January 6, 2020
I wrote a guest column for the Orlando Sentinel several years ago discussing the futility of mandatory sentencing and why prosecutorial discretion was critical to the fair enforcement of our drug laws. Mandatory sentencing, in my opinion, was a reactionary solution to a difficult situation. “Drugs are bad, you are bad, go to jail.” Time and study however have shown this to be a simplistic view to a complex problem that cannot be addressed without also addressing issues of health, addiction, and economic environmental factors.
A generation of prosecutors and law enforcement officers responsible for protecting our community were raised in, and have now seen firsthand, that the “War on Drugs” has contributed to mass incarceration. Many of our citizens who could have benefited from treatment and pre-trial diversion instead had their lives destroyed over what was essentially a health care issue and with a conviction record found themselves with few options for a productive life. Now, faced with the consequences of our drug polices, criminal justice reform has entered our national and local political conversations in a way not seen in nearly three decades. Legislators from both sides of the aisle are backing reforms that are long overdue and finally being addressed due to a combination of rising prison populations, racial disparities in sentencing, and the realization that those formerly incarcerated need a chance to succeed once their debt to society is paid.
Our elected lawmakers have already begun filing bills designed to reform our criminal justice system in preparation for the 2020 legislative session. Several of these bills attempt to address the minimum mandatory sentences associated with “trafficking” in certain controlled substances. “Trafficking,” in this context, can mean simply possessing a certain amount of a controlled substance. This means individuals can get addicted to substances that are legal with a prescription— typically codeine, oxycodone, or hydrocodone—and then be sent to prison because they develop an addiction that needs treatment, not prison time. Having first spoken out about this issue more than eight years ago, I am pleased to see reform is coming, but want to emphasize the need for reforms that can often be found in between political positions.
Our local Representative Anna Eskamani has filed a bill (HB 6053) eliminating all minimum mandatory sentences
associated with trafficking in controlled substances. I agree with the spirit of Ms. Eskamani’s bill in that it would protect those who get addicted to prescription drugs from draconian minimum mandatory sentences. Senator Jason Brandes’ approach to the issue (SB 468) is not an across-the-board elimination of minimum mandatories, but rather a provision that allows judges not to impose the minimum mandatory so long as the circumstances surrounding the incident do not pose a threat to the public. Senator Brandes’ approach, however, exposes prescription drug addicts unnecessarily to minimum mandatories. Both legislators are trying to tackle a definite problem from opposite sides of the aisle, and I find their work encouraging. Hopefully, the new session will result in legislation that obtains meaningful reform and results.
This need for common ground, which is clearly there, would serve our legislators well in many areas where change is needed in our criminal justice system. I support local Senator Randolph Bracy’s efforts (SB 578) to ensure our children are not arrested under the age of 12, as well as his effort, co-sponsored by Senator Brandes’, to make non-prison sanctions more available to sentencing judges (SB 424), but I am concerned about blanket statements and conclusions in both pieces of proposed legislation. Sweeping, unyielding, and uncompromising positions without consideration of the circumstances or consequences is neither justice nor reform. The solution exists in the middle.
The bottom line is that it is time to reform our criminal justice system in meaningful ways that can make our system more just, while also protecting the public. We should not, and do not, have to choose between these two imperatives. Ethical prosecutors balance these sometimes-competing interests every day. My current role and career demonstrate I have little tolerance for violent crime, but that does not mean I cannot be an advocate for reforms that provide second chances and a path forward for those who fall into addiction, or simply make mistakes. State Attorneys need to add their voice and experiences to this important conversation, and I plan to make my voice heard now, and going forward, to ensure justice is done.