How the Reforms to Prescription Drug Trafficking Laws Affect Sentencing Policy in Florida

Earlier this year, the Florida legislature passed SB 360/HB 99, sponsored by Senator Rob Bradley and Representative Katie Edwards. SB 360 raised the trafficking weight thresholds for prescription painkillers containing Oxycodone and hydrocodone, and recalibrated the mandatory minimum sentences associated with “trafficking” in prescription painkillers. What does this reform mean for Florida’s drug sentencing laws?

Before SB 360

Under Florida law, drug “trafficking” includes simple possession of illegal drugs above a certain weight threshold. For opiates, that threshold was four grams. However, for prescription painkillers, Florida weighs the entire pill, and not just the illegal substance in the pill, to determine the relevant weight. The impact of this decision was that simple possession of as few as seven painkiller pills was considered “trafficking,” and therefore subject to a mandatory minimum three-year prison sentence (with higher sentences corresponding with greater weights). The result? Florida prosecuted many thousands of low-level drug offenders addicted to painkillers as “traffickers,” and incarcerated a large percentage of them. This filled Florida’s prisons and caused its corrections budget to skyrocket, but it didn’t make a dent in either drug trafficking or abuse. For a comprehensive overview of Florida’s prescription painkiller sentencing laws before SB 360, see this OPPAGA report.

SB 360 

The OPPAGA report linked above made several policy proposals to fix the obvious shortcomings with Florida’s prescription trafficking sentencing laws. One of the proposed reforms was to raise the weight thresholds that triggered trafficking. Since the intent of including weight thresholds in the trafficking law was to use them to reasonably imply intent to distribute, a threshold that was too low would fail to distinguish between users and dealers/traffickers. Such was the case with prescription painkillers. It was beyond dispute that Florida was locking up huge numbers of low-level drug offenders at tremendous cost to taxpayers and without any corresponding public safety benefit. And while law enforcement and prosecuting attorneys resisted any reforms for years (claiming then that any change to sentencing laws would jeopardize the inroads made against opiate addiction, even though no such inroads had been made), every disinterested observer – i.e., everyone who wasn’t a special interest group that benefited directly from the status quo  – understood that changes were necessary. 

SB 360 raised the weight threshold for trafficking in prescription painkillers containing Oxycodone and hydrocodone, created new weight categories for trafficking in those drugs, and recalibrated sentences for trafficking in them. Specifically, the bill made the following changes: 

  • Trafficking in 7 grams or more, but less than 14 grams, of oxycodone or 14 grams or more, but less that 28 grams, of hydrocodone: 3-year mandatory minimum term and $50,000 fine. (Current law: 3-year mandatory minimum term/$50,000 fine for trafficking in 4 grams or more, but less than 14 grams, of oxycodone or hydrocodone.)
  • Trafficking in 14 grams or more, but less than 25 grams, of oxycodone, or 28 grams or more, but less than 50 grams, of hydrocodone: 7-year mandatory minimum term and $100,000 fine. (Current law: 15-year mandatory minimum term/$100,000 fine for trafficking in 14 grams or more, but less than 28 grams, of oxycodone or hydrocodone.)
  • Trafficking in 25 grams or more, but less than 100 grams, of oxycodone, or 50 grams or more, but less than 200 grams, of hydrocodone: 15-year mandatory minimum term and $500,000 fine. (Current law: 25-year mandatory minimum term/$500,000 fine for trafficking in 28 grams or more, but less than 30 kilograms, of oxycodone or hydrocodone.)
  • Trafficking in 100 grams or more, but less than 30 kilograms, of oxycodone, or 200 grams or more, but less than 30 kilograms, of hydrocodone: 25-year mandatory minimum term and $750,000 fine. (Current law: 25-year mandatory minimum term/$500,000 fine for trafficking in 28 grams or more, but less than 30 kilograms, of oxycodone or hydrocodone.)

To put the changes in more concrete terms, here are the mandatory minimum sentences for Oxycodone and hydrocodone under the old law:

Hydrocodone:

4 grams, 7 Pills: 3 Years

14 grams, 22 Pills: 15 Years

28 grams, 44 Pills: 25 Years

Oxycodone:

4 grams, 31 Pills: 3 Years

14 grams, 108 Pills: 15 Years 

28 grams, 215 Pills: 25 Years

And here are the mandatory minimum sentences for Oxycodone and hydrocodone under the new law. (NOTE: these are estimates!)

Hydrocodone:

14 grams, 22 pills: 3 years

28 grams, 44 pills: 7 Years

50 grams, 78 pills: 15 Years

200 grams, 308 pills: 25 Years

Oxycodone:

7 grams, 54 pills: 3 Years

14 grams, 108 pills: 7 Years

25 grams, 193 pills: 15 Years

 100 grams, 770 pills: 25 Years

After SB 360

The most notable change between the old law and the new law is that SB 360 eliminated the mandatory minimum for illegal possession or distribution of hydrocodone painkillers under 14 grams, and illegal possession or distribution of Oxycodone painkillers under 7 grams. This means that those offenses, which had been punished with mandatory minimum prison sentences since 1999, will now be punished like the huge majority of other crimes, under the Criminal Punishment Code. According to an analysis of SB 360, this change will save Florida taxpayers nearly $17 million over the next five years, but that estimate is almost  certainly too low, since  the estimate “does not reflect the change to the minimum weight threshold for trafficking in oxycodone from 14 grams … to 7 grams,” and nearly three out of four opioid “trafficking” cases involve Oxycodone. 

Unfortunately, these changes are not retroactive. Because of an anachronistic and facially silly provision in the Florida Constitution, changes to criminal sentencing laws cannot be made retroactive in a way that covers an entire class of people already serving sentences for crimes. (It is unclear whether there are any means to allow currently incarcerated offenders to apply for resentencing; FAMM is researching this option.) In any event, the new weight thresholds and sentences will apply only to cases after the effective date of the law, July 1, 2014. There is plenty more to be done about Florida’s drug trafficking sentencing laws, but SB 360 represents a huge step forward for sentencing reform in Florida.

If you have any questions about SB 360, or Florida’s drug sentencing laws, please contact FAMM’s State Policy Director, Greg Newburn, by email at gnewburn@famm.org, or by phone at 352.682.2542.