Florida's Obsolete Drug Laws Disproportionately
Affect Latinos and Women
January 2020
Late last year, the Project on Accountable Justice released a report highlighting the cases of 935 Floridians who are currently serving prison sentences that are no longer in state law. For decades, Florida imposed lengthy mandatory minimum prison sentences for certain drug offenses – possessing as few as seven hydrocodone pills, for example, could land you in prison for three years; possessing 44 hydrocodone pills required a 25-year prison sentence. Though the Legislature reformed these laws in 2014 and again last year, it did nothing to address the plight of people currently in prison. The Project on Accountable Justice recommended that Florida make the common-sense drug reforms retroactive and allow the 935 people incarcerated under obsolete laws an opportunity to be resentenced and released.
This brief provides additional context: The 935 people incarcerated today under obsolete laws are disproportionately Latino. They are also disproportionately women. And they are disproportionately from Florida’s smaller, rural counties.
There are three times as many Latinos incarcerated in Florida prisons than are indicated in data made public by the Florida Department of Corrections. More than 13,600 Latinx Floridians are in Florida prisons – far more than the 4,584 reflected in the official statistics.
The underreporting of Latinos coincides with a systematic overreporting of white, non-Hispanic prisoners. Essentially, the Florida Department of Corrections incorrectly reports approximately 9,000 Latino prisoners as non-Hispanic whites. Correcting this systematic error gives a very different picture of Florida’s prison population.
| As Indicated by Florida Department of Corrections Data | |
|---|---|
| Black | 46,151 |
| White | 45,773 |
| Hispanic | 4,584 |
| Other | 526 |
| Total | 97,034 |
| As Estimated by the Project on Accountable Justice | |||
|---|---|---|---|
| Non-Hispanic | Hispanic | Total | |
| Black | 44,153 | 1,998 | 46,151 |
| White | 38,852 | 11,505 | 50,357 |
| Other | 422 | 104 | 526 |
| Total | 83,427 | 13,607 | 97,034 |
The Florida Department of Corrections seems to be aware of the systematic underreporting of Latinos, and, since early 2019, has manipulated the aggregate-level data.1
Fifty-eight percent of all prisoners who may be eligible for release if Florida’s opioid reforms were made retroactive are Floridians of color. Thirty-five percent are black non-Hispanic and 22 percent are Latino.
Though Latinos comprise only 14 percent of the total prison population, they make up 22 percent of prisoners incarcerated under Florida’s obsolete opioid mandatory minimums.
Prisoners serving obsolete opioid sentences are also twice as likely to be women compared to the rest of the prison population. Seven percent of Florida’s prisoners are women, but women make up 14 percent of prisoners serving obsolete opioid sentences.
Opioid mortality statistics from the Centers of Disease Control suggest that opioid use is significantly lower among Latinos than among other ethnic and racial groups in the United States. (Though, it’s important to note, that these data may be compromised by a similar undercounting of Latinos and Latinas.) Because Latinos seem to be using opioids at lower rates than the rest of the U.S. population, their overrepresentation in Florida prisons is very likely due to disparities in arrest and prosecution. Research would suggest that these disparities are driven by implicit bias rather than overt forms of discrimination, but these disparities are harmful regardless of of their causes.
As is the case across offense categories, where you live and the color of your skin can have a bigger impact on your chances of being incarcerated for an obsolete opioid offense than your behavior. The chart to the right shows the top twenty counties by the number of people who could be made eligible for release if the reforms from 2014 and 2019 were made retroactive. The people from these twenty counties represent nearly 90 percent of all people serving time in Florida prisons for obsolete opioid offenses.
Opioid prisoners tend to come from smaller and more rural counties, such as Osceola, Escambia, and St. Lucie. Large metropolitian counties, such as Broward, Orange, Duval, and Miami-Dade, still account for a significant share of opioid prisoners, but they have committed people to the Florida Department of Corrections at significantly lower rates than other counties.
Osceola County incarcerates people for obsolete opioid offenses at more than three times the rate of the next highest county.
Many of the rural jurisdictions lack the infrastructure to support community-driven public safety solutions that fall outside the traditional justice system. As Florida seeks to shift away from imprisonment towards more effective and humane forms of intervention, it should empower communities to set priorities, invest in community-based organizations, and build supports that are outside of criminal justice systems and revenue streams.
The first – and most obvious – thing Florida should do is retroactively apply recent reforms that rolled back some of the state’s harsh and expensive drug laws. Prior to 2018, retroactivity in criminal law was prohibited by the state constitution. But, in 2018, voters gave the Legislature the authority to retroactively reduce sentences in Amendment 11. Now that the Florida Legislature has this authority, it should use it.
