Families of inmates and advocacy groups were elated last fall when voters approved a Florida Constitutional Amendment that could soon allow some prisoners to be released early.
But in the machinations of the state Capitol, inmates who could benefit from Amendment 11 may remain stuck doing time, depending on how lawmakers get their hands on the new law and how to implement it.
And that’s leaving a raw taste in the mouths of advocates and loved ones waiting for inmates to get out. Advocate Denise Rock was rallying in front of Florida’s Old Capitol earlier this month, bemoaning that the Legislature is usurping voters’ will.
“We voted for this in November. We expect to see this now,” says Rock.
She is referring to retroactive changes to criminal sentencing laws.
From the beginning
Let’s go back in time to last November. That’s when 62 percent of voters approved Amendment 11 to the state Constitution.
There were three items in the amendment, but the key measure that Rock was protesting about at the Capitol calls for the state to repeal an 1885 provision in the Florida Constitution known as the “Savings Clause.”
The clause is important because it banned the Legislature from making retroactive changes to criminal sentencing laws. In other words, if you were sentenced to 10 years in prison for a crime, and the state later changed the penalty for the crime to seven years, you’d still have to serve your 10 years.
With a prison population of nearly 96,000 in Florida, advocates and lawmakers have been discussing ways to reduce the prison population. Florida has already passed two recent measures to reduce the time criminals spend in prison.
Take those who are incarcerated for drug trafficking a certain amount of hydrocodone and oxycodone. The penalty was three-to-five years. But the Legislature approved changes to the minimum sentence for that violation in 2014.
This gets complicated, but what it means is that a defendant arrested on those specific drug charges before June 30, 2014 could serve considerably longer time in prison now than a defendant who committed the same offense on or after July 1, 2014.
Another example: In 2016, the Legislature repealed a measure that charged criminals who commit aggravated assault from qualifying for the 10-20-life law (the name comes from a set of three basic mandatory sentences in Florida when someone uses a firearm during a forcible felony).
That’s when Greg Newburn got involved. He’s with Families Against Mandatory Minimums, a criminal justice advocacy group. Newburn wondered if those legislative changes in sentencing laws could be applied retroactively to inmates currently serving time for those offenses.
Newburn looked to Florida’s Constitution Revision Commission (CRC), which was holding hearings for its once-every-two-decades gathering to revise the state Constitution. He submitted a citizen’s proposal to the CRC to address the issue of retroactive sentencing. He asked the CRC to put an item on the ballot to remove the Savings Clause from the state’s Constitution.
The issue was then championed by state Sen. Darryl Rouson of the Tampa Bay area – one of only three Democrats who served on the 37-member CRC. Ultimately, the commission voted 36-1 to place the issue on the 2018 ballot and it became Amendment 11. And voters approved it last November.
Lawmakers get involved
“If you got locked up for 20 years for possession for a mandatory minimum, and the law has changed, you can petition the court to reduce or eliminate the remaining time in your sentence,” Rouson told the crowd who gathered at the old Capitol for Criminal Justice Reform Lobby Day.
But whether that will automatically happen is putting Rouson at odds with Florida Attorney General Ashley Moody. Her office is advocating an implementing bill for Amendment 11 sponsored by State Sen.Tom Lee, a Republican from Hillsborough County. The bill says that any revision of an existing criminal statute only operates going forward unless “expressly provided otherwise.”
That could mean people who are in prison for the two recently-approved legislative changes to criminal sentences may not be getting released anytime soon.
Moody tells the Phoenix about the Lee bill: “It’s simply an administrative type of statute to make sure that as the Legislature does look at criminal statutes and makes amendments, that they and the public know when it’s going to be retroactive, and it keeps consistency and stability in our courts and that’s the true purpose of it.”
But Rouson has proposed his own implementing bill, which says that an amendment, reenactment or repeal of a criminal statute is retroactive.
“I think she’s concerned there will be a wholesale release of violent offenders without legislative oversight,” Rouson says about Moody. “What I want to do is make sure we enforce what the voters had in mind when they passed Amendment 11.”
Amendment supporters say that the voters exactly knew what they were doing when they voted for the bill last fall.
Kara Gross with the American Civil Liberties Union of Florida says the Tom Lee bill “thwarts the will of the people.” The bill passed its first Senate committee Monday.
“It says that any amendments can’t apply retroactively unless the Legislature says that it can,” she says. “And that’s exactly the opposite of what the people voted for. The people voted to take something out of the Constitution that prevented retroactivity.”
Concerned about what’s happening, Floridians Against Mandatory Minimums and a number of conservative-leaning groups recently wrote a letter to state Rep. Jamie Grant, the Tampa Bay area-based GOP Chairman of the House Criminal Justice Subcommittee, where the Moody approved bill is sitting. The groups want the Legislature to make sure that offenders are eligible for automatic retroactivity in sentencing.
Prisoners are waiting
It’s unclear how many inmates would be eligible for immediate release under Amendment 11. But officials with the ACLU of Florida say it would be at least a few hundred.
Denise Rock, with Florida Cares, says Floridians are simply frustrated with legislators not accepting the will of the public.
Remember, it’s happened before, she says, mentioning the recent Amendment 4 measure which gave felons the right to register to vote, and the longstanding court cases related to the medical marijuana amendment
“If Attorney General Moody wants to truly recognize what the voters voted for, then this (law) would apply to defendants already sentenced,” Rock says. “That’s what retroactivity is all about.”
As it stands now, it may be tough for Rouson to make headway on his legislation. An aide says the senator has been in discussions with Senate Criminal Justice Committee Chairman Keith Perry, a Republican from Gainesville, about placing the bill up for a vote.
But time is moving quickly in the Legislature. So far, the bill hasn’t been placed on the Criminal Justice Committee agenda for consideration.
Senator Rouson says that society has seen the “harshness” when it comes to mandatory minimum criminal sentences, particularly during the crack cocaine epidemic of the 1980s, and says the times are changing.
Says Rouson: “If the Legislature, in its discretion and wisdom, decides the punishment at one time was thought to be reasonable, but it now looks harsh in retrospect, we ought to be able to apply that to people and release them.”