On Nov. 6, Floridians will have a chance to approve the single largest expansion of the franchise since women’s suffrage: a constitutional amendment that will restore voting rights to 1.5 million rehabilitated felons. The proposal, Amendment 4, would repeal a Jim Crow relic in the Florida Constitution that strips civil rights from formerly incarcerated citizens, permanently transforming the state’s electorate. Some conservative groups have joined with progressives to support the amendment, which looks likely to pass with broad bipartisan support. (Like all proposed amendments, it requires 60 percent of the vote to succeed.)
Amendment 4 isn’t the only criminal justice measure on the Florida ballot, though. Another proposal, Amendment 11, would repeal a constitutional provision that bars the Legislature from applying criminal justice reforms retroactively. Thanks to this archaic rule, thousands of Floridians are languishing in prison under mandatory minimum sentences that have since been dramatically reduced. Yet Amendment 11 has proved substantially more controversial than Amendment 4, drawing opposition from liberals who worry it will be exploited by gun rights advocates. This rift on the left creates a very real risk that a vital reform will be stymied by inflated fears of the National Rifle Association.
Oddly enough, Amendment 11 actually includes three distinct provisions—the result of “logrolling” by Florida’s Constitution Revision Commission, which has a bad habit of bundling unrelated proposals into a single amendment. The first part would repeal a different anachronistic constitutional amendment, which prohibits immigrants ineligible for American citizenship from owning, inheriting, or possessing property. This provision was added in 1926 to prevent Asian farmers from competing with whites. It’s plainly unlawful under the federal Constitution; in 1948, the Supreme Court struck down an identical law in California.
While Florida’s law is unenforceable—and, in fact, has never been enforced—it remains a shameful vestige of discrimination that deserves to be eradicated.
Next, Amendment 11 would formally repeal a ballot initiative providing for a high-speed monorail through the state. Voters approved the monorail plan in 2000, then rescinded it in 2004, but inoperative language from the 2000 initiative remains in the constitution. This provision is essentially housekeeping.
Finally, there’s the heart of Amendment 11: the repeal of Florida’s so-called Savings Clause. This constitutional provision was inserted in 1885 as a rash response to the failed prosecution of a single high-profile assault. Today, the clause is an anomaly: Florida is the only state in the country whose constitution bars the retroactive application of any amendment to a criminal statute.
In a Reason report published in April 2017, Lauren Krisai and C.J. Ciaramella explored the tragic consequences of this rule for victims of the opioid crisis. The Florida Legislature imposed strict mandatory minimums on individuals who possessed illegal painkillers in 1999. Under the statute, a person caught carrying just 54 pills of oxycodone or hydrocodone without authorization faced a mandatory minimum of 25 years in prison, plus a $500,000 fine. Although the law was aimed at “opioid traffickers,” prosecutors used it to imprison people with addiction and low-level dealers. There are about 2,300 inmates in Florida imprisoned for “opioid trafficking,” yet the vast majority of them had never been to prison before serving their current sentence. The mandatory minimum did not stop traffickers. It ensnared nonviolent people in desperate need of medical intervention.
Recognizing the horrific impact of this law, the Florida Legislature amended it in 2014 to lower the mandatory minimums. Under the new statute’s modest reforms, for instance, an individual who unlawfully possess about 50 oxycodone pills faces a mandatory minimum of 15 years. That’s still far too high. But if it applied retroactively, the law would allow for the release of myriad inmates sentenced for opioid trafficking. As one such inmate, James Caruso, wrote Ciaramella:
Under the new law I would be subject to a seven-year prison term and $100,000 fine. I have served more than twice that and owe five-times the fine. A person in Florida could literally do the exact same thing today that I did in 2002 and still get out of prison before me.
James Caruso should not still be in prison. But thanks to the Savings Clause, the Legislature is powerless to help him. His only hope for relief right now is a pardon or commutation from Republican Gov. Rick Scott. But Scott is notoriously stingy with clemency, and the governor is extremely unlikely to release any alleged “opioid traffickers” from prison. If Floridians pass Amendment 11, the Legislature can finally help people like Caruso by applying new sentences to old offenders.
In recent weeks, however, several influential editorial boards have come out in strong opposition to Amendment 11. (Few voters have time to learn the nuts and bolts of all 12 amendments and often use editorial recommendations as a guide on Election Day.) The Sun Sentinel, which endorsed Amendment 4 “emphatically,” urged voters to oppose Amendment 11, largely because “the practical effects are unclear and the NRA’s reported interest in this provision is of serious concern.” Similarly, the Tampa Bay Times—which published an entire editorial backing Amendment 4—warned readers that “gun-rights groups see this as a way to ensure that the revised Stand Your Ground law … could be applied retroactively.” The board advised a “no” vote, dismissing the amendment as “a non-starter for the Constitution.”
It’s true that the NRA supports Amendment 11, and that the Constitution Revision Commission includes a number of pro-gun partisans. The fear here is straightforward. Under a radical 2017 revision of Florida’s already extreme “stand your ground” statute, the burden of proof falls on prosecutors to demonstrate why a shooter should not be granted immunity. Gun safety advocates fret that, if Amendment 11 passes, a flood of firearm offenders charged under the old law will challenge their convictions, and obtain a