By Greg Newburn, State Policy Director, FAMM
and Sal Nuzzo, Vice President of Policy, James Madison Institute
In the 1970s, three states – New York, Michigan, and Florida – adopted mandatory minimum sentencing laws in efforts to deter drug trafficking and crime associated with the drug trade. Decades later, their experiences offer guidance to policymakers still searching for answers to the same problems.
The Origins of Mandatory Minimum Drug Laws
In 1973, New York Governor Nelson Rockefeller addressed New York City’s rampant drug abuse and violent crime problem. The year prior, accidental drug overdose deaths in New York State were six times what they had been in 1960,[1] and Governor Rockefeller promised a new strategy. New York adopted “severe and mandatory penalties for narcotic drug offenses at all levels and for the most serious offenses involving many other drugs.”[2] Those new sentences would become known as the “Rockefeller Drug Laws,” then the harshest drug sentencing laws in the country.
A few years after New York adopted the Rockefeller Drug Laws, Michigan Governor William G. Milliken was searching for answers to his own state’s ongoing drug and crime epidemic. After reading a copy of Rockefeller’s 1973 speech, he was persuaded mandatory minimums were the answer. In 1978, at Milliken’s request, Michigan established mandatory minimum prison sentences for a range of drug offenses. Chief among them was the so-called “650-Lifer law,” which established a mandatory life sentence without parole for anyone convicted of possessing more than 650 grams of cocaine or heroin. The same act established other mandatory minimums for lesser drug offenses.[3] Described as a “one-strike-and-you’re-out law,” 650-Lifer was aimed at drug kingpins and intended to deter drug trafficking in Michigan.[4]
According to the U.S. Drug Enforcement Administration, by the mid-1970s, Miami, Florida had become the “drug capital of the Western Hemisphere,” and South Florida was “overwhelmed by violent cocaine and marijuana traffickers from Latin America.”[5] Following the lead of New York and Michigan, the first bill passed by the 1979 Florida legislature and signed into law by then Governor Bob Graham created 893.135, F.S., and along with it “the crimes of ‘trafficking in cannabis,’ ‘trafficking in cocaine,’ and “trafficking in illegal drugs.’”[6] The new law provided “mandatory minimum penalties and additional fines for each of the crimes created.”[7]
As a summary of the Rockefeller Drug Laws described, the theory behind all three states’ strategy was simple:
First, it sought to frighten drug users out of their habit and drug dealers out of their trade, and thus to reduce illegal drug use, or at least contain its spread. Second, it aimed to reduce crimes commonly associated with addiction, particularly robberies, burglaries, and theft. It was believed that some potential drug offenders would be deterred by the threat of the “get-tough” laws, while at the same time some hardened criminals would be put away for long periods, and thus be prevented from committing further crimes.[8]
In New York, the Rockefeller Drug Laws were met with mixed reaction. Law enforcement officials in New York City expressed skepticism, and some even opposed the bill.[9] Others around the state rallied in support, including police officials in Syracuse and Buffalo.[10] In Michigan, “a good deal of support for the 1978 legislation came from the law enforcement community, including police agencies, the Prosecuting Attorneys Association of Michigan, and judges’ associations.”[11] Florida law enforcement groups cheered the new mandatory minimum law, too, arguing that it sent “a clear signal to traffickers in illegal drugs that they would pay a heavy price if caught with large amounts of marijuana, cocaine or heroin.”[12]
The shift to mandatory minimum sentencing for drug trafficking was not without its skeptics at the time. Experts and political leaders across the ideological spectrum warned mandatory minimums would fail to curb drug use and related crime, but would nevertheless cause incarceration rates and corrections budgets to rise. In Michigan, for example:
[O]pponents pointed out that severe mandatory penalties are not a proven deterrent to crime, that the use of mandatory sentences would fail to provide for individualized sentencing that could take into account aspects of the crime other than the amount of narcotics, and that major drug dealers likely would employ drug addicts and others as couriers, thereby avoiding possessing large amounts of drugs themselves.[13]
By 1979, the two sides of the mandatory minimum drug sentencing debate were clear. On one side, proponents believed “the magnitude of the drug problem demanded the enactment of stricter laws, and that harsher penalties would both serve as a deterrent against dealing in illicit drugs and decrease the number of drug-related crimes by keeping drug dealers in prison for longer periods of time.”[14] On the other side, skeptics argued that mandatory minimum laws would fail to reduce crime or drug abuse, but would cause higher incarceration rates, bloated corrections budgets, and injustice in individual cases. Now, some 40 years later, the experiences of New York, Michigan, and Florida offer evidence as to which side had the better argument.