More broadly, Florida should follow other states – including Georgia, Texas, and New York – and dramatically re-think its approach to incarceration. More than one third of current prisoners in Florida could be released today and not have any new interactions with the criminal justice system. There are ways to hold people accountable that don’t separate them from their families and don’t cost billions of dollars.
As a community and a nation, we must remember that imprisonment is family separation. More than 5 million American children have had a parent incarcerated, and more than 300,000 of those children are in Florida. Florida’s runaway prison system is keeping children away from their mothers and fathers – a tragedy made all the more worse for the fact that the separated families are disproportionately black and brown.
Finally, it must be noted that this report brings attention to disparities that have been hiding in plain sight for decades: Florida’s drug laws – and criminal justice practices more broadly – disproportionately impact Floridians of color. For decades, the full extent of these disparities have been masked by basic inaccuracies in data produced by the Florida Department of Corrections. As Florida moves to reduce its overreliance on mass incarceration, it’s important that we remember some of the basics. We need accurate data systems that allow the public to track racial and ethnic disparities to see who is most harmed by Florida’s $2.7 billion prison system.2
To estimate the number of Hispanic prisoners in Florida, PAJ matched prisoners’ last names from a July 2019 snapshot of the Florida prison population to data published by the U.S. Census Bureau that indicate what percentage of people with a particular last name identified as Hispanic in the 2010 Census. Where prisoners’ last names were hyphenated, PAJ determined the Hispanic percentage of both surnames independently and used the surname for which a larger percentage of respondents identified as Hispanic. This exercise substantiated PAJ’s hypothesis that FDC systemically underreports counts of Latino prisoners and overreports counts of white non-Hispanic prisoners. For instance, although 93 percent of people with the last name Morales identified as Hispanic in the Census, FDC reported only 41 percent of people named Morales as Latino and instead classified 50 percent as white. Similarly, FDC’s data indicated that 36 percent of Rodriguezes are Hispanic and that 57 percent were white, despite the fact that the U.S. Census data suggest 93 percent of people with the last name Rodriguez identify as Hispanic and fewer than 5 percent as white. (PAJ’s methodology ignored the race/ethnic code listed by FDC.)
PAJ was able to match last name data for 95 percent of cases listed in the July 2019 snapshot. Aggregating the population-level data about Hispanicity for this sample indicated that just over 14 percent of the sample population is Hispanic. Extrapolating this figure over the entirety of Florida’s prison population of 97,034 indicated that 13,600 of Florida’s prisoners would identify as Hispanic. This estimate includes Hispanics of all races, including nearly 2,000 who are both black and Hispanic, an appropriate classification for many Floridians with Latin American or Caribbean ancestry.
It is important to note that PAJ’s estimates of the number of Latinos in the Florida prison system are conservative. The number of Latinos in Florida prisons is likely ten to fifteen percent higher than reported here. The reason for this conservative estimate lies in our methodology: By using Census data about surnames, PAJ was forced to assume that there were no disparities within surnames. If Latinos are incarcerated at higher rates than non-Hispanic whites (as we have good reason to believe) this disparity would be reflected within surnames as well as more broadly. For instance, if, according to the census, 30 percent of people with the surname “Moran” are Hispanic, we would expect a higher percentage of the people in prison named “Moran” to identify as Hispanic or Latino. For an accessible explanation of the flaws of using “average” data to investigate disparities, there are few better sources than this article in The Atlantic by James Fallows. Despite its shortcomings, this methodology is the best available and yields a conservative estimate of the number of Latinos in Florida’s prisons.
Cyrus J. O’Brien, consultant to the Project on Accountable Justice and Postdoctoral Research Associate at the John C. Danforth Center on Religion and Politics at Washington University in St. Louis, and Deborrah Brodsky, Director of the Project on Accountable Justice, researched and wrote this report.
The Florida Department of Corrections’ raw data inaccurately identify nearly 9,000 Latinos as non-Hispanic whites. Nonetheless, its new annual reports contained racial and ethnic data that closely matched estimates produced by PAJ. The Department of Corrections has published no notes, methodology, or explanation as to why aggregate-level statistics do not match its raw data.
In 2018, Florida lawmakers saw the importance of having such foundational data and passed the nation’s most ambitious criminal justice data transparency and reporting bill to date. Multiple agencies across the state’s criminal justice system must now collect data, including about race and ethnicity. This data will be publicly available through a transparency portal housed at the Florida Department of Law Enforcement. The importance of this initiative cannot be overstated. It is imperative as we continue our state’s efforts to reform outmoded laws and practices that we know who and how Floridians are impacted. These data are necessary to inform policy making in the public interest and will help us to flag issues as well as to measure successes. This report serves as a reminder that, in order to be useful, the data must be accurate.