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This Florida Ballot Measure Is the Only Shot at Relief for Inmates Serving Draconian Sentences

Florida has rolled back some of its worst mandatory minimum laws, but the inmates sentenced under them have no relief.

Gary Coronado/ZUMA Press/NewscomGary Coronado/ZUMA Press/NewscomSince 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?"

Photo Credit: Gary Coronado/ZUMA Press/Newscom

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  • Fist of Etiquette||

    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.

    One man's expensive is another man's lucrative.

  • BigT||

    ACLU: guilty by allegations.

    https://tinyurl.com/y762rbuo

  • Rev. Arthur L. Kirkland||

    BigT: unfamiliar with meaning of "guilty"

  • BigT||

    "There are credible allegations that Judge Kavanaugh has engaged in serious misconduct that have not been adequately investigated by the Senate."

    Allegations beget condemnation. Pre-judging. Credible only if you overlook Ford's numerous lies and obfuscations.

  • Shirley Knott||

    And what happens to the imprisoned when the state increases penalties beyond what they were sentenced to?
    I'm not unsympathetic to the issue, but it cuts both ways. It's disingenuous to to talk about it once affecting those whose sentences would be reduced.

  • BigT||

    Congress shall make no ex post facto laws. The right to pardon exists.

    To forgive is divine.

  • Shirley Knott||

    once only

  • OEPYZ||

    End the drug war.

  • Cy||

    There's a contract up right now for the Border patrol prison's food supply. I knew there was a lot of money being made off of our prison system, but it's even more eye opening to see the numbers. There are a lot of people making a lot of money off of these people's incarceration. What a strange world we live in.

  • Rev. Arthur L. Kirkland||

    Drug warriors are lousy people. Not just mistaken about a policy issue. Lousy people. In a couple of decades, America will view our generation's drug warriors as current Americans regard the prudish, backward losers who enacted and promoted Prohibition a century ago. You won't be able to find people in 2040 willing to admit that they were drug warriors in 2018 or earlier.

    People who produce marijuana or sell cocaine are businesspersons, much like beer wholesalers, whiskey distillers, or wine retailers (all of whom were vilified by stale-thinking authoritarians of yesteryear).

  • Cy||

    Assuming you're being serious here. However much I'd like all drugs to be legal, it'll never happen. The USG is able to control foreign elections and economies by picking who loses and who wins the drug war in other countries. I don't see us ever giving up that ability.

    If we legalized all of those drugs, we wouldn't have an excuse to kill Johnny and his brother who would no longer be able to finance Bert, in his next election as the Governor of X province.

    That's not even getting into the domestic controls the USG would be giving up.

  • Conchfritters||

    "Say man, when you going back to Florida?"
    "When am I goin' back to Florida? I don't know, don't reckon I ever will."
    "Ain't you worried about getting your nourishment in New York?"
    "Well, I don't care if I do-die-do-die-do-die-do-die-do."

  • Eddy||

    Isn't it a bit harsh to describe Woodrow Wilson (signed the Harrison Act) and FDR (signed the Marihuana Tax Act) as lousy people?

  • ||

    Good to see you post a comment with which almost everyone who posts here is likely in complete agreement. I feel the need to assemble in a circle and sing Kumbaya, followed both group hugs. :)

    Since Prohibition and the Drug War were both Progressive projects (no expense spared to improve the masses, teach the geechee out of the negro, kill the indian but save the man,"Three Generations of Imbeciles Are Enough" etc) I assume that the "prudish, backward losers" you are referring to are Progressives. Good to see you've come to at least one correct conclusion. :)

    It is interesting that the left wing of the Democratic Party, having abandoned "liberal" (a term with an honorable history) should have now adopted the baggage-laden label of Progressive. Perhaps like politicians the world over else they are counting on the average persons complete ignorance of history.

  • TxJack 112||

    Clearly you have no clue what south Florida was like in the 1980s and 90s during the cocaine wars. The Cubans and Jamacians were fighting for control and they did not care who was killed. To kill a single person, Jamacians would shoot hundreds of rds into a nightclub killing scores of innocent people. Of course, the Cubans had to respond. To call them "businessmen" is absolute crap. They are thugs and vermin who prey on those with weak characters

  • ||

    TxJack 112|10.1.18 @ 11:27AM|#

    WOW!

    It is people like you that Santayana was talking about.

    "Those who cannot remember the past are condemned to repeat it."

  • Jerryskids||

    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.

    Normally, citizen's initiative ballots are restricted to a single issue but Florida has a Constitutional Revision Commission and the CRC is allowed to bundle issues in just this manner, which is what they did here. If the judge simply ruled that bundled amendments are unconstitutional because they're bundled (which as far as I can tell is just what she said), she's arguing that the authority of the CRC is itself unconstitutional and I don't see that argument having any chance of being upheld by Florida's Supremes.

  • TxJack 112||

    The sentences may be draconian but those of us old enough to remember know in the 1980s and 90s Florida, especially south Florida was a war zone. Crime was out of control. Concealed and the open carry was passed because crime had gotten so rampant. Whenever government is forced to respond to a dire situation, people suffer unintended consequences. However, everyone of the people discussed in the article could have avoided their fate very easily by simply not breaking the law. Millions of us donit every day and therefore do not have to worry about issues like this one.

  • JonFrum||

    Mandatory minimums were enacted by legislatures because judges were consistently sentencing repeat criminals to the LEAST possible time. If sentencing by judges hadn't been so biased in the first place, the exteme opposite wouldn't have caught on.

    I say open the doors and let all the criminals out. I'm not likely to be killed by any of them - I stay far away from the streets those predators work, and no one I know is likely to suffer by putting them back in society. If the usual suspects kill each other, what's the problem?

  • ||

    Actually, no, mandatory minimums were enacted by legislatures in a political response to the demands of the mob who did not consider that offenders were being hurt badly enough.

    Most of the mandatory minimum legislation was enacted at a time when crime was in major decline but as frequently happens the public mood was such that everyone thought they were in much more danger than they actually were.

    I challenge you to produce any evidence to substantiate your claim that "judges were consistently sentencing repeat criminals to the LEAST possible time". The USA has been known for a long time for the severity of sentences handed down to criminals.

  • Dalben||

    ""[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?""

    Maybe. I mean, I'm fine with that proposition. But buying something legally and committing a crime by buying something illegal, even if it ought to really be legal are not the same thing.

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