New York
In New York, the “buyer’s remorse” was almost immediate. One of Governor Rockefeller’s closest aides, Joe Persico, helped push the bill through the legislature. Looking back, Persico said, “I concluded very early that this was a failure. It’s filling up the prisons, first-time offenders. This was obviously unjust — and not just unjust, it was unwise; it was ineffective.”[15]
In March 1978, an exhaustive study of the Rockefeller Drug Laws concluded that, “Despite expenditure of substantial resources . . . neither heroin use nor drug-related crime declined in New York State.”[16] For whatever reason, neither drug traffickers nor drug users were scared off by the threat of harsh sentences. Instead, “a steady supply of heroin and an active heroin economy existed in New York City” well after the Rockefeller Drug Laws were enacted.[17] Mandatory minimums fared no better at deterring crime. Tracking national trends, violent crime in New York State continued to climb, and wouldn’t peak for nearly 20 years.[18] The state murder rate peaked in 1990, nearly 30 percent higher than it had been in 1973.[19]
Data were not sufficiently persuasive, however, and mandatory minimums stayed on the books. Critics’ warnings of exploding prison populations proved correct. By 1980, just seven years after adopting mandatory minimum drug laws, New York’s prison population had doubled. It would soar to nearly 62,000 by 1992, a six-fold increase in 20 years.[20] Meanwhile, the percentage of prisoners serving sentences for drug offenses had begun skyrocketing. While only nine percent of New York’s prisoners were serving drug sentences in 1980, drug offenders accounted for more than 30 percent of all prisoners in 1997.[21]
Two decades after New York adopted mandatory minimum drug laws, the experiment had become difficult to defend. Even the original Senate sponsor had abandoned the effort. “The Rockefeller Drug Laws have failed to achieve their goals. Instead they have handcuffed our judges, filled our prisons to dangerously overcrowded conditions, and denied sufficient drug treatment alternatives to nonviolent addicted offenders who need help,” he said.[22] Later, Republican Governor George Pataki – a “tough on crime” governor who restored the death penalty and “openly favor[ed] police and prosecutors in most disputes”[23] – began New York’s move away from mandatory minimum drug laws by commuting mandatory prison sentences and calling for expanded judicial discretion in drug cases.[24]
Not everyone supported reform, however. In 2001, the New York State District Attorneys Association wrote a letter to Governor Pataki opposing major changes to the state’s drug sentencing laws, warning that, “It would be extremely short-sighted to respond to these outstanding reductions in violent crime by taking away the very tools we have used so effectively to make our communities safer.”[25]
In part due to opposition from law enforcement special interests, meaningful reform would have to wait nearly a decade. Finally, in 2004, New York began rolling back its mandatory minimum drug laws, eliminating life sentences for drug offenses, allowing certain drug offenders to be resentenced to shorter terms, and reducing parole terms.[26] The following year, the legislature allowed more drug felons to apply for shorter sentences.[27]
In 2009, New York repealed most of its mandatory minimum drug laws. The move was praised by many, but support was not universal. For example, one opponent said the changes “ignore the advice of the state’s 62 district attorneys and law-enforcement officials and protect illegal aliens and drug dealers.”[28] Another opponent argued that the move would “turn back years of hard work and progress we have made in combating crime in our communities and will increase costs for the state by untold millions of dollars.”[29] Still another predicted the repeal of mandatory minimum drug laws would lead to “a public safety disaster.”[30]
Nearly a decade removed from the repeal, those concerns appear to have been unfounded. Opponents were correct that reform would mean reduced sentences. Between 2009 and 2014, New York “prison sentences . . . decreased by 40 percent, while sentences to diversion programs, such as drug court,” increased.[31] They were also correct that reform meant greater leniency for drug offenders. In New York City, “felony drug arrests, indictments, and commitments decreased dramatically from 2008 to 2015.”[32] The state prison population fell 14 percent between 2008 and 2015.[33] The number of drug offenders in New York state prisons fell 45 percent over the same period.[34] In 2008, drug offenders made up 20 percent of the total state prison population. By 2015, that number had fallen to 13 percent.[35]
However, the predictions of skyrocketing costs failed to materialize. According to a 2014 report from the National Conference of State Legislatures:
New York has closed 18 correctional facilities during the last five years because of a declining prison population, according to the corrections department. The state used $12 million in savings from two of the closures to help offset costs for in-prison mental health and sex offender programs. Savings also have been used to provide economic development assistance to communities where prisons have closed. One prison will become a center for crime victim support and offender reentry services.[36]
Most importantly, the predictions of carnage in the streets were unsupported. New York’s violent crime and property crime rates are both down since 2008.[37] 2017 was “the safest year in decades” in New York City, with a murder rate lower than any in the previous 70 years.[38] Drug abuse did not spiral out of control, either. From 2009-2017, New York’s fatal drug overdose rate was nearly 20 percent lower than the national rate.[39]
Michigan
As they had in New York, warnings from experts – soaring incarceration, massive spending on corrections, and a failure to control drug abuse or crime from mandatory minimums – proved correct in Michigan. Far from capturing “kingpins” intended by the original legislation, Michigan was instead locking up low-level drug offenders by the thousands.
To keep pace with the exploding prison population, [Michigan’s] corrections budget increased 1,428 percent between 1976 and 1996, from $65 million to $1.27 billion, making it one of the fastest growing segments of the state’s budget. In 1986, prison spending consumed 6.4 percent of Michigan’s general fund, but by 1996 it consumed 15.1 percent.[40]
By the late 1980s, it was clear Michigan’s experiment with mandatory minimums had fared no better than New York’s, prompting the state legislature to begin revisiting the policies. In 1987 and 1988, for example, the legislature cut certain mandatory minimum drug trafficking sentences in half.[41]
Public support for mandatory minimums had begun to wane, as well, in part because of the (correct) perception that the laws were failing to capture “big fish.” Instead, 86 percent of “650 lifers” had never served prison time previously, and 70 percent were poor.[42] Further, “a disproportionate percentage of prisoners convicted under the law [were] given life sentences despite it being their first offense.”[43] People “began to believe that the strict drug laws enacted in 1978 were not, in fact, snaring the kingpins of the drug trade,” believing instead that the laws “appeared to be catching a lot of small-time drug users and possibly even innocent victims.”[44]
As stories of low-level and first-time drug offenders – including drug addicts not involved in the for-profit drug trade – sentenced to lengthy mandatory prison sentences began to mount, pressure to reform Michigan’s mandatory minimums mounted, as well. Among several similar examples, proponents of reform cited the case of Timothy Allen Dick, who had been caught in possession of more than a pound of cocaine in 1978. “Prosecuted under federal instead of state law, Dick served less than two and a half years in prison and upon his release launched an acting career that made him nationally famous as Tim Allen, star of the television series Home Improvement.”[45] Had Allen been convicted of cocaine trafficking under Michigan law and sentenced under “650-Lifer,” the judge would have had no discretion, and Allen would have been given a sentence of life without parole.[46]
The legislature responded in 1998, eliminating mandatory life without parole for trafficking in more than 650 grams of heroin or cocaine, and providing for parole eligibility for people sentenced under the old law.[47] Even after those reforms, pressure to eliminate mandatory minimum sentences continued to grow. Governor Milliken himself led the repeal effort:
I believed then that it was the right response to an insidious and growing drug problem. I have since come to realize that the provisions of this law have led to terrible injustices and that signing it in the first instance was a mistake – an overly punishing and cruel response which gave no discretion whatever to a sentencing judge, even for extenuating circumstances.[48]
Milliken “joined forces with an advocacy group, Families Against Mandatory Minimums (FAMM), which pressed for changes in the law. He gave speeches, authored newspaper columns, and corresponded with legislators to urge amendments.”[49] The former Governor was celebrated in the Michigan press for admitting his mistake and for speaking out “loudly and courageously against a monstrous injustice.”[50]
Even Michigan’s prosecutors joined the repeal effort.
