Jason Pye, Sal Nuzzo: Mandatory minimum reform needed in overdose epidemic

Facing yet another drug overdose epidemic, the Florida Legislature has an opportunity to move the needle in the right policy direction — finally.

As members of the Florida House and Senate are poised to pass new criminal violations, this time for trafficking in fentanyl and synthetic drugs, the heat is on to include policies that have failed Florida – every single time they’ve been tried.

Once again, the usual suspects play Lucy to the legislature’s Charlie Brown, assuring members that this time is different, that this time mandatory minimums will work.

But we know how this ends, and the legislature will have no excuse when it lands flat on its back.

At 50 times stronger than heroin, fentanyl is terrifying. Some say the danger alone justifies mandatory minimums, claiming such sentences will deter drug trafficking. What they don’t do is offer a shred of evidence for that claim. Indeed, all available evidence shows the opposite: not only will mandatory minimums fail, they could make the problem worse.

Current law already provides harsh mandatory sentences for trafficking in heroin laced with fentanyl. According to the DEA, most fentanyl is added to heroin in Mexico before it enters the U.S. If so, trafficking in this form of heroin would already be subject to mandatory minimums in Florida.

This should trouble anyone who believes mandatory minimums will deter fentanyl trafficking. If that’s true, what are they waiting on?

The truth is mandatory minimums don’t reduce drug trafficking. After Florida adopted mandatory minimums for opioid trafficking in 1999, arrests for trafficking in those drugs increased sharply. So did prison admissions: between FY 2000-01 and FY 2010-11, prison admissions for low-level opioid trafficking increased fourteenfold, a fact consistent with a Florida Senate report that found no evidence of a general deterrent effect from Florida’s mandatory minimum drug laws.

Mandatory minimums have also failed to reduce drug abuse.

In the decade after Florida adopted mandatory minimums for trafficking in cocaine and heroin, Florida’s cocaine-related death rate increased 68 percent. It remained higher in 2015 than in 1999. Heroin-related deaths are at record levels; the 2015 heroin-related death rate was nearly twice the 1999 rate. Oxycodone deaths increased, too, including a 264 percent increase between 2003 and 2009.

In fact, since adopting mandatory minimums to reduce overdose deaths, Florida’s overall drug-induced death rate has increased nearly 150 percent.

If this is success, what would failure look like?

Florida is also not using mandatory minimums to lock up only major drug traffickers, as some suggest. A 2012 report by Florida’s Office of Program Policy Analysis and Government Accountability (OPPAGA) studied inmates serving mandatory sentences for opioid trafficking.

OPPAGA found 74 percent of these inmates had never been to prison previously. Half had either never been on probation or had been on probation solely for drug possession, and 84 percent had no current or past violent offenses. The report concluded the majority of such inmates “had minimal prior criminal involvement and substance abuse problems” and were at “low risk for recidivism.”

Incarcerating thousands of low-level addicts who don’t pose a risk to public safety is expensive.

Florida spends more than $100 million annually incarcerating drug offenders serving mandatory minimums. That money could go to expanding drug courts, increasing access to drug treatment, or giving first responders naloxone to reverse opioid overdoses.

Continuing to waste tax dollars on ineffective, tough-sounding “solutions” instead of investing in what works will make Florida’s opioid problem worse.

Because mandatory minimums have failed to achieve their intended purposes, and because they created massive negative unintended consequences, more than a dozen conservative groups – including Americans for Tax Reform, FreedomWorks, the American Conservative Union Foundation, Justice Fellowship, Right on Crime, The James Madison Institute, and Florida TaxWatch – recently encouraged the legislature to reform mandatory minimum drug laws. Yet some in the legislature want more of the same – perhaps failure is addictive, too.

One such reform – a practical, reasonable and moderate one – would give judges, under compelling circumstances, a degree of flexibility to sentence drug offenders appropriately.

For instance, under legislation currently being considered, a person who buys a bottle of counterfeit fentanyl pills would face a 25-year mandatory minimum prison sentence. A “safety valve” would allow judges to determine whether that person is indeed a trafficker for whom prison is appropriate, or an addict who needs treatment, drug court, or another sanction to break the cycle of drug use and incarceration. Several states, including Georgia and Mississippi, already have safety valves for drug trafficking, and they’ve worked to reduce crime and unnecessary incarceration.

The opioid epidemic is too important to allow politically motivated misinformation to guide Florida’s policy response. Public policy should be guided by evidence, experience and advice from actual experts.

A robust commitment to those principles, and not political convenience, might actually help fix Florida’s drug problem.

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Jason Pye is director of Public Policy and Legislative Affairs for FreedomWorks; Sal Nuzzo is vice president of policy for the James Madison Institute.