Florida law expansively defines trafficking in illegal drugs. To be convicted of drug trafficking, a defendant need not have actually trafficked or sold drugs—she merely must be in “constructive possession” of a certain quantity of a controlled substance. This has created a blurry line between trafficking and possession. Thousands of people are currently incarcerated in Florida prisons for drug “trafficking” offenses who might have more fairly been charged with drug possession and offered opportunities for treatment outside of prison. This report addresses a subsection of this population: approximately 935 people who may be eligible for release if reforms to Florida’s opioid trafficking laws in 2014 and 2019 were made retroactive.
The Florida Legislature adopted its expansive definition of trafficking at the height of the War on Drugs to make it easier for prosecutors to secure convictions against people involved in moving large quantities of drugs through the state and sometimes to other parts of the country. Concerned that “Drug Kingpins” were receiving relatively light penalties, the Legislature wrote thresholds into the state’s drug laws that allowed courts to assume that, if a defendant possessed enough of a drug, she was trafficking it rather than simply possessing it. Some of these thresholds separated drug users from drug traffickers. For instance, Florida law requires that a person with constructive possession of 10,000 pounds of cannabis be sentenced to 15 years for trafficking. When your drug cache would test the towing capacity of an F-150, it seems fair to assume that it is intended for trafficking or distribution, not personal use.1
The problems arise in cases where the trafficking thresholds are set so low that it confuses drug users with drug kingpins. Until 2014, Florida law set a trafficking threshold so low that possessing as few as seven hydrocodone pills resulted in a mandatory minimum trafficking sentence of three years. Possession of forty-four pills—equivalent to a twenty-two-day supply for patients prescribed two hydrocodone pills per day for chronic pain—resulted in a mandatory sentence of twenty-five years in prison. Incarcerating a single individual for the twenty-five-year mandatory minimum sentence associated with possessing as few as forty-four hydrocodone pills would cost the state more than $450,000.2
Judges who thought that these punishments were extreme or disproportionate could do little to prevent them. Because the trafficking statute imposed mandatory minimum sentences, the law tied the hands of judges. As a result, thousands of Floridians were sentenced to very long terms of imprisonment. “I take no pleasure in imposing this sentence,” a judge in Osceola County told a defendant as he sentenced her to twenty-five years in prison. “But I don’t have any discretion in the matter.”
In 2014, the Florida Legislature acknowledged that the trafficking thresholds for prescription drugs were too low. Legislators passed laws that raised the thresholds significantly. The twenty-five year mandatory minimum threshold for hydrocodone increased from 44 pills to 462. The Legislature also added a new, seven-year mandatory minimum sentence for people possessing intermediate quantities of oxycodone or hydrocodone.
Though the revised thresholds continue to ineffectively address drug addiction through incarceration, they have reduced the number of Floridians sentenced each year to very long prison terms for possession of small quantities of prescription drugs.
|3-Year Mandatory Minimum||7-Year Mandatory Minimum||15-Year Mandatory Minimum||25-Year Mandatory Minimum|
|Pre-2014 Threshold||Current Threshold||Pre-2014 Threshold||Current Threshold||Pre-2014 Threshold||Current Threshold||Pre-2014 Threshold||Current Threshold|
|Hydrocodone||4g||7 pills||28g||43 pills||n/a||n/a||50g||77 pills||14g||22 pills||100g||154 pills||28g||44 pills||300g||462 pills|
|Oxycodone||4g||31 pills||7g||54 pills||n/a||n/a||14g||108 pills||14g||108 pills||25g||193 pills||28g||215 pills||100g||770 pills|
Despite the change in law, hundreds of Floridians whose offenses occurred before the 2014 reforms remain incarcerated under the old thresholds. PAJ estimates that between 680 and 935 people could become eligible for early release if the 2014 legislation that reformed hydrocodone and oxycodone mandatory minimum sentences was made retroactive. The cost of incarcerating 680 people is $14,785,000 a year; incarcerating 935 people costs $20,330,000 a year.4 Further, as is consistent with previous research and reporting on the topic by the Tampa Bay Times, women are disproportionately affected by the Legislature’s failure to make the reforms retroactive. A person incarcerated under the obsolete thresholds is twice as likely as a typical prisoner to be a woman.5
Florida’s prison population exceeded 100,000 in response to forty years of public policy that emphasized imprisonment at the expense of more effective mechanisms to promote public health and safety. In 1970, Florida imprisoned fewer than 9,000 of its residents. In 2009, the number of people in Florida prisons exceeded 100,000. The exponential growth of Florida’s criminal justice system was due to forty years of laws and policies that recent research has shown to be harmful and counterproductive. The War on Drugs and other initiatives that resulted in very long terms of imprisonment are today viewed as monumental public policy failures. It produced crowded prisons that functioned as warehouses and it neglected community-based strategies that can actually reduce the social and economic harms drug abuse can inflict. And, in Florida, it contributed to the development of a network of 145 prison facilities that cost the state $2.7 billion a year.