[A] Macomb County assistant prosecutor advocated a “smart on crime” approach and suggested that, “warehousing too many low-level nonviolent offenders with a minimal role in the drug trade for too long in costly prison beds” did not fit that model.[51]
David Morse, then president of the Prosecuting Attorneys Association of Michigan (PAAM) echoed the same theme: “The idea of stiff severe penalties for drug kingpins was a problem because we weren’t getting those kingpins. We were getting people who were carrying on behalf of kingpins.”[52] He continued:
Michigan’s prosecutors recognize that an effective drug policy is a combination of criminal justice strategies, readily available drug treatment programs, incarceration where appropriate, and prevention activities in schools, businesses, and homes. That is why we support a responsible approach to replacing the mandatory minimum sentences for drug crimes with sentences that are appropriate for the crime.[53]
In December 2002, the Michigan legislature voted to repeal most mandatory minimum sentences for drug offenses. Republican Governor John Engler signed the measure into law the same year, and the reform took effect March 1, 2003.
Two years after the passage of the reforms, the Michigan Department of Corrections looked at 10,987 offenders who were granted parole in 2003. Of those, 437 were drug offenders serving sentences under “650-Lifer.” Of those 437, 362 were considered “successful.” Of that group, 304 were discharged from parole and had not re-entered the system, and 58 were on parole and had not violated. The total success rate for offenders released under the 2002 sentencing reforms was 82.8 percent. The success rate for all other offenders was considerably lower, at 52.2 percent. It was estimated that Michigan saved more than $15 million just in two years, not counting the savings from offenders who were given alternative sanctions under the new law, but would have been admitted to prison under “650-Lifer.”[54]
Meanwhile, crime continues to fall in Michigan. Violent crime fell more than 20 percent there between 2002 and 2014.[55] Property crime fell nearly 40 percent over the same period.[56] Lower sentences have not created an incentive for prisoners to go back to crime, either. Michigan’s recidivism rate hit an all-time low in 2018, down from more than 45 percent in 1998.[57]
Lower crime and lighter drug sentences have led to historic drops in Michigan’s state prison population, which recently hit a 20-year low, down more than 20 percent from its peak in 2007. Michigan has closed three prisons since 2016, and could close more as the prison population continues to fall.[58]
Florida
By 1990, the results of Florida’s experiment with mandatory minimum drug laws mirrored New York’s and Michigan’s. The promised reduction in violent crime hadn’t come, as Florida’s violent crime rate rose nearly 50 percent between 1979 and its peak in 1990.[59] Drug crime was similarly undeterred. Per one account, “. . . from 1980 to 1988, prison admissions for drug offenses increased 942%” in Florida.[60] By 1991, drug offenders accounted “for over 35 percent of all prison admissions.”[61] And, as in New York and Michigan, mandatory sentences for drug offenses helped lead to an explosion in Florida’s prison population. Between 1980 and 1988, Florida’s prison population increased 178.2 percent.[62]
Unlike in New York and Michigan, however, Florida faced little political pressure to reform its mandatory minimum drug laws. If anything, “Sentencing in Florida has long been driven by consistent political pressures advocating the most punitive approach possible.”[63] Instead, Florida’s move to reform its drug sentencing laws stemmed from something far more mundane – there was just no place to put all the prisoners. By 1991, prison overcrowding in Florida had reached “critical levels.”[64] Limited prison bed space, coupled with complex and unpopular “early release mechanisms” created a situation in which “sentences handed out by Florida judges . . . had minimal bearing on the actual prison time criminals served.”[65] This led to intolerable results:
For example, the St. Petersburg Times reported that Brian Keith Smith had been released with no post-release supervision after serving less than one-fourth of his two-and-one-half-year sentence due to overcrowding, and was then accused of murdering three store clerks in Pinellas County.[66]
By 1993, “the pressures arising from . . . prison overcrowding, a fiscally conservative taxing policy, the socially conservative policy of increasingly punitive sentencing, and the impending end of federal control over Florida’s prison system, all converged.”[67]
The legislature responded to the crisis by launching a long-term prison construction project and passing the “Safe Streets Initiative of 1994.”[68] Safe Streets was unambiguously tough on crime. The legislature declared that, “the primary purpose of sentencing is to punish the offender.” It also “amended sentencing laws across the board by raising the potential ceiling for punishment . . . irrespective of what the statutory maximum for the offender’s crime might have been.”[69] Among other reforms, it repealed provisional release programs, eliminated basic gain time, increased the minimum percentage a prisoner had to serve before release, and repealed the existing “emergency release” program.[70]
Along with ending early release programs and stiffening sentences, however, the legislature recognized that long-term control over the prison population required front-end sentencing reforms. To that end, Safe Streets ensured that future changes to criminal penalties could not “adversely impact the prison population unless a sufficient funding source is provided.”[71]
Safe Streets also repealed “most minimum mandatory sentences located in the Florida Statutes.”[72] Three-, five- and 10-year drug trafficking sentences were repealed.[73] The legislature also eliminated mandatory minimums for purchase or possession of drugs near schools,[74] and eliminated drug possession or purchase from the list of offenses for which a defendant could be sentenced as a habitual offender.[75]
There is evidence that Safe Streets worked. A 1999 summary of Florida’s sentencing policies found:
Florida’s 1998 crime rate [was] the lowest since 1978, and [had] declined for seven consecutive years. The state’s “index crime rate,” including murder, forcible sex offenses, robbery, aggravated assault, burglary, larceny, and motor vehicle theft, [was] 23.5 percent lower than in 1988. Violent crimes declined by 16.4 percent in the last 10 years. The state’s violent crime rate has declined for six consecutive years.[76]
Safe Streets should not be credited for all of that success, however. Florida’s crime drop was consistent with a similar national decline, and the legislature passed another crime bill in 1995 that increased the incidence of prison and required prisoners to serve 85 percent of a sentence before release.[77] Whatever the cause of Florida’s crime drop, though, it cannot be disputed that repealing “most minimum mandatory sentences located in the Florida Statutes” did not cause Florida’s crime rate to rise. In fact, between FY 1993-94 and FY 1998-99, the number of prison admissions with mandatory sentences fell 56 percent.
