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Tallahassee reconsiders mandatory minimums

Budget constraints have politicians questioning mandatory sentencing guidelines for nonviolent drug offenders

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If HB 917 passes in its current form, then Scott Earle would be an ideal candidate for the state's new reentry program: He's already served more than half of his sentence, has never been convicted of a violent crime and he isn't a registered sexual offender.

But there's one crucial thing that Earle lacks: an addiction. The proposed legislation states that in order to qualify for the program, "a nonviolent offender must have … been identified as having a need for substance abuse treatment." Like many other addicts booked into Florida jails, Earle got over his addiction cold turkey, by virtue of having no other options.

But what about SB 1334? Even if that sails through the legislature untouched, which seems unlikely, it still would not provide for the early release of anyone already serving a mandatory minimum sentence for a drug offense, unless that person met the qualifications of the new reentry program.

"It's hard to do the retroactive," says Sen. Bogdanoff. "You'd have to go back and revisit all the different facts and circumstances of a case. It could be a very arduous process. But that doesn't mean that the governor couldn't commute somebody's sentence."      

FAMM's Stewart says that retroactivity is often left out of, or struck from drug sentencing reform bills, as a bargaining chip. She recalls retroactivity being stripped out of the 1994 federal safety valve bill "in the 11th hour" of negotiations. "The safety valve, while it was an enormous victory, it was also one of the saddest days of my life," she says.

Retroactivity, the sentencing reform most difficult to convince legislators to embrace, and hence the one requiring the most time to achieve, is also, ironically, the most time-sensitive. For example, after several fruitless years, FAMM stopped pressing for retroactivity in the federal safety valve statute because most of those affected had already done their time.

"It drives me nuts, frankly, that there's ever a question of retroactivity," she says. "It is equity. If the legislative body decides that this law is unjust, from here forward, it was on the backs of all those people who are prison right now that the arguments were made … and now we're not going to let them benefit from 
the change?"

A legislative staffer pointed out in an email that Florida's Constitution states that "repeal or amendment of a criminal statute shall not affect prosecution or punishment for any crime previously committed." The staffer, who did not want to be identified, added that making the change retroactive would therefore require a constitutional amendment, which would be far more difficult to accomplish. 

Barring a constitutional amendment, then, the 140 people who entered prison with 25-year minimum drug sentences last year will likely remain there for the next two decades, since another mandatory minimum statute, called the Truth-in-Sentencing Act, mandates that prisoners serve no less than 85 percent of their sentences.

Surely, at least one organization will be hard at work for the foreseeable future.

"I feel it's our responsibility to help humanize and personalize the policies that are otherwise so abstract and complex," Julie Stewart says. "If you read sentencing law, it's boring - but when you see it applied to real people … it becomes flesh and blood."

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