The Florida Legislature has a public mandate to roll back mass incarceration and embrace responsible policies to promote safety. Un-making mass incarceration in Florida is responsible governance, and it will require revisiting and revising forty years of failed policies. The Office of Program Policy Analysis and Government Accountability (OPPAGA), the research arm of the Florida Legislature, has found that prisons produce higher recidivism rates than community sanctions.6 As Florida reshapes its criminal justice system, policymakers should embrace evidence- and research-based practices proven to be more effective and efficient than imprisonment in advancing public safety and health.
In less than two months, Florida lawmakers will return for the 2020 Session with a mandate to shrink and reform the state’s expensive and dangerous prison system, which has been plagued by reactive budgeting policies aimed at addressing the latest crisis rather than advancing long-term strategies to promote public safety. Florida’s prison system confines nearly 96,000 people but is resourced for far fewer. Additionally, the state must prepare plans for the nearly 30,000 people who return to Florida’s communities each year. Whatever aspirations policymakers may have for a renewed, rehabilitative system, the present realities leave no room or time for patchwork fixes. The system is too large and unwieldy to expect that more hires, better health care, or more slots for treatment and education will make a difference without dramatic reductions in the number of people incarcerated. As can be the case in moments of crisis, righting the ship requires lightening its load. Managing Florida’s prisons–and managing efforts to reform them–demands reducing their size. Making reforms retroactive is key to doing so purposefully, safely, and justly.
The Florida Legislature reformed the state’s mandatory minimum drug trafficking thresholds because they imposed sentences that were wildly disproportionate to the crime. Last year, Florida voters approved Amendment 11, which removed an antiquated clause in the Florida Constitution and empowered Legislature to make sentencing reforms retroactive.
As guardians for public safety, state finances, and basic morality, Florida legislators must explore all options to take pressures off of the system, including ways to reduce the current prison population. Reforms to the trafficking thresholds reduced the number of people incarcerated for long and mandatory periods of time, but approximately 935 people remain in prison for constructively possessing opioids before the reforms took effect. The passage of Amendment 11 indicates that Floridians favor those reforms be made retroactive and that people sentenced under obsolete laws be granted the same treatment as those sentenced under the reformed laws. The Legislature should take the steps necessary to make this a reality.
Sentencing in Florida’s criminal courts is often more complicated than might appear at first glance, especially in cases where a defendant is sentenced for multiple offenses. Some people incarcerated for drug crimes were convicted of multiple offenses, which typically involved more than one type of drug or charges relating to paraphernalia. In many cases where a defendant is convicted of multiple similar offenses, Florida courts impose the same sentence for each offense, even if one charge requires a mandatory minimum sentence and an additional charge gives the judge discretion. Applying the same sentence for different offenses is sometimes more a matter of administrative efficiency than careful judgement. After all, barring a change in law, a defendant will serve the same term of imprisonment no matter how the sentence is constructed. As a result, approximately 250 prisoners are sentenced to a mandatory term for opioid trafficking and an equal, non-mandatory term for a less serious offense. As Florida makes the 2014 drug-law reforms retroactive, the Legislature should consider allowing prisoners who were simultaneously convicted of less serious offenses to seek relief and resentencing from the courts.
PAJ used two methodologies to estimate the number of people potentially impacted if Florida’s 2014 opioid reforms were made retroactive. A more inclusive estimate considers people sentenced to a mandatory minimum term for opioid trafficking as well as people sentenced to an identical term of imprisonment for a less serious offense. A less inclusive estimate excludes people sentenced to equal terms of imprisonsonment for less serious offenses.
Using a July 2019 snapshot of people currently incarcerated in Florida prisons, PAJ identified 1,536 people convicted of opioid trafficking between 7/1/1999 and 6/30/2014. The longest sentenced offense for the vast majority of these prisoners (1,440) was an opioid trafficking offense.7
To estimate the potential impact of making the 2014 oxycodone and hydrocodone reforms retroactive, PAJ excluded the following groups:
This left 1,093 prisoners. (11 prisoners were excluded for multiple factors.) However, because the Department of Corrections’ offense codes did not specify the type of opioid involved, this figure also included people convicted of trafficking opioids other than those targeted by the oxycodone or hydrocodone reforms.
