Over the objections of law enforcement, the Florida legislature is considering several bills that would roll back some of the state's notoriously tough sentencing laws and shed more light on the inner workings of its criminal justice system.
One of those bills, S.B. 694, would create a so-called "safety valve" that would allow judges to depart from the state's mandatory minimum sentencing guidelines for drug trafficking offenses.
"Florida has some of the strictest sentencing laws in the country," says Florida state Sen. Jeff Brandes, who introduced the bill. "It has about 96,000 people in its prison system, and about a third are there for nonviolent offenses. What we've found is that while crime in general has fallen, Florida's prison population has been relatively static, largely because of mandatory minimum sentences and enhanced drug crimes."
The bill is awaiting a floor vote in the state senate, likely to happen next week, but it has little to no chance of passing the Florida House. Instead, the criminal justice advocates are pinning their hope on a major transparency bill that would require much more data collection and reporting on how the criminal justice system operates. That bill passed the Florida House last week and has broader bipartisan support.
Brandes has attached a version of that legislation to another of his criminal justice bills. That bill would also increase pretrial risk assessments in county courts and raise the state's felony theft threshold from $300—tied with four other states for the second-lowest in the country—to $1,000.
Brandes says the goal of the data bill is to create "what we think will be the gold standard for data in the country" and alleviate some of the dysfunction and ambiguity that has plagued the Florida criminal justice system for decades.
"We're trying to look at in a much deeper way what's going on in our criminal justice system," he says. "We don't even have a common definition for recidivism in the state. We have a law that says you have to serve 85 percent of your sentence, but if you ask the prosecutors, the Department of Corrections and the governor's office what 85 percent means, you get three different answers."
Despite its low probability of passing, the safety valve bill has still garnered fierce opposition. Barney Bishop, a Florida lobbyist who works on behalf of law enforcement and prosecutor groups, railed against the bill at a Florida Senate subcommittee hearing last month.
"Senators, you can put lipstick on a pig, I don't care what you call it, but you ain't helping people that have problems and addiction," Bishop said. "You're helping drug traffickers."
Bishop also said that supporters of the bill would not be able to present any numbers to back up their claims that Florida's drug trafficking laws were being punitively enforced against addicts and small-time dealers.
"The one thing you're not going to hear is any data," Bishop also said. "You're not going to hear any data about how many people this impacts. You're not going about how many people have been wrongly sent down the river to prison. You know why? Because there is no data."
There is data.
As Reason detailed in an investigation last year, Florida's opioid trafficking laws, far from being used to prosecute major traffickers, are most often used by prosecutors to hammer low-level offenders with the threat of huge sentences:
Of the more than 2,300 Florida inmates serving time for opioid trafficking, the overwhelming majority—63 percent—have never been to prison before. Another 20 percent were previously incarcerated, but for a drug or property crime only. Just 17 percent had been previously incarcerated for a violent offense. Some 435 are over the age of 50, which is the age prisoners are defined as elderly in Florida. Of those, 53 percent have never been to prison before, and 26 percent have been imprisoned previously for a drug or property crime only.
Florida's passed new mandatory minimums, passed in the late 1990s, partially in response to the rising opioid crisis, and were intended to crack down on major drug traffickers. However, the threshold weights to trigger a mandatory minimum sentence for trafficking painkillers were so low that a single bottle of pills was enough to land an offender in jail for up to 25 years.
One of those inmates is Cynthia Powell. Powell was 40 years old in 2002, when she was set up by a police informant who had been begging her to sell some of her prescription pills. Powell was arrested after selling a bottle of painkillers and muscle relaxers to an undercover officer. She was sentenced to 25 mandatory years in prison.
"That's the status quo, and I think over the years people have become convinced that the status quo is not tenable." says Greg Newburn, director of state policy at Families Against Mandatory Minimums (FAMM), an advocacy group that supports the bill. "One of the ways it can be improved is by expanding judicial discretion in these trafficking cases, so that a judge can take a look at all the relevant circumstances and decide: Is this the type of major trafficker that was anticipated by the statute, or is this an exception that should be taken into consideration?"
The safety valve only applies in cases where the defendant is not part of a continuing criminal enterprise, did not use a weapon, and the crime did not result in harm or death to another person.
Another bill introduced in the Florida Senate, S.B. 570, would reduce the size of the state's drug-free school zones from 1,000 feet to 250 feet.
A December Reason investigation showed how Tennessee's 1,000-foot drug-free school zone laws covered wide swaths of urban areas in enhanced sentencing zones that were rarely, if ever, used to prosecute drug sales to minor. Rather, the zones were used to give prosecutors leverage over low-level drug offenders who were unfortunate enough to stumble into or live inside them.
And there is the issue of who is getting punished: Reason's investigation showed wide racial disparities in who received drug free school zone sentences in Tennessee. Studies have found similar results in several other states, including Florida, where, of the 2,300 inmates serving time for drug-free zone offenses, eight out of 10 are black, according to local outlet News4 Jax.
Such zones exist in various iterations in all 50 states and the District of Columbia.
"With one week left in its legislative session, Florida has the opportunity to pass a few very modest sentencing reforms that a number of conservative states enacted years ago," says Lauren Krisai, senior policy analyst at the Justice Action Network and former Reason Foundation staffer. "Hopefully Florida lawmakers will do the right thing and pass a bill that includes both sentencing reform and data transparency next week. At this point, it's pretty difficult to understand what they're waiting for."
In the meantime, Florida's increasingly old and infirm prison population is costing the state roughly $2.5 billion a year.