Since the "tough on crime" heyday of the '90s, Florida has rolled back some of its harshest mandatory minimum sentencing laws, but those people sentenced before the law changed are stuck with sentences that are years and—in some cases—decades longer than those given to people convicted of a similar crime today.
A referendum on the ballot in Florida this November could change that, and would be instrumental in reducing Florida's huge, expensive, and aging prison population.
Amendment 11 would allow the state legislature to retroactively change sentencing laws. The legislature is currently barred from doing so by a more than 100-year-old provision in the state constitution known as the "savings clause."
Greg Newburn—the director of state policy for FAMM, an advocacy group that opposes mandatory minimum sentencing, and the chair of the Yes on 11 campaign—says FAMM's support for the amendment essentially comes down to fairness. If the legislature changes the laws, admitting they initially imposed too harsh a penalty, why shouldn't that admission extend to those directly affected by it?
"We fight for fair and proportional sentencing laws," Newburn says. "And when we're successful in making those changes, we think that basic fairness means the stories that we use to help change the laws, the people who are living those stories day-to-day, shouldn't be left behind by the law."
Last year, Reason investigated the effects of Florida's draconian opioid trafficking laws, which put thousands of low-level offenders in prison for what often amounted to a single bottle of pills.
One such case is Cynthia Powell, a woman sentenced to a mandatory 25 years in prison in 2003, at age 40, for selling a bottle of pills to an undercover police officer. She had no prior arrest record.
In 2014, the Florida legislature passed a modest increase to the weight threshold necessary to trigger these harsh sentences for trafficking oxycodone and hydrocodone. The new rules were put in place in response to reports that the state's opioid trafficking laws were mostly ensnaring low-level offenders like Powell, not the drug kingpins that legislators originally said the laws would put behind bars.
However, because of the savings clause, the legislature can do nothing for inmates serving time under the old thresholds. As Reason reported:
For inmates sentenced before the 2014 mandatory-minimum revisions, their punishment now seems all the more capricious and arbitrary.
That includes people like James Caruso, who in 2002 was sentenced to a mandatory 25 years in prison for trafficking hydrocodone, plus a $500,000 fine. "Under the new law I would be subject to a seven-year prison term and $100,000 fine," he writes in a letter to Reason. "I have served more than twice that and owe five-times the fine. 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…And if you believe the police reports, I was just a lookout."
And it includes Cynthia Powell. If she were convicted under the new thresholds, she would've received a 15-year mandatory minimum prison sentence, and would have already been released. Instead, she has over 6 more years to go before she's projected to be released, by which time she'll be 61 years old.
Amendment 11 was taken off the ballot by a state judge, who ruled that the bundled amendment—it includes other measures, such as one that would remove racist language from the state constitution—was unconstitutional, but the Florida Supreme Court is currently reviewing that decision.
Florida is facing an incarceration crisis. Its state prison system holds 98,000 inmates, and without major changes to sentencing law, that number is unlikely to decrease much. As The Florida Times-Union reported earlier this month:
In a state where the prison population remains near its all-time high despite nine years of falling inmate admissions, reducing sentence lengths are the primary way the number of inmates can decline.
Last week, when the American Civil Liberties Union released a plan for Florida to cut its incarceration levels by 50 percent by 2025, the plan was dependent on the ability to reduce inmates' sentences. Without Amendment 11, there are alternative ways to try to reduce sentences such as re-instating parole or allowing inmates to earn more gain-time for good behavior, but it's unclear if the courts would allow those reforms. The Urban Institute researchers who worked alongside the ACLU said that without the savings clause repeal, it would be much harder to imagine the state managing to cut its prison population in half.
Amendment 11 has been endorsed by the Florida chapter of the American Civil Liberties Union. Melba Pearson, the deputy director of the Florida ACLU, told WLRN that it could also apply in future drug legalization measures.
"[L]et's say, for example, we pass a full legalization of marijuana in the state of Florida," Pearson said. "This as a hypothetical—that from today forward you cannot be arrested for possession of a certain amount of marijuana. But what about all the people who are now currently sitting in jail for that marijuana charge that is now legal? Shouldn't they be released from jail and have that removed from their record because this is no longer a crime?"