Greg Newburn, Chelsea Murphy and Sal Nuzzo: Sentencing reform for a fairer justice system

mandatory minimum drug sentencing
Public policy should be rooted in evidence, data, research and experience.

In his book Political Capitalism, published in 2018, Florida State University economics professor Randall Holcombe describes how private sector actors do not merely act within the rules established by the government, but often design those very rules to protect their interests.

Holcombe builds on public choice theory — the idea that government actors seek power the way economic actors seek profits — to explain how entrenched special interests rig the economic system to their advantage, often at the expense of the common good.

Holcombe’s model allows us to adapt this lesson to other policy areas.

For example, if political capitalism refers to economic actors designing a regulatory environment for their economic benefit, “Political Education” might refer to the same concept applied to schools.

When Florida passed the “Tax Credit Scholarship Program,” which gives businesses tax credits for contributions to nonprofit scholarship organizations, the existing education establishment objected.

The Florida Education Association, the state’s largest teachers’ union, said the voucher programs were a “risky experiment” that “gambles taxpayers’ money and children’s lives.”

The Florida Education Association, the Florida School Boards Association and the state Parent Teacher Association sued to block the program.

Legislators at the time rejected the purported motivation of that lawsuit, arguing that objections to education reforms stemmed not from genuine concern for students, but instead from fear that a disruption to the status quo threatened the power of educational special interests.

Under their theory, the lawsuit was a clear exercise in political education, a brazen attempt to keep the rules of the system rigged to benefit the already powerful.

“Political Justice” is just as real. For example, nearly every expert who’s studied the issue agrees that mandatory minimum drug laws are a bad idea. They’re expensive, inefficient, ineffective, and ultimately counterproductive to public safety.

This is simply not controversial among anyone familiar with even the basic research on the subject. That’s one reason sentencing reform enjoys overwhelming support across the ideological spectrum.

In fact, thanks to this consensus, a major federal sentencing reform bill called the First Step Act passed the U.S. Congress overwhelmingly last year and was signed into law by President Donald Trump.

Over the last year, nearly 2,500 federal drug offenders — including more than 200 here in Florida — have had their sentences reduced thanks to the retroactive reforms in the First Step Act.

But despite this consensus, and despite the success of similar reforms across the country, special interests continue to oppose sentencing reform in Florida. That’s not a surprise. After all, restoring judicial discretion in drug sentencing affects prosecutors the same way restoring parental discretion in education affects teachers’ unions.

Conservative columnist George Will once noted that mandatory minimums act as “sledgehammers” that give the government enormous power to threaten defendants with harsh sentences if they exercise their constitutional right to a fair trial, a scenario that plays out daily across Florida with devastating effects on individual rights, due process and the rule of law.

Predictably, though, bureaucrats who prosecute defendants enjoy that power, and they want to protect it.

That’s why elected State Attorneys spend so much time away from their constituents back home, and instead in Tallahassee peddling doomsday scenarios about proposed sentencing reforms, all of which are modest compared to what other states and the federal government have adopted successfully over the last two decades.

Public policy should be rooted in evidence, data, research and experience, not blind deference to special interests. Sentencing is no exception. There is no better reason to allow prosecutors to shape sentencing policy than there would be to allow teachers unions to shape education policy, hospitals to shape health care policy, or local governments to determine the scope of their own power.

Giving prosecutors control over sentencing policy would be like allowing taxi companies to decide if Uber should be legal or asking the owner of a professional sports team if taxpayers should subsidize stadiums.

In none of these cases is any reason to believe the special interest would be motivated by a sincere commitment to the public good.

Fortunately, Florida has shown a willingness in recent years to take on educational and economic special interests in ways other states have not.

Here in Florida, legislators have grown increasingly skeptical of special interests’ pretextual justifications for public policies rigged in their favor, and now routinely ignore fearmongering about efforts to unrig the system.

In education, transportation, health care and other areas, Florida’s elected officials have come to see that what’s best for entrenched actors inside a system is not necessarily what’s best for the public, and have begun to abandon political capitalism.

This year they should finally reject political justice, as well.


Greg Newburn is Florida Director of Families Against Mandatory Minimums. Chelsea Murphy is Florida State Director of Right on Crime. Sal Nuzzo is Vice President of Policy and Director of the Center for Economic Prosperity for the James Madison Institute.

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