Mark Holden: A ‘safety valve’ needed for drug mandatory minimum sentencing

William Forrester was 52-years-old, on disability, and suffering from numerous health problems when he was arrested in 2008.

His offense? A pharmacist filled a fraudulent prescription for 120 oxycodone pills.

When he came back the next month to have another prescription filled, which was also fraudulent, the pharmacist called the doctor, who told her he did not authorize either prescription. Forrester was charged with painkiller “trafficking.” He was convicted at trial and sentenced to 15 years in prison, the mandatory minimum sentence for that offense. He will not be released until 2021, a month shy of his 65th birthday.

Unfortunately, Forrester’s story — highlighted in a recent report by the James Madison Institute and Reason Foundation — is not unique. Mandatory minimums have sent thousands of low-level drug offenders to prison unnecessarily since 1999. And though the legislature modestly reformed those sentences in 2014, it’s still possible to be sentenced to decades in prison for comparatively minor drug offenses.

While harsh mandatory minimums were intended to apply to drug kingpins, evidence suggests they are routinely applied to low-level and first-time offenders. A 2012 report by the state’s Office of Program Policy Analysis and Government Accountability found that the majority of inmates incarcerated for these offenses sold roughly the “equivalent to one or two prescriptions.” More than one-third of those inmates — like Forrester — were arrested for just possessing too many pills illegally. The majority had substance abuse problems and were at low risk for recidivism. Nearly two-thirds of inmates incarcerated for painkiller “trafficking” offenses had never been to prison previously.

Incarcerating these low-level offenders is expensive. For the roughly 2,310 inmates incarcerated for these offenses, taxpayers are paying $123,562 per day, or approximately $45.1 million per year. These costs might be justified if mandatory minimums were working, but all available evidence suggests Florida’s drug problem is worse today than when mandatory minimums were imposed in 1999.

The problem with mandatory minimums for drug offenses is that they strip courts of all flexibility in sentencing, even when imposing the minimum results in absurdity and injustice. For instance, Judge Mark Blechman, who sentenced William Forrester, told him his hands were tied. Judge Blechman said, “I have to sentence you to 15 years, and there’s no ifs, ands or buts about it. The Legislature has said for this particular crime, we prescribe a fixed sentence.” Make no mistake: Forrester committed a crime, and he deserves punishment. But no one is safer when courts are deprived of all flexibility in cases like his.

One way to fix this problem is by enacting “safety valve” legislation. As described in another recent James Madison Institute paper, a safety valve neither eliminates the mandatory minimum sentence, nor requires judges to sentence offenders below the minimum term. It is a narrowly tailored exception for certain offenders and under certain circumstances.

Several states have safety valves for drug trafficking offenses already. Georgia, Oklahoma, and Mississippi have all passed drug safety valve legislation in recent years. In fact, Florida already has safety valve legislation in place for certain offenses, and for habitual offenders. In these cases, judges may depart below the required mandatory minimum if the sentence is “not necessary for the protection of the public.”

A similar safety valve for drug offenses would allow judges to depart below mandatory minimum sentences for individuals who would be better served by shorter terms or alternatives to incarceration, such as drug treatment. It could also save taxpayers millions of dollars annually without negatively impacting public safety, and would limit the negative unintended consequences created by the status quo.

Florida taxpayers deserve the benefits of individualized and proportional sentencing for drug offenses. That’s why more than a dozen national and state conservative organizations, including Americans for Tax Reform, FreedomWorks, and the American Conservative Union Foundation — have asked Florida House and Senate leadership to pass drug sentencing reform this year. And it’s just one reason many of the same groups support a task force to conduct a comprehensive review of Florida’s criminal justice system.

Florida is not made safer when individuals are deprived of all liberty for years — or decades — longer than necessary. Public safety is enhanced, not threatened, when judges are allowed to make individualized sentencing decisions. State Attorney Glenn Hess of Florida’s 14th Judicial Circuit said it best: “Every case should be treated on its merits … Leave it up to the judge to decide which offenders are dangerous and treat them appropriately.”

That makes sense to me.

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Mark Holden is senior vice president and general counsel for Koch Industries, Inc.