Florida Passed A Hugely Important Amendment to Allow Lawmakers to Reduce Criminal Sentences

And a state lawmaker says criminal justice reform bills are already on the way.


Gary Coronado/ZUMA Press/Newscom

Florida voters passed an important ballot amendment this week that will fundamentally change criminal justice in the Sunshine State.

We're not talking about Amendment 4, which will restore voting rights to an estimated 1.4 million people with felony records, but Amendment 11.

Florida was the only state with a constitutional ban on reducing past criminal sentences, until Tuesday, when voters approved Amendment 11 by 62 percent, just over the 60 percent threshold for ballot measures in the state. The measure contained three bundled constitutional amendments, one of which repealed an 1885 provision in the Florida constitution known as the "Savings Clause" that banned the state legislature from making retroactive changes to criminal sentencing laws.

Now state lawmakers will not only be able to roll back harsh mandatory minimum sentences, but make those sentenced under those laws eligible for release. And one state senator says there are already bills on the way to do just that.

"One hundred percent, there will be a bill on retroactivity this year," says Florida Republican state Sen. Jeff Brandes, who has written and co-sponsored several criminal justice reform bills over the past several years.

Brandes says Amendment 11's passage "really frees the state up to begin to cast a bold vision for criminal justice reform."

"I'm excited to see where this goes," Brandes says. "I think this really is going to be helpful as we look to reduce the prison population in the state of Florida and in a meaningful way. We simply can't afford 96,000 inmates. This is a state that spends $2.3 billion dollars a year on incarcerated inmates."

As Reason reported in an investigation last year, Florida's draconian opioid trafficking laws have put thousands of inmates in prison for "trafficking" what amounted to a handful of pills. Hundreds of them are first-time, nonviolent offenders, such as Cynthia Powell, a 40-year-old woman who was sentenced to 25 years in state prison for selling a bottle of painkillers to an undercover cop.

In response to concerns over these brutal sentences, the Florida legislature increased the amount of drugs necessary to trigger a trafficking felony in 2014. That meant a defendant would have to be found with more drugs to receive the same sentence. But lawmakers could do nothing for inmates like Powell, who'd already been sentenced and could not, under Florida law, have her sentence reduced to reflect a change in the criminal code.

"Florida voters sent a clear message on Monday: Now's the time for meaningful criminal justice reform," says Lauren Krisai, senior policy analyst at the Justice Action Network and co-author of the Reason investigation. "There are hundreds of inmates serving sentences for years longer than those who are being sentenced for the same crimes today. I hope the legislature begins to correct this injustice in 2019—thankfully Amendment 11 cleared that pathway."

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—started working on the issue several years ago after realizing that any type of retroactive sentencing reform would be impossible under Florida's constitution.

"Without any kind of safety valves to provide any hope for retroactivity, it just became a matter of, OK, well if the constitution prohibits that, we have to change the constitution," Newburn says. "There was really no question about whether it had to be done. It was only a question of whether it could be done."

Lacking the resources to launch a massive signature gathering campaign, FAMM decided to try and get the Savings Clause repeal on the ballot through Florida's Constitution Revision Commission, which meets only once every 20 years.

Fortuitously, 2017 was one of those years, and the Savings Clause repeal managed to make it on the ballot, surviving a selection process that winnowed down more than 1,000 proposed constitutional amendments.

Newburn says Amendment 11 received grassroots support from families of inmates. It was also endorsed by the American Civil Liberties Union, but many progressive groups and editorial boards opposed Amendment 11, fearing it would allow the state's "stand your ground" law to be applied retroactively. In fact, the amendment performed worst in liberal counties.

Nevertheless, it passed by a supermajority, and with that kind of mandate, Brandes says the legislature can begin considering not just sentencing reform, but increased diversion and reentry programs.

"All kinds of different options now are on the table," Brandes says. "It really is as much of a momentum discussion as it is a policy discussion."

If Florida eventually legalizes marijuana, Amendment 11 would allow sweeping expungements of criminal records for people convicted of pot offenses, similar to what Massachusetts and other states have done following legalization.

"I hope this serves as a signal that Florida is ready for criminal justice reform," Newburn says. "Sixty two percent of the vote, 4.6 million people who say yes to not just sentencing reform, but retroactivity of sentencing reform—when you have those kinds of numbers around the state, it should send the signal to the legislature that people recognize that there are injustices in the system and they want them fixed."

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  1. Does the retroactivity only work one way? Or can the lege pass a bill mandating the death penalty for drug possession of any amount whatsoever and clear out the prison population by executing a few hundred thousand inmates? I’m certain they’ve thought carefully about the amendment and there is no chance whatsoever that there might be any unintended consequences of allowing the legislature to retroactively change the law, like say imposing new taxes based on past years’ filings or imposing penalties on corporations for newly-illegal past behavior, I’m just asking out of idle curiosity.

    1. States cannot pass ex post facto criminal laws, any more than Congress can; this is one of the very few things the pre-Reconstruction constitution had to say about state governments. Not to worry, though. If the distinguished gentlemen in Tallahassee truly wish to execute those who have been long-ago sentenced, they will simply do so “administratively”; no court in this country would stop them.

  2. three bundled constitutional amendments

    What else did Florida’s august Constitutional Revisional Commission include in No. 7? Make jaywalking unconstitutional and amend the constitutional distinction between red versus pink grapefruit?

    Nah; the voters of Florida only chose by a 2% margin to add this amendment to their venerable state constitution. They would’ve given the one I described at least 70% support.

  3. Any idea why the Savings Clause was adopted to begin w?

  4. Honestly, I can see Giuliani taking the gig. It’d show he’s recovered from his prostate cancer, or whatever disability got uncovered which kicked him out of the Presidential primary a few years back. AG isn’t that different from the US Atty job he made his career on. And he’s certainly enough of a pit bull to satisfy Trump’s base that wants swamp-draining, while being enough of a career politician to reassure the Senate that “He can’t possibly mean me?!”

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