizes that was a mistake. However, acknowledging the mistake, and taking steps to help ensure the same mistake isn’t repeated, does nothing to relieve the unnecessary suffering of people who have been left behind by the law. Florida voters gave the Legislature the power to offer Jomari DeLeon, Cynthia Powell, James Caruso, and others — all of whom have been punished sufficiently, and then some — a second chance at freedom.
They should find the courage to use it.
Greg Newburn has been with Families Against Mandatory Minimums since October 2010 and runs its Florida State Project. Before that he worked at the Cato Institute and taught high school economics and government.