Florida spends about $2 and a half billion annually on a prison population nearing 100,000 inmates.
Criminal justice reform advocates say Amendment 11 on the November ballot could help reduce the cost.
The “Savings Clause” was originally added to the state constitution in 1885.
It prohibits state lawmakers from applying changes to criminal penalties to old cases.
“It is a vestige of Jim Crow,” said Scott McCoy with the Southern Poverty Law Center.
McCoy says the century-old language has tied the hands of state lawmakers ever since.
“We have a lot of people sitting in prison right now for conduct that we in the past wanted to punish really, really harshly, but now we understand that was a mistake,” said McCoy.
As of 2016, about one out of three inmates were serving mandatory minimum or enhanced sentences in Florida.
Amendment 11 would remove language from the state’s constitution that blocks the legislature from retroactively applying changes to criminal penalties, which could reduce the number of inmates serving outdated mandatory minimums.
“That basically gives the legislature the power that currently every other state in the nation already has,” said Chelsea Murphy with the group Right on Crime.
Hypothetically, if recreational marijuana was legalized today, the state legislature has no authority to throw out old cases or reduce sentences for more than 300 Florida prisoners serving time primarily for marijuana-related crimes.
“Why should someone, just because a day passed, be held to the harsher punishment when we’ve all collectively made the decision to reduce that penalty by a certain amount,” said McCoy.
It’s unclear how many prisoners could be impacted if Amendment 11 passes.
The legislature could choose not to make any new sentences retroactive, or apply retroactivity to only certain crimes.
Amendment 11 was put on the ballot by the Constitution Revision Commission.
The removal of the Savings Clause is bundled with two other proposals that remove outdated language from the constitution.