Criminal Justice Reform Is on the Docket In Florida

Conservative groups and businesses are pushing for better drug laws in the Sunshine State.

When national drug-law reformers draw up their election-day game plans, they seldom give second thought to Florida, a state so conservative that co-habitating with someone to whom you are not married is punishable by up to 60 days in jail.

"We get a lot of interest in running bills in that state," Marijuana Policy Project Spokesman Morgan Fox told me recently in a phone interview. "The problem is that the legislature is largely against us in terms of their voting patterns, so it doesn't really make much sense for us to spend our extremely limited resources."

Despite the fact that Florida's drug laws are some of the most draconian in the nation—possession of 20 grams of marijuana, by no means enough for dealing, can mean a five-year sentence; and possession of eight prescription painkillers can mean 10 or 15 years for a first-time offender—Republicans in the state legislature have shown zero interest in locking up fewer minorities or first-time offenders simply for the sake of fairness. That's why national drug reform groups have all but written the state off.

But conservative grassroots groups might just be able to do what the ACLU and the NAACP have been unable to achieve.

"The business community has taken note of how unbelievably expensive the prison system is in Florida," says Greg Newburn, Florida Project Director for Families Against Mandatory Minimums. "They've seen the prison population double, and the prison budget balloon, and the government project that we'll need to build 10-15 prisons over the next 10 years. And because Florida doesn't have a personal income tax, businesses know the burden will fall on them."

Mandatory minimum laws adopted in the late 1990s have helped double Florida's prison population from 50,000 inmates in 1993 to more than 100,000 today. The state's prescription pill "epidemic" threatens to swell that number even more in coming years. But with Tallahassee facing a $2 billion budget shortfall, the almost $2.5 billion the state spends each year on its prisons and jails now seems downright excessive, even if stiff drug sentences don't, and Republican Gov. Rick Scott has proposed shutting down a handful of corrections facilities and privatizing the remaining ones as much as possible. But privatization efforts, which have faced judicial roadblocks in Florida, will only save so much—less than $50 million by some estimates.

Earlier this month Newburn reported that Right on Crime, an initiative started by the Texas Public Policy Foundation in order to push conservative state legislators to consider alternatives to incarceration, had a lot of Florida heavyweights sign its statement of principles. Among them were former Republican governor Jeb Bush and his former attorney general Richard Doran, and former Republican Party of Florida chairs Allison DeFoor and Tom Slade. While Florida would need more currents than formers to overhaul its drug policies, current Florida Senate President Mike Haridopolis offered a glimmer of hope when he wrote in the Gainesville Sun, "I think I speak for the majority of Floridians when I say that I would much rather spend taxpayer money on our state's education system, road projects, health care or economic development than I would on our state's prison system."

While Newburn isn't holding his breath that these reforms will happen in the near future (the redistricting battle and 2012 election "will take up most of the oxygen in the legislative agenda," he says), conservative groups have been meeting with legislatures and making the conservative case for a major criminal justice overhaul.

"Florida TaxWatch, the James Madison Institute, and other right-of-center groups have taken a look at the cost of criminal justice and what we're getting for it in return," Newburn says. "They're asking, 'Is it efficient to put nonviolent drug offenders in prison for 10 years?' We've seen Right on Crime launch in Florida, and we've seen Grover Norquist come down and talk about criminal reform in the fiscal context."

The most active of these groups has been Florida TaxWatch, which released a report last week with some striking figures about the cost Floridians are paying for the state's draconian criminal justice practices:

• In FY2010-11 Florida taxpayers spent $2.4 billion to incarcerate over 102,000 people.

• Growth has more than doubled since 1990 and nearly quadrupled since 1984.

• In FY2010-11, 70% of admissions to prison were for non-violent offenses.

• Over the past decade more than 40,000 people were admitted to prison for technical

violations of the terms of community supervision (probation), costing the state over one

billion dollars.

• In FY2010-11, Florida spent over $300 million to incarcerate people for drug offenses.

• The cost of mandatory minimum offenses was nearly $100 million.

• Nearly half of prison admissions will serve terms of two years or fewer, and 83% of these admissions are for non-violent offenses.

• Youth admissions from FY2009-10 will cost the state more than $200 million.

• Nearly a third of released prisoners return to prison and almost two-thirds are re-arrested within three years.

The impetus for reform has also come from the bench. As Reason's Jacob Sullum has written, a federal judge ruled earlier this year that "Florida's Comprehensive Drug Abuse Prevention & Control Act violates the constitutional right to due process because it allows conviction without proof of mens rea, the 'guilty mind' that is normally considered a crucial element of a criminal offense." Sullum also noted that "the decision (PDF) could have a sweeping impact, casting doubt on convictions under the law since 2002, when the statute was enacted in its current form." The necessity of rewriting the law could give reformers like Newburn and TaxWatch significant room to operate.

While Gov. Scott has yet to indicate if criminal justice reform will be a priority beyond prison privatization, the stars are as aligned as they've ever been. "For a long time it's been, 'What can we do to build more prisons and put people away for longer?'" Newburn said. "But now the chair of the criminal justice in the senate is open to serious reform, and what you're seeing is the groundwork for a fundamental shift in the way we approach criminal justice reform in Florida."

Mike Riggs is an associate editor at Reason magazine.