In 1999, however, Florida reversed course and re-imposed mandatory minimum drug laws. The drug sentencing provision was an amendment to a different bill aimed at repeat violent offenders.[80] The new sentencing laws did not appear to be a high priority for the legislature, however. In fact, the House sponsor of the bill “overlooked” the mandatory minimum provisions when introducing the bill at its first committee,[81] and even supporters of the measure called the new law a “nice surprise” after it passed.[82]
From the available record, it is unclear why the 1999 legislature felt mandatory minimums were the most appropriate way to fight drug abuse. Crime had fallen since the 1993 repeal, and the failure of New York’s Rockefeller Drug Laws and Michigan’s 650-Lifer law was clear. Meanwhile, just two years earlier a major report by the RAND Corporation found that “if reducing consumption or violence is the goal, more can be achieved by spending additional money arresting, prosecuting, and sentencing dealers to standard prison terms than by sentencing (fewer) dealers to longer, mandatory terms,” which was the strategy Florida had in place in 1999.[83]
Again, though, data were insufficient, and the legislature re-imposed mandatory minimum sentences for drug trafficking. The idea behind the new law seemed to be the same as it had been in New York in 1973, Michigan in 1978, and Florida in 1979: solve the drug crisis by using mandatory sentences to deter “major players” from participating in the illegal drug trade.
The bill’s proponents made clear that the new mandatory minimums were intended as a short-term solution. During conversation on the bill, one Representative said, “85 percent of people in prison have a drug problem, and we don’t do much to help them. In the big picture we ought to have more resources to get people off their drug habits as opposed to just stopping the source.”[84] The bill sponsor agreed: “On the short-term we have to do something like this, and on the long-term to provide the treatment so that it’s not a reoccurring problem.”[85]
Discussion made it clear the bill intended to distinguish between users and traffickers, with mandatory minimums applied only to the latter group. The bill sponsor said the threshold weights were “drawn very tight” so as not to ensnare “somebody that’s merely using.”[86] Later, he said, “We’re talking about the person who’s growing three barns full of marijuana, or bringing in a boatload of cocaine. We’re talking the major players who are dealing and selling these drugs.”[87]
Of the 25-pound threshold for marijuana, one Sheriff said:
A person that carries 25 pounds of marijuana around with them is not a minor criminal. They are in fact a trafficker. You can call it anything you want, but that is not a dope smoker. They are not out there carrying 25 pounds around for their own personal use.[88]
A representative from the Florida Department of Law Enforcement echoed Sheriff Perry, saying, “We’re going after drug traffickers here.” He added that the marijuana threshold weight was enough to “produce over 272,000 joints” and that the cocaine threshold “represents about 300 lines of cocaine.”[89]
While marijuana and cocaine were the subjects of most of the discussion of the drug trafficking part of the bill, the bill also made changes related to opiate trafficking. The bill provided for:
[a] 3 year minimum mandatory for the possession or sale of between four and 14 grams of various controlled substances including morphine, opium, and heroin . . . [and] a 15 year minimum mandatory to sell or possess 14 to 28 grams of these controlled substances . . .[90]
While heroin was at least mentioned briefly in some of the discussion on the bill (and included in staff analysis), there were no mentions of “prescription drugs,” “painkillers,” “Oxycodone,” or “hydrocodone” in any of the committee hearings or floor debates on the bill. Further, neither “prescription” nor “pill” nor “painkiller” appears in any staff analysis of the bill. This lack of discussion about prescription painkillers indicates the 1999 legislature just did not anticipate how the drug trafficking provisions of the mandatory minimum bill would apply to prescription narcotics.
The prescription painkiller issue came up, however, in Hayes v. State.[91] Florida’s drug trafficking statute provides for mandatory minimums for trafficking in four grams or more of “. . . any mixture containing any [morphine, opium, oxycodone, hydrocodone, hydromorphone, or any salt, derivative, isomer, or salt of an isomer thereof, including heroin] . . .” Prescription painkiller pills are “mixtures” of controlled substances and legal drugs (e.g., a “Lortab 10” pill is a combination of 10 mg of hydrocodone and 500 mg of acetaminophen). The issue in Hayes was whether the entire pill – i.e., the hydrocodone and the acetaminophen – or only the controlled substance – i.e., the hydrocodone but not the acetaminophen – should be used to determine the relevant weight under the statute. The Florida Supreme Court ruled that the statutory construction suggested the latter, and ruled that the only the controlled substance should be weighed for trafficking purposes.[92]
The legislature quickly overturned Hayes, and added two sections to Florida’s drug trafficking law “clarifying legislative intent” that the relevant trafficking weight for prescription painkillers was “the total weight of the mixture, including the controlled substance and any other substance in the mixture.”[93] In doing so, the legislature extended to prescription painkillers the same theory that had been the cornerstone of its drug control strategy since 1979: harsh mandatory minimums would deter prescription painkiller trafficking and abuse the way they were intended to deter trafficking in cocaine, marijuana and heroin.
