How to Reduce Florida’s Prison Population, Costs Without Compromising Public Safety

Policy Study

How to Reduce Florida’s Prison Population, Costs Without Compromising Public Safety

Eliminate mandatory minimum sentences and reform habitual offender and drug trafficking laws

Over the past few decades, Florida has passed a number of laws that have dramatically increased criminal sentences, and enacted others that have limited the amount of gain-time credits-or credits for good behavior or participation in rehabilitative programming-inmates may earn toward a reduction of their sentences. These laws have mandated that all prisoners, even nonviolent offenders, serve not only longer sentences, but a larger percentage of their sentences as well. Taken together, these laws have contributed to Florida’s burgeoning prison population, which has become increasingly expensive for taxpayers.

Some of Florida’s more problematic laws include:

  • Drug Trafficking Statutes: The types and quantities of drugs required for an offense to be considered drug trafficking in Florida are wildly disparate. Illegal possession of some drugs, such as prescription painkillers that contain oxycodone or hydrocodone, require a very small amount to trigger a drug trafficking charge that carries the same mandatory minimum sentence as trafficking a much larger quantity of other drugs, such as cocaine or marijuana, for example. Florida’s mandatory minimum sentences for these offenses are not only disproportionately harsh, but have led to the imprisonment of numerous low-level, non-violent offenders, have increased corrections expenditures, and have effectively eliminated judicial discretion, which has resulted in unjust and unnecessary punishment in some cases.
  • 10-20-Life: Florida’s 10-20-Life law was enacted with the intention of incapacitating violent offenders who use firearms during the commission of an offense, as well as deterring others from committing these types of crimes. However, the law has not worked as intended. Since its enactment, 10-20-Life has been routinely applied to defendants whose crimes were far removed from the original intent of the law, including those who have brandished a firearm or fired a “warning shot” to defend themselves or others. Although this aspect of the law was reformed in 2014, many who would not necessarily be sentenced to mandatory sentences under the law today remain in prison because these reforms were not made retroactive. In addition to being misapplied in some cases, studies have shown that the 10-20-Life law cannot be definitively linked to a reduction in violent crime in the state.
  • Habitual Offender Statutes: Florida has a number of overlapping habitual offender statutes that require judges to sentence certain offenders to significantly longer terms of imprisonment based on their criminal history. Some of Florida’s habitual offender laws, such as the Habitual Felony Offender Law and the Habitual Violent Felony Offender Law, have required judges to send a number of nonviolent offenders to prison for disproportionately longer terms of imprisonment, even when the judge believes that doing so is not in the best interest of justice. There are currently over 100 Florida inmates who were sentenced to life without parole for a nonviolent offense under these habitual offender laws. Only two other states, Louisiana and Alabama, have more inmates serving a life without parole sentence for a nonviolent offense as habitual offenders than Florida.
  • Limits on Incentive Gain-Time: Most states allow at least some inmates to earn credits toward a reduction in their sentences as a way to incentivize rehabilitation and good behavior while incarcerated, and reduce recidivism post-release. Florida is unique in that it prohibits all of its inmates-regardless of whether they committed a violent or nonviolent crime-from earning more than a 15% reduction in their sentences in the form of credits. In other words, all inmates are required to serve 85% of their sentences at a minimum. Reducing the earning power of these credits by mandating that all prisoners serve such a large portion of their sentences not only disincentivizes rehabilitation and good behavior, but also removes individualization from punishment, and requires taxpayers to continue to pay for the incarceration of individuals who may have adequately rehabilitated themselves and are ready to return to society at an earlier date.

These laws have produced a number of unfortunate consequences, such as contributing to an 11-fold increase in the state’s prison population between 1970 and 2014 while Florida’s state population roughly tripled over that same period of time, and a $1.1 billion increase in corrections expenditures over the past 20 years. Because these laws have mandated prisoners serve longer prison terms and larger percentages of their sentences, Florida’s elderly prison population has increased at a faster rate than any other age group over the past 10 years. The cost of incarceration for these inmates-roughly $68,000 per year-is more than three times higher than the cost of an average inmate.

Beyond this, evidence suggests that these laws may not have been the most effective at reducing crime in the state. Indeed, a study by The Pew Center on the States estimates that prison provided no public safety benefit for over 1,700 nonviolent offenders released from Florida prisons in 2004. In addition, it found that over 4,000 more nonviolent offenders could have been released earlier without negatively impacting public safety. Other studies have shown that laws mandating longer sentences, such as those in Florida, do not have a positive deterrent effect on crime, and may even be counter-productive. Another study has shown that Florida’s 10-20-Life law cannot be definitively linked to a reduction of violent crime in the state.

Moreover, because many of these laws are routinely applied to low-level, nonviolent offenders whose lengthened terms of incarceration not only cost taxpayers exorbitant amounts of money and fail to increase public safety, they apply harsh laws indiscriminately, without concern for whether the sentence fits the crime.

In order to limit the unintended consequences and negative impacts of these laws, this study suggests numerous reforms legislators could pursue that would help reduce the state’s prison population and corrections expenditures without compromising public safety.

First, this study suggests that Florida legislators eliminate mandatory minimum sentences in order to give judges more discretion in sentencing. This would allow judges to prevent the imposition of arbitrary and unjust prison terms, but retain the option of imposing long terms of imprisonment for those offenders whose crimes warrant such a punishment, such as violent or serious offenders. Eliminating mandatory minimum prison terms does not mean that individuals will suddenly stop being sent to prison for these crimes, but it will instead allow judges to make individual determinations in sentencing, so that a convicted offender receives a punishment that is proportionate to the crime committed.

Alternatively, this study suggests that legislators significantly increase the threshold necessary to trigger certain drug trafficking offenses and subsequent mandatory minimum prison terms so that they are targeted at higher-level dealers as intended, not low-level offenders. Although modest reform was enacted in 2014 to this end, many of Florida’s drug trafficking laws still fail to distinguish between drug users, low-level drug dealers, and large-scale drug traffickers, and often end up punishing low-level offenders with the same type of severity normally reserved for more serious criminals. Indeed, a 2009 study published by the Florida Senate found that lower-level offenders are sometimes punished more harshly than higher-level dealers and traffickers under the state’s drug trafficking laws.

If neither of these reforms is politically feasible, this study recommends that Florida legislators enact broad safety valve legislation, which would allow judges to depart below mandatory minimum sentences, such as those required under the 10-20-Life law and Florida’s drug trafficking laws, when they believe doing so would be in the best interest of justice. This would give judges the option of not sending low-level offenders to prison for a mandatory minimum of 20 years if they determine that doing so is not warranted for the crime committed or would not be in the best interest of justice or public safety, for example.

This study also suggests that legislators limit the scope of Florida’s habitual offender laws so that they may only be applied to violent habitual offenders. Prohibiting these laws from applying to nonviolent offenders would ensure that prison resources are being used to keep individuals who pose the largest threat to society behind bars, not those whose prolonged periods of incarceration do not benefit public safety.

Finally, this study also recommends that legislators allow certain inmates to earn additional incentive gain-time credits so that non-violent and/or low-level offenders whose prolonged incarceration results in no positive impact on public safety may be released before serving 85% of their sentences. Allowing inmates-especially nonviolent offenders-to earn more credits toward a reduction in their sentences incentivizes rehabilitation, which could help reduce the chances of recidivism upon release, and will save taxpayers millions of dollars in the long term.

Florida has the opportunity to become a leader in smart and effective criminal justice reform. Enacting any of the above-suggested reforms would be a clear step in that direction.

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Lauren Krisai

Lauren Krisai is director of criminal justice reform research at Reason Foundation.