Push for leniency in drug sentencing has been a hard sell in Florida

Herald/Times Tallahassee BureauAugust 19, 2013 

TALLAHASSEE -- When U.S. Attorney General Eric Holder announced last week that he was ordering prosecutors to stop charging lower-level drug offenders with “draconian minimum mandatory sentences,” he echoed the refrain from a bi-partisan coalition of activists who have tried and failed to get legislators to change the laws in Florida.

The cost of incarcerating a drug offender for a mandatory three-year prison sentence in Florida is estimated at $58,400, while the cost of treatment in a work release program is $19,130, according to an analysis by the Florida Office of Program and Policy Analysis and Government Accountability.

Meanwhile, Florida’s crime rate is at a 41-year low but the prison population continues to grow with non-violent, first-time offenders, most of whom are snared by undercover agents targeting them for trafficking in small quantities of prescription drugs, the analysis found.

The Florida Department of Corrections reports that taxpayers are spending an estimated $300 million a year to house people incarcerated for drug offenses.

Holder announced last Monday a major shift in federal sentencing policies, targeting long mandatory terms that he said have flooded the nation's prisons with low-level drug offenders and diverted crime-fighting dollars that could be far better spent.

If Holder's policies are implemented aggressively, they could mark one of the most significant changes in the way the federal criminal justice system handles drug cases since the government declared a war on drugs in the 1980s

As a first step, Holder has instructed federal prosecutors to stop charging many nonviolent drug defendants with offenses that carry mandatory minimum sentences. His next step will be working with a bipartisan group in Congress to give judges greater discretion in sentencing.

The move mirrors new laws adopted in a growing number of states, including Georgia, Kentucky, Ohio and Texas, and is endorsed by a wide range of interest groups. The Lawyers Committee for Civil Rights called it “game-changing.” U.S. Sen. Rand Paul, R-Kentucky, said in a blog post on Friday that it “signaled a significant shift toward justice.”

But whether the announcement will have any affect on Florida, where a bi-partisan group of activists and legislators have tried to shift the focus from drug incarcerations to treatment and diversion, is still an open question.

“It’s time to start using our brains on this issue,’’ said Rep. Dave Hood, R-Daytona Beach, a lawyer and one of several freshman lawmakers who support ending minimum mandatory sentences for certain drug crimes. “Let’s look at the facts and evidence and not the anecdotes. We are ruining lives and families forever.”

Rep. Katie Edwards, a freshman Democrat from Sunrise, sponsored legislation last year that would have allowed judges to depart from mandatory minimum sentences for trafficking in illegal prescription drugs. The proposal passed every House committee but never came to a final vote after being blocked in the Senate.

Now, Edwards and others believe Holder’s announcement could lead to an influx of drug offenders in the state system, putting pressure on the state to adjust.

If a federal prosecutor wants a tougher punishment for a drug offender “he can kick over the case to the state,’’ said Greg Newburn, Florida director of the Families Against Mandatory Minimums, which is working to change state and federal laws. “That could be extremely costly move for Florida if it decides not to change its sentencing laws.”

Edwards warns that caseloads for state public defenders and state attorneys are already at the breaking point and “this may force our hand and really finally get the ball rolling.”

Drug convictions in Florida have surged in the last decade with the abuse of prescription drugs. Convictions for trafficking more than quadrupled between 2006 and 2012 and, in most cases, judges had little discretion but to sentence offenders to a mandatory three years behind bars. Three of four drug offenders have little or no prior criminal history and just as many have substance abuse and addiction problems, the OPPAGA report found.

The cost of housing those prisoners sentenced to mandatory minimum sentences is estimated at $97.5 million a year, according to the Florida Department of Corrections. Only one third received any treatment or re-entry skills and, after release, the data shows, three in five of the drug offenders return on a drug offense.

One of the most active proponents of reforming the system is the Smart Justice Alliance, a business-backed advocacy group that argues the cost savings will allow the state to shift resources into education and economic development. It is backed by non-profit companies who acknowledge they want to get a piece of the state’s prisoner rehabilitation business.

But resistance is strong. In addition to the reluctance of legislators who worry they will be perceived as being soft on crime, the pushback includes prosecutors, the Florida Sheriff’s Association and both public prison officials and private prison lobbyists. The prison advocates have quietly opposed the legislation at a time when there is a surplus of prison beds in Florida.

In 2012, Gov. Rick Scott vetoed a bill that would have allowed nonviolent offenders to receive drug counseling. His argument: prosecutors feared it would mean that some prisoners would leave prison early, and fail to serve the mandatory minimum 85 percent of their sentences.

Sen. Rob Bradley, R-Green Cove Springs, and a former assistant state attorney, agrees in theory that federal prosecutors could steer more cases to state court, crowding the dockets. But he wants to change the law because it makes sense. He plans to file a bill next session to change what he considers a glitch in the law that allows someone to be sentenced to three years in prison on drug trafficking charges for seven pills of oxycodone, treating the less potent prescription drugs the same way it treats 28 grams of cocaine.

The laws were written during the era of Miami Vice and drug cartels, “when the legislative mindset was focused on heroine and cocaine, not opiates,’’ he said.

Edwards’ bill included a similar provision to modify the law for prescription drug crimes. Legislative analysts estimated a savings of $58 million and 576 fewer prison beds. She believes the fear of closing prisons, not the best public policy, is what worked against them.

“There’s an absolute economic incentive to keep people in prison as long as we can so we can profit from them,’’ she said. “Tell me what threat [non-violent, drug offenders] are to society, because they are a threat to the state budget.”

Rep. Matt Gaetz, R-Shalimar, chairman of the House Criminal Justice Subcommittee, said he plans to push for sentencing reforms next session. But, in addition to offering more leniency to non-violent drug offenders who commit first-time crimes, he wants those changes offset with new laws that will increase penalties for crimes against the elderly and children.

“The reason Rep. Edwards’ bill did not become law is it was only beneficial to offenders. It did not enhance public safety,’’ he said. He also opposes the proposals pushed by the Smart Justice Alliance whose goal, Gaetz said, is “a series of reforms that would really create a pipeline for rehabilitation and re-entry services.”

Barney Bishop, director of the Alliance, challenges that characterization.

“I’ve never known Republicans were opposed to companies making a profit, especially a not-for-profit,’’ he said. The reforms will lead to fewer people in the pipeline, he said, adding that only about 33 percent of the state’s 102,000 prisoners receive treatment.

“If we can break the cycle so they don’t come back, we will save hundreds of millions,’’ Bishop said.

The Associated Press contributed to this report.

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