However, based on the standard that trafficking thresholds should be drawn “very tight” and apply only to “major players” while excluding “somebody that’s merely using” – and the corresponding cocaine, marijuana and heroin thresholds – the prescription painkiller trafficking weight thresholds almost certainly did not reflect the legislative intent of the original law. By any metric, threshold weights for prescription painkillers were considerably lower than those for the other drugs covered by the same law.
For example, measured in estimated personal usage amounts, the 1999 cocaine trafficking threshold was around 30 times higher than the prescription drugs threshold. The heroin threshold was roughly 10-14 times higher than the threshold for prescription drug trafficking. The marijuana trafficking threshold was 108,770 times higher than the prescription drugs threshold.
Importantly, the 1999 law also featured wide disparities in the mandatory minimums imposed. For instance, as noted above, that law mandated a three-year mandatory minimum sentence for possession of 272,000 marijuana joints or 300 lines of cocaine, but the same sentence was mandated for possession of just seven prescription painkiller pills. The same law also mandated a 15-year sentence for trafficking in 9,066,667 marijuana joints, or 1,607,143 lines of cocaine. The same 15-year mandatory minimum was required for possession of just 22 hydrocodone pills.
However, while 15 years is the most severe non-life felony penalty for cocaine or marijuana trafficking, the 1999 law also provided a 25-year mandatory sentence for trafficking in opiates (28 grams – 30 kilograms). Under Florida law, the sentence for illegal possession of 44 painkillers was ten years longer than the sentence for trafficking in 150 kilograms of cocaine, and the same sentence as trafficking in 30 kilograms of pure heroin.
According to a 2012 Office of Program Policy Analysis and Government Accountability (OPPAGA) report, 35 percent of offenders incarcerated for “trafficking” were not selling pills at the time of their arrest.[94] Half of offenders sentenced for hydrocodone trafficking were arrested for possessing or selling fewer than 30 pills, and 25 percent for fewer than 15 pills.[95] Oxycodone trafficking offenders possessed or sold a median of 91 pills,[96] about the equivalent of one prescription.
OPPAGA found that “the majority of offenders had minimal prior criminal involvement and substance abuse problems.”[97] In fact, of offenders admitted to prison for opioid trafficking:
- 84 percent had never been convicted of a violent offense;
- 81 percent had no prior drug sales or trafficking;
- 74 percent had never been to prison before;
- 65 percent needed substance abuse treatment; and
- 61 percent were at low risk to reoffend.[98]
“Major players” these were not. In fact, even some prosecutors have noted that the comparatively low threshold weights for prescription painkillers, which causes mandatory sentences intended for “major players” to be routinely applied low-risk offenders with substance abuse problems instead, “can pose ethical concerns” for them.[99]
Meanwhile, the deterrence of drug trafficking and abuse promised by the proponents of mandatory minimums failed to materialize. Prescription drug arrests skyrocketed from around 6,000 in 2002 to more than 25,000 in 2010.[100] By FY 2010-11, drug admissions to Florida prisons were twice what they were in 1996.[101] Opioid trafficking admissions quadrupled between FY 2006-07 and FY 2010-11.[102] Prison commitments for the lowest level opioid trafficking charge increased 14-fold between fiscal year 2000-01 and 2010-11.[103]
By 2012, Florida taxpayers were paying nearly $100 million annually to incarcerate drug offenders serving mandatory minimum sentences.[104] Yet, the failure of mandatory minimums to deter prescription drug trafficking was so thorough that the same year, then-Attorney General Pam Bondi declared prescription drug abuse “the most serious public health and safety threat to our state.”[105] The failure of mandatory minimums to deter drug crime extended beyond opioids, too. Florida’s overall drug-induced death rate increased nearly 150 percent between 1999 and 2015.[106]
In 2014, the legislature revised the trafficking threshold weights for Oxycodone and hydrocodone, and recalibrated the sentences for trafficking in those drugs.[107] The legislature eliminated the mandatory minimum for illegal possession or distribution of hydrocodone under 14 grams, and Oxycodone under seven grams. This change is estimated to save Florida taxpayers more than $16 million by FY 2019-20.[108]
Lessons for the Future
Maintaining order and public safety is government’s first legitimate function. In the American tradition, it is a “self-evident” truth that “governments are instituted” to protect lives, liberty, and property from those who would violate the social contract instead of cooperate within it.[109] There will never be a time when the peaceful are free from those who choose to hurt others, or who take for themselves by force or fraud what properly belongs to someone else. The crime rate may improve, but crime is a permanent problem.
However, a problem can never by itself justify any given solution.[110] Instead, a proposed solution is justified only to the degree that evidence, data, and experience justify it relative to alternative solutions. Descriptions of the problem or its severity are not evidence in favor of a proposed solution to it, and crime is no exception.
In the 1970s, frustrated with an intolerable crime wave and unprecedented drug abuse, New York, Michigan, and Florida tried a new solution. Their theory was clear: harsh mandatory sentences would scare drug users into getting clean, deter would-be drug dealers from entering the trade, and incarcerate kingpins and major players who could not then continue to bring drugs into the state. Leaders in each state were confident that their proposed solution would finally be the one that worked.
More than 40 years later, New York and Michigan recognized that the solution in which their leaders had such sincere confidence could no longer be justified by evidence, data, or experience, and repealed their mandatory minimum drug laws. Those repeals were possible only after policymakers were honest about the failure of their solution to deliver on its promises.
In fact, dozens of states nationwide have reformed or repealed mandatory minimum laws over the past 15 years. Georgia, Alabama, and Mississippi all have exceptions to mandatory minimum drug trafficking laws. Texas has never used mandatory minimum drug laws, and, like Florida, is currently enjoying a near 50-year crime low. (Florida’s drug overdose death rate was 62 percent higher than Texas’ between 1999 and 2017.)[111] Louisiana repealed its mandatory minimum drug laws in 2017, with the support of the state’s prosecuting attorneys.