To estimate how many of these prisoners are incarcerated for oxycodone or hydrocodone trafficking as opposed to other opioids, PAJ analyzed fifteen years of drug trafficking data from Pinellas County, where officials noted the type of drug involved rather than simply the offense code. The data contained all drug trafficking offenses filed between 1/1/1999 and 7/1/2014. PAJ limited the dataset to cases with a guilty adjudication and to cases involving the trafficking of opioids, leaving 666 cases in the Pinellas sample. Overall, 87 percent of opioid trafficking cases involved hydrocodone or oxycodone. However, this rate fluctuated significantly over time. Among cases where the offense occurred prior to 2005, 81 percent of cases involved hydrocodone or oxycodone. 95 percent of cases originating between 2005 and 2009 involved hydrocodone or oxycodone. And 82 percent of cases where the offense occurred in 2010 or later involved hydrocodone or oxycodone. These figures are in accordance with other research about hydrocodone and oxycodone prevalence in Florida and nationally.8
PAJ applied findings from the analysis from Pinellas County indicating the percentage of opioid trafficking that involved hydrocodone or oxycodone to sample of 1,093 prisoners incarcerated for opioid trafficking in the July 2019 snapshot. This resulted in an estimate of 936.
Some prisoners sentenced to mandatory minimum terms were also sentenced for other offenses. A typical case might involve a three year mandatory sentence for opioid trafficking combined with a three year nonmandatory sentence for drug possession. Depending on how retroactivity were implemented, prisoners with multiple sentences may or may not become eligible for resentencing or release.
To estimate the impact of a more restricted eligibility, PAJ replicated the methodology for the less restricted eligibility scenario, except we excluded prisoners who had sentences for non-mandatory minimum offenses of equal length to their mandatory minimum sentence. The inclusion criteria for the more restricted implementation estimate were (all must apply):
These more restrictive eligibility requirements yielded 792 prisoners in the July 2019 snapshot. PAJ then used the Pinellas County data (as described above) to estimate that 680 of these prisoners’ offenses involved hydrocodone or oxycodone and therefore would be eligible for relief if the 2014 reforms were made retroactive without allowances for people serving an identical sentence for a less serious offense.
Cyrus 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.
For an overview of mandatory minimum policies and a comparison to other states, see Greg Newburn and Sal Nuzzo, Mandatory Minimums, Crime, and Drug Abuse: Lessons Learned and Paths Ahead (The James Madison Institute, February 2019).
Similarly low trafficking thresholds affected sentences for people possessing other types of prescription drugs. Possession of 31 oxycodone pills resulted in a mandatory minimum prison sentence of three years; 108 pills in fifteen years; and 215 pills in twenty-five years. Florida’s low trafficking thresholds not only condemned people to prison for extremely long periods of time; they also unsustainably strained the state budget. This estimate is based on 2014 per diem costs of $49.49. Florida Department of Corrections, 2013-14 Annual Report.
This chart was constructed using pill weights listed in Office of Program Policy Analysis and Government Accountability, Opinions Are Mixed about Sentencing Laws for Painkiller Trafficking, Report No. 12-02. The current thresholds reflect changes made to the hydrocodone thresholds earlier this year. See FLA. STAT. § 314.14(3) (2019).
This estimate is based on the FY2017-2018 per diem rate of $59.57. Florida Department of Corrections, 2017-2018 Annual Report.
Women account for 6.9 percent of the total prison population but are 14.3 percent of the population affected by the shortcomings in opioid reforms. Additional research is necessary to understand the impact of specific laws and policies on women.
See Office of Program Policy Analysis and Government Accountability, Diverting Low-Risk Offenders from Florida Prisons, Report No. 19-01 (January 2019), p. 20. For an overview of effective policies to reduce drug abuse and its social and economic harms, see Washington State Institute for Public Policy, Inventory of Evidence-Based, Research-Based, and Promising Programs for Adult Corrections (February 2018).
The offense codes used were TRAFF ILL DRUGS 4-U/14 GRAMS, CONSPIR.TO TRAFF.DRUGS, TRAFF HER.ETC 28G-U/30 KG, TRAFF HER.,ETC.14-U/28 GR, and TRAFF HER.,ETC.14-U/28 GR. Conspiracy to traffic drugs was included because it also results in a mandatory minimum sentence.
Office of Program Policy Analysis and Government Accountability, Opinions Are Mixed about Sentencing Laws for Painkiller Trafficking, Report No. 12-02; for trend data, see Centers for Disease Control, Trends in Opioid Prescribing Practices.
Update November 16, 5:19 p.m.: Because of an editing error, a citation in an earlier version of this report was misplaced. PAJ regrets the error.
This report was funded through a grant from the Charles Koch Foundation and the general operational support of PAJ’s sponsors. For more information about the PAJ, its institutional partners and supporters, and the distinguished volunteers who serve to guide activities of PAJ, please visit PAJ’s website. Any findings, opinions, or recommendations expressed herein are those of the Project on Accountable Justice.