The Change in Law Regarding Fight Against Opiate Trafficking

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To tackle the growing problem of opiate addiction and trafficking, the Florida Legislature made a big change to the trafficking and possession laws in Florida in 2014. In June of the previous year, the governor signed into law SB 360 which raised the trafficking threshold weights for oxycodone and hydrocodone and adjusted the minimum sentences for the trafficking and distribution of those drugs.

The Old Regime

Under Florida law, drug trafficking encompasses even the simple possession of illegal drugs so long as you have more than a certain weight on your person. For opiates, that threshold used to be four grams. What is important to keep in mind is that this is not four grams of the opiate substance itself, but the weight of the entire pill. In that case, a four-gram limitation means that a person in possession of just seven painkiller pills could be found to be “trafficking” them. The mandatory minimum sentence for trafficking in opiates was a three-year prison sentence with higher minimums based on the weight possessed.

One need not be an expert in substance abuse to see that this resulted in a large number of Florida residents addicted to painkillers to be prosecuted as “traffickers,” incarcerated for years at a time rather than treated as addicts in need of medical help. In many cases, these prosecutions effectively dissolved addict’s chances of rehabilitation after prison, which fuels a rise in addiction rates for former inmates. Not surprisingly, and as part of a general trend, this helped to contribute to Florida’s large prison population and correspondingly high budget. However, it led to no discernable decrease in illicit trafficking and sale of opiate-based drugs.

Understanding SB 360

Because of the lackluster effect the legal paradigm had on curbing the trafficking of opiates, several lawmakers and lobbies sought to make reforms. One of those proposed was simple: raise the weight thresholds that triggered trafficking prosecutions. While some may wish to cast a wide net, the case in Florida was one already too wide. The pre-SB360 paradigm meant that people most likely not involved in high-level trafficking were sucking needed resources from law enforcement and courts that would be better used against big-time traffickers and distributors. Though there was some resistance by law enforcement and prosecutors, fearing that what inroads had been made may be lost, it was clear to everyone involved that something needed to change.

So enters the SB 360 regime. It increased the weight totals for opiate-based prescription painkillers that contain Oxycodone and Hydrocodone and altered sentences for trafficking in them. Specifically, the bill made the following changes:

Comparing the Changes – Old Law

Hydrocodone:	Oxycodone:
4 grams, 7 Pills: 3 Years	4 grams, 31 Pills: 3 Years
14 grams, 22 Pills: 15 Years	14 grams, 108 Pills: 15 Years
28 grams, 44 Pills: 25 Years	28 grams, 215 Pills: 25 Years

Under New Law

Hydrocodone:	Oxycodone:
14 grams, 22 pills: 3 years	7 grams, 54 pills: 3 Years
28 grams, 44 pills: 7 Years	14 grams, 108 pills: 7 Years
50 grams, 78 pills: 15 Years	25 grams, 193 pills: 15 Years
200 grams, 308 pills: 25 Years	100 grams, 770 pills: 25 Years

After SB 360

Right off the bat, one will notice that the biggest change between the old and new regimes at the lower end of the scale. Gone is the mandatory minimum for possession of under 14 grams of hydrocodone pills and under 7 for Oxycodone. Instead of the harsh minimums in place for over fifteen years, simple possession cases will now be punished under the Criminal Punishment Code. This is not just good for those possessing small amounts of opiate-based prescriptions, not to mention those addicted and needing treatment, but also for the taxpayer.

Retroactivity

Though one can applaud the change in the law and sentencing going forward, there still remains an issue that is difficult to resolve. Since so many offenders would, under the new regime, not be prosecuted or subject to the mandatory minimums of the former regime, will former offenders be able to have their sentences reviewed and reduced or considered served? In short, the answer is no. Florida has an odd provision in its Constitution that limits when laws related to sentencing can be made retroactively. Essentially, when the law covers an entire class of individuals who are serving time, then it cannot be applied backward to affect those current inmates. Therefore the new regime only applies to cases after July 1, 2014.

The relevant constitutional provision is Article X, Section 9, which provides:

Repeal or amendment of a criminal statute shall not affect prosecution or punishment for any crime previously committed.

A Proposal

A simple change to the law may fix the problem. Simply adding a provision that allows a person currently incarcerated for a violation of the former trafficking statute committed before July 1, 2014 may petition the sentencing court for resentencing under current law, would allow any person currently serving a sentence to file a motion for resentencing. This very simple change would be both constitutionally valid, as it does not apply to a whole class, but allow those seeking a resentencing to take advantage of the recognition on behalf of legislators and the governor that the old sentences were, by and large, too long. A person could receive 15 years in prison for simple possession of just 22 hydrocodone pills. Now that same offense would carry a significantly shorter three-year sentence. There is no doubt that there are some inmates still serving time who have already been behind bars longer than policymakers thought appropriate for the crime.

Though the Constitution prohibits a wholesale change, it does not discard the ability of a particular person to petition for a change. Therefore, any change in sentencing would be at a court’s discretion on individual cases, not a wholesale class of people. This would seemingly relieve the courts of a constitutional challenge to the small change and yet have a net positive result. This change could free up and alter in a positive way, the lives of many people who have served their debt to society, and maybe, unfairly forced to do more than those in power believe they should. This change not only makes sense but completes the work of the legislature in 2014 when the enacted SB360.