Florida

Harsh drug trafficking sentences may get major overhaul in Florida

Felix Vega, News Channel 8 Legal Analyst - TAMPA, Fla. (WFLA) -- Going back to the days of reputed drug traffickers like Pablo Escobar, the Medellin Cartel and former Panamanian ruler Manuel Noriega, Florida's drug trafficking laws - and their stiff minimum mandatory prison sentences - have been viewed as some of the toughest in the nation.

In a state that has been in the death grip of the opioid crisis since pill mills began to be shut down in 2010, those very same laws designed to punish the worst offenders and break up intricate drug cartels have sent thousands of first-time offenders and addicts to prison for years.

Now one Tampa Bay area lawmaker says it's time for a major change to those laws - by putting more power back in the hands of judges to decide what an appropriate sentence is.

Republican State Senator Jeff Brandes of St. Petersburg has introduced Senate Bill (SB) 694 that would allow judges to waive minimum mandatory sentences without prosecutor's approval in certain situations. SB-694 cleared the Criminal Justice Committee with a 5-1 vote.

SB-694 would allow exceptions in sentencing if three criteria are established. First, that the defendant was not engaged in ongoing criminal activity related to drug trafficking in their individual case. Second, the defendant "did not use or threaten to use violence or use a weapon" during the incident for which they are charged. Third, the defendant did not cause serious injury or death to another person during the crime.

It's the first criteria that would literally cover first time offenders, addicts who are caught with a trafficking amount of prescription pills or opioids and other offenders who are not your typical dealer.

To understand why this provision would radically change the landscape of drug trafficking prosecutions, it is important to understand what exactly "trafficking" means in Florida.

NOT YOUR "MIAMI VICE" STYLE DRUG TRAFFICKING

During the height of the cocaine and crack cocaine epidemics from the 1970s and 80s - even into the 90s - drug trafficking was glamorized by films like Al Pacino's "Scarface" and NBC's popular show "Miami Vice." It's these stereotypes of kilos of cocaine stacking up in a hotel room or being stored on million-dollar speedboats doing drug runs in and out of Miami that carried over into the drug trafficking prosecutions when it came to prescription pills.

Florida Statute 893.135 defines trafficking as selling, purchasing, manufacturing, delivering, bringing a controlled substance (like opioids) into the state of Florida or simply possessing a certain weight of that particular drug.

Notice the "or" in that sentence, meaning any one of those scenarios combined with a certain amount of a particular drug would have someone facing first-degree felony drug trafficking charges as opposed to a simple possession charge.

Those trafficking charges, as previously mentioned, carry minimum mandatory prison sentences based on the weight of the drug involved. Here are two examples:

Trafficking in Hydrocodone
WEIGHTPRISON SENTENCE
14 - 28 GRAMS3 YEARS
28 - 50 GRAMS7 YEARS
50 -  200 GRAMS15 YEARS
Trafficking in Oxycodone
WEIGHTPRISON SENTENCE
7 - 14 GRAMS3 YEARS
14 - 25 GRAMS7 YEARS
 25 - 100 GRAMS15 YEARS

Also under Florida law, the entire weight of the pill is considered, not just the part that is illegal.

So how many Hydrocodone or Oxycodone does it take to reach those critical trafficking weights? A 2012 report from the Florida Legislature's Office of Program Policy Analysis and Government Accountability (OPPAGA) that began looking into trafficking legal reforms posted the following conversions:

 PILL WEIGHT4 GRAMS14 GRAMS`28 GRAMS
HYDROCODONE.65g72244
OXYCODONE.13g31108215

In the first major change to Florida's trafficking laws, the legislature increased the minimum weights used by law enforcement and prosecutors from 4 grams in most instances to the weights you see on the Hydrocodone and Oxycodone charts above. This move was also designed to recognize the very real problem courts were facing with addicts who actually needed help and an alarming number of veterans who had become addicted to pain pills and anti-depressants as they battled injuries and mental health problems like PTSD after their service.

Despite those reforms, sole discretion to not impose a minimum mandatory sentence still remained with prosecutors across the state of Florida. Where the crime occurred often dictates what the sentence would be based on a number of factors.

GETTING AROUND THE MINIMUM MANDATORY SENTENCES

Depending on the situation, there were limited options for defendants when it came to sentencing. Chief among them was the law of "substantial assistance," meaning a defendant would provide information to law enforcement on other dealers where they obtained their drugs from, becoming a confidential source and even facilitating undercover drug deals that lead to additional arrests - a more traditional view that worked with bringing down drug trafficking operations.

The problem defense attorneys faced with clients who were first-time offenders, true addicts or veterans was that they often had no information, could make no introductions and as we prosecutors would say, were simply "eating" as many pills as they could get their hands on - sometimes in the tens of thousands based on their level of addiction.

In other circumstances, defendants were unwittingly tricked into selling their prescriptions by a friend or relative in order to make some quick cash (true stories from my own experience as a former prosecutor for 16 years) and end up selling to a confidential source or undercover detective themselves.

Based on the individual, prosecutors are faced with determining what the true intent of the defendant is when evaluating what an appropriate sentence would be other than the minimum mandatory sentence. This also involved the input of the arresting detectives and agencies. Depending on who the decision-maker in each State Attorney's Office would be to make the final call, sentencing results could vary wildly - sometimes county by county. Overall the system was moving more towards addressing treatment and addiction rather than abject punishment, but discretion by the courts and judges is still limited based on current laws.

BY THE NUMBERS: DRUGS AND FLORIDA'S PRISON POPULATION

According to the 2016 Florida Department of Corrections Annual Report, the state's prison had 99,119 inmates that were incarcerated - dipping below 100,000 for the first time since at least 2012.

Here is the breakdown of the top three offenses for which inmates were in prison:

OFFENSEINMATES% OF POPULATION
1.     BURGLARY16,21416.4 %
2.     MURDER/MANSLAUGHTER14,72214.9%
3.     DRUG OFFENSES14,67114.8%

Also in 2016, according to the department's report, inmates convicted of drug crimes were the number one group admitted into the prison system with 6,708. That translated into 22.5 percent of new inmates. Theft and fraud charges were second with 5,008 inmates, or 16.8 percent of new arrivals. In addition to those in prison on felony drug charges, another 36,806 people that were on probation, community control or some sort of supervision by the department were receiving drug treatment of some form.

In the end, Brandes' bill - if passed by the House and Senate - could significantly reduce the state's prison population. As the Florida Bar reported, the Families Against Minimum Mandatories policy group found that a similar measure to change similar drug trafficking sentences in Michigan helped reduce crime by 40 percent in the 10 years following the revision of its drug laws.

The fate of SB-694 and that of thousands of Floridians will hinge on a real bipartisan effort to continue effective criminal justice reform across the state and a realization of the need to evolve and grow to reflect the current state of society.

Felix Vega is a former Assistant State Attorney (prosecutor) serving 13 years in Hillsborough County before joining News Channel 8 in 2016.   

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