Even the federal government has learned from states that have reformed mandatory sentencing laws. Though the federal system still has mandatory drug sentencing laws on the books, those laws are mitigated by a “safety valve” that allows judges to depart from the minimum under certain circumstances. Estimates are that the safety valve has allowed around 100,000 federal defendants to avoid mandatory minimums since 1994.[112] (The national crime rate has dropped 49 percent over the same period.)[113] In 2010, Congress passed the “Fair Sentencing Act,” which reduced mandatory minimums for cocaine trafficking offenses. In 2014, the U.S. Sentencing Commission reduced drug sentences and applied the change retroactively, which allowed tens of thousands of federal drug offenders to apply for reduced sentences.[114]
Last year President Trump signed the “First Step Act,” a sweeping federal sentencing and prison reform bill. First Step passed overwhelmingly, earning 87 votes in the U.S. Senate, and 358 in the U.S. House. The bill was “backed by a number of law enforcement groups, including the [Fraternity Order of Police],” and was “supported by 172 former federal prosecutors including two former Republican U.S. attorneys general, two former deputy attorneys general and a former director of the FBI along with sheriffs from 34 states across the country.”[115] Former Jacksonville Sheriff and current Congressman John Rutherford called First Step “smart on crime,” and said the bill would “protect public safety.”[116]
Notably, First Step, which will expand the federal safety valve to cover thousands more defendants every year who would otherwise be subjected to mandatory minimums , as well as allow the retroactive application of prior drug reforms, which could lead to the early release of more than 2,500 drug offenders from federal prison, also earned the support of Florida’s former Attorney General Pam Bondi, who called the bill “a true bipartisan compromise concerning much needed prison reform in our country.”[117]
Florida, however, has so far refused to join the emerging consensus in favor of mandatory minimum drug law reform. In spite of overwhelming evidence, Florida still clings to the same solution to drug abuse that has failed the state for 40 years, and continues to ignore the costly unintended consequences of its continued reliance on this failed strategy. Like New York and Michigan, attempts to reform Florida’s mandatory minimum drug laws are invariably met with dire predictions of doom and gloom, and Chicken Little-style warnings that without mandatory minimums Florida risks inviting 1970s-level crime once again…
New York and Michigan (Florida’s predecessors in the move toward mandatory drug sentencing laws) – and even Florida’s own experience – expose the weakness of their case. They confirm what experts have long known, that “passing and maintaining . . . mandatory minimum statutes do not represent an effective or efficient way of reducing drug use, drug spending, or drug-related crime,” and that “a desire to fight drug use, spending, and crime is not sufficient to oppose repealing these laws.”[118]
After repealing mandatory minimum drug laws, New York and Michigan are currently enjoying generational crime lows, and have simultaneously reduced their prison populations. The dozens of other states that traveled a similar path all reached a similar destination.
Florida did, too, and could again.
[1] Joint Committee on New York Drug Law Evaluation, “The Nation’s Toughest Drug Law: Evaluating the New York Experience,” March 1978. https://www.ncjrs.gov/pdffiles1/Digitization/43315NCJRS.pdf.
[2] Id.
[3] Possession of 225-649 grams carried a 20-30 year sentence; 50-224 grams 10-20 years; and 25-49 grams 1-20 years. Offenses under 650 grams were “presumptive mandatory” sentences, under which the sentencing judge could sentence a defendant below the “mandatory” sentence for “substantial and compelling reasons.”
[4] CBS News, “Rethinking the Lifer Law,” June 4, 1999. https://www.cbsnews.com/news/rethinking-the-lifer-law/.
[5] U.S. Drug Enforcement Administration, “History, 1975-1980,” https://www.dea.gov/sites/default/files/2018-07/1975-1980%20p%2039-49.pdf.
[6] Florida Legislature, “1979 Summary of General Legislation,” https://fall.law.fsu.edu/collection/FlSumGenLeg/FlSumGenLeg1979.pdf.
[7] Id.
[8] Joint Committee on New York Drug Law Evaluation, supra note 1, at 3.
[9] Id. at 116.
[10] Id.
[11] Michigan Senate Fiscal Agency, “Eliminating Michigan’s Mandatory Minimum Sentences for Drug Offenses,” State Notes, Topics of Legislative Interest, November/December 2002.
[12] Florida Sheriffs Association, “The Sheriffs’ Star,” vol. 23, no. 4. https://www.flsheriffs.org/uploads/star/THE_SHERIFFS_STAR_VOL_23,_NO_4,_JUL-AUG_1979.pdf.
[13] Michigan Senate Fiscal Agency, supra note 11, at 2.
[14] Id.
[15] NPR, “The Drug Laws That Changed How We Punish,” February 14, 2013. https://www.npr.org/2013/02/14/171822608/the-drug-laws-that-changed-how-we-punish.
[16] Joint Committee on New York Drug Law Evaluation, supra note 1, at 7.
[17] Id. at 39.
[18] FBI, Uniform Crime Reports.
[19] Id.
[20] Bureau of Justice Statistics, “Prisoners in 1992.” https://www.bjs.gov/content/pub/pdf/p92.pdf.
[21] Trends in the New York State Correctional System. Occasional Paper, March 1998 #9. New York State Assembly’s Committee on Ways & Means.
[22] Testimony of Robert A. Perry, on behalf of The New York Civil Liberties Union, before the New York State Assembly Committees on Codes, Judiciary, Correction, Health, Alcoholism and Drug Abuse, and Social Services regarding The Rockefeller Drug Laws, May 8, 2008. https://www.nyclu.org/en/publications/rockefeller-drug-laws-cause-racial-disparities-huge-taxpayer-burden.
[23] Benjamin Pomerance, “What ‘Tough on Crime’ Looks Like: How George Pataki Transformed the New York State Court of Appeals,” 78 Albany Law Review 187 (2015).
[24] Christopher S. Wren, “Critics Say Rockefeller Drug Laws Pack the Prisons, Force Plea Deals and Hit Small-Timers the Hardest,” New York Times, January 19, 1998.
[25] Somini Sengupta, “Who’s Defending Rockefeller Drug Laws? The Prosecutors,” The New York Times, Feb. 6, 2001. https://www.nytimes.com/2001/02/06/nyregion/who-s-defending-rockefeller-drug-laws-the-prosecutors.html.
[26] Legal Action Center, “Changes to the Rockefeller Drug Laws.” https://lac.org/wp-content/uploads/2014/07/Rockefeller_Drug_Law_Brochure.pdf
[27] Id.
[28] Patricia Doxsey, “Rocky Road Ahead? New drug laws worry prosecutors,” Daily Freeman, May 10, 2009.
[29] Press release, New York State Senator Martin J. Golden, March 6, 2009. https://www.nysenate.gov/newsroom/press-releases/martin-j-golden/move-reform-rockefeller-drug-laws-will-hurt-new-york.
[30] Id.
[31] Alison Lawrence, “Managing Corrections Costs,” National Conference on State Legislatures, February 2014. http://www.ncsl.org/documents/cj/managingcorrectionscosts.pdf.
[32] New York State Division of Criminal Justice Services, “2009 Drug Law Changes, 2016 Annual Report,” November 2016. http://www.criminaljustice.ny.gov/crimnet/ojsa/FINAL-2016-DLR-Update.pdf.
[33] Id.
[34] Id.
[35] Id.
[36] Lawrence, supra note 31, at 10.
[37] FBI, Uniform Crime Report.
[38] Aaron Katersky, “New York City records fewest murders, lowest crime rate in decades.” ABC News, Jan. 5, 2018. https://abcnews.go.com/US/york-city-records-fewest-murders-lowest-crime-rate/story?id=52166562.
[39] Centers for Disease Control and Prevention, National Center for Health Statistics. Multiple Cause of Death 1999-2017 on CDC WONDER Online Database, released December 2018. http://wonder.cdc.gov/mcd-icd10.html.
[40] Monica Pratt, “650-Lifer punishment is a crime.” Mackinac Center for Public Policy, March 13, 1997. http://www.mackinac.org/article.aspx?ID=35.
[41] Michigan Senate Fiscal Agency, supra note 11, at 2.
[42] John Cloud, “A Get-Tough Policy That Failed,” Time Magazine, March 19, 2003.
[43] The Michigan Daily, “650 to Life: Law creates disproportionate punishment.” May 28, 1997.
[44] Michigan Senate Fiscal Agency, supra note 11, at 3.
[45] Dave Dempsey, William G. Milliken: Michigan’s Passionate Moderate, p. 241.
[46] Allen currently stars in the hit Fox comedy series, Last Man Standing.
[47] Michigan Senate Fiscal Agency, supra note 11, at 4.
[48] Dempsey, William G. Milliken: Michigan’s Passionate Moderate, supra note 45, at 241.
[49] Id.
[50] Id.
[51] Michigan Senate Fiscal Agency, supra note 11, at 4.
[52] Associated Press, “Michigan to Drop Minimum Sentence Rules for Drug Crimes,” December 26, 2002. http://www.nytimes.com/2002/12/26/national/26MICH.htmlhttp://www.nytimes.com/2002/12/26/national/26MICH.html. (Accessed February 27, 2013.)
[53] Press release, Families Against Mandatory Minimums, “Michigan Legislature Repeals Draconian Mandatory Minimum Drug Sentences,” December 12, 2002. http://www.famm.org/StateSentencing/Michigan/MichiganPressReleases/MichiganLegislatureRepealsDraconianSentences.aspx. (Accessed February 27, 2013.)
[54] Michigan Department of Corrections, “Two-Year Follow-Up Outcomes of Offenders Who Paroled in 2003.”
[55] FBI, Uniform Crime Reports.
[56] Id.
[57] Michigan Department of Corrections, “Michigan recidivism rate falls to its lowest level at 28.1 percent.” https://medium.com/@MichiganDOC/michigan-recidivism-rate-falls-to-its-lowest-level-at-28-1-percent-9e0f429ce56c.
[58] Evan Carter, “State Taxpayers Seeing Payoff From Smaller Prison Population,” Michigan Capitol Confidential. https://www.michigancapitolconfidential.com/state-taxpayers-seeing-payoff-from-smaller-prison-population.
[59] FBI, Uniform Crime Reports.
[60] Charles M. Harris, Jr., “Prison Overcrowding — The Time for Policy Change Has Come!,” 18 Fla. St. U. L. Rev. 489 (1991).
[61] Id.
[62]Chet Kaufman, “A Folly of Criminal Justice Policy-Making: The Rise and Demise of Early Release in Florida, and its Ex Post Facto Implications,” 26 Fla. St. U. L. Rev. 361, 385 (1999).
[63] Handberg, Roger and N. Gary Holten. Reforming Florida’s Sentencing Guidelines: Balancing. Equity, Justice and Public Safety.
[64] Harris, supra note 60, at 489.
[65] Criminal Justice and Corrections Council, 1999 Post-Session Resource Book. www.leg.state.fl.us/Publications/1999/House/reports/just_council/1999.pdf.
[66] Kaufman, supra note 62, at 387 n. 129.
[67] Id. at 401.
[68] Id.
[69] Id.
[70] Id. At 402-03.
[71] Florida Legislature, “1993 Summary of General Legislation,” p. 158. https://fall.law.fsu.edu/collection/FlSumGenLeg/FlSumGenLeg1993.pdf.
[72] Id.
[73] Id. But, “The following minimum mandatory sentences [were] retained:
- Section 775.087, F.S.–3- and 8-year minimum mandatories for possession of firearms, semiautomatic firearms, or machine guns during the commission of enumerated felonies.
- Section 893.13, F.S.–3-year minimum mandatory for sale, manufacture or delivery of certain controlled substances within 1,000 feet of schools . . .
- 15- and 25-year minimum mandatories for trafficking in controlled substances . . .” Id.
[74] Id.
[75] Id.
[76] Criminal Justice and Corrections Council, supra note 65, at 3.
[77] Truitt, Linda, et.al., “Multi-Site Evaluation of Sentencing Guidelines: Florida and North Carolina,” April 2001. www.ncjrs.gov/pdffiles1/nij/grants/187859.pdf.
[78] Criminal Justice Corrections Council, supra note 65, at 67.
[79] FBI, Uniform Crime Reports.
[80] Text available at http://laws.flrules.org/1999/188.
[81] Crime and Punishment Committee, February 3, 1999.
[82] Florida Sheriffs Association, “The Sheriffs’ Star,” vol. 43, no. 3, May/June, 1999. https://www.flsheriffs.org/uploads/star/THE_SHERIFFS_STAR_VOL_43,_NO_3,_MAY-JUN_1999.pdf.
[83] Jonathan P. Caulkins, et.al., “Mandatory Minimum Drug Sentences: Throwing Away the Key or the Taxpayers’ Money?” RAND Corporation, 1997. https://www.rand.org/pubs/monograph_reports/MR827.html.
[84] Crime and Punishment Committee, February 3, 1999.
[85] Id.
[86] Id.
[87] House Corrections Committee, February 17, 1999.
[88] Crime and Punishment Committee, February 3, 1999.
[89] Id.
[90] See text, supra note 80.
[91] 760 So.2d 1 (Fla. 1999).
[92] The Court noted that under the former construction, “the penalty for possessing a minimal number of prescription tablets containing hydrocodone would subject the defendant to a twenty-five year mandatory minimum sentence and a $500,000 fine even though the total amount of hydrocodone was as little as .3 grams. This is the same penalty prescribed for a defendant who illegally possesses twenty-eight grams of pure heroin.”
[93] ch. 212-2002, Laws of Florida.
[94] “Opinions Are Mixed About Sentencing Laws for Painkiller Trafficking,” Report No. 12-02, January 2012. http://www.oppaga.state.fl.us/MonitorDocs/Reports/pdf/1202rpt.pdf.
[95] Id.
[96] Id.
[97] Id.
[98] Id.
[99] Florida Senate Committee on Criminal Justice, “A Policy Analysis of Minimum Mandatory Sentencing for Drug Traffickers,” Interim Report 2010-109, October 2009. http://archive.flsenate.gov/data/Publications/2010/Senate/reports/interim_reports/pdf/2010-109cj.pdf.
[100] “Florida’s Prescription Drug Diversion and Abuse Roadmap, 2012-2015,” April 2, 2012. Available at http://myfloridalegal.com/webfiles.nsf/wf/kgrg-8t8l5k/$file/prescriptiondrugdiversionandabuseroadmap.pdf.
[101] Florida TaxWatch Center for Smart Justice, “Review of Criminal Justice Data,” December 2011. http://www.floridataxwatch.org/resources/pdf/csjfindings.pdf.
[102] “Opinions Are Mixed About Sentencing Laws for Painkiller Trafficking.”
[103] “Florida’s Prescription Drug Diversion and Abuse Roadmap, 2012-2015.”
[104]“Review of Criminal Justice Data,” supra, note 87.
[105] “Florida’s Prescription Drug Diversion and Abuse Roadmap, 2012-2015.”
[106] Centers for Disease Control and Prevention, National Center for Health Statistics. Multiple Cause of Death 1999-2015 on CDC WONDER Online Database, released December 2018. Data are from the Multiple Cause of Death Files, 1999-2015, as compiled from data provided by the 57 vital statistics jurisdictions through the Vital Statistics Cooperative Program. Accessed at http://wonder. cdc.gov/mcd-icd10.html.
[107] Ch. 2014-176, Laws of Florida.
[108] SB 360 Bill Analysis and Fiscal Impact Statement, Senate Criminal Justice Committee. Available at: https://www.flsenate.gov/Session/Bill/2014/0360/Analyses/2014s0360.pre.cj.PDF. (Accessed 1/20.2015.)
[109] See The Declaration of Independence.
[110] See Kevin A. Ring, Written Testimony Submitted to the Baltimore City Council Judiciary and Legislative Investigations Committee, July 25, 2017. https://justiceroundtable.org/wp-content/uploads/2017/07/FAMM-Baltimore-Gun-Testimony-7.25.17-FINAL.pdf.
[111] Centers for Disease Control and Prevention, National Center for Health Statistics. Multiple Cause of Death 1999-2017 on CDC WONDER Online Database, released December 2018. http://wonder.cdc.gov/mcd-icd10.html.
[112] FAMM, “Turning off the Spigot: How Sentencing Safety Valves Can Help States Protect Public Safety and Save Money,” March 2013. https://famm.org/wp-content/uploads/State-Safety-Valve-Report-Turning-Off-the-Spigot.pdf.
[113] FBI, Uniform Crime Reports.
[114] United States Sentencing Commission, “Frequently Asked Questions: Retroactive Application of the 2014 Drug Guidelines Amendment.” https://www.ussc.gov/sites/default/files/pdf/amendment-process/materials-on-2014-drug-guidelines-amendment/20140724_FAQ.pdf.
[115] U.S. Senate Committee on the Judiciary, “Senate Passes Landmark Criminal Justice Reform,” December 18, 2018. https://www.judiciary.senate.gov/press/rep/releases/senate-passes-landmark-criminal-justice-reform.
[116] Tweet from @RepRutherfordFL, 6:02 PM – 17 Dec 2018.
[117] News Release, “Attorney General Bondi Co-Leads Bipartisan Coalition of Attorneys General Supporting Criminal Justice Reform,” December 20, 2018. http://www.myfloridalegal.com/newsrel.nsf/newsreleases/98492A7B82ED27908525836900565BB1.
[118] “Mandatory Minimum Drug Sentences: Throwing Away the Key or the Taxpayers’ Money?” at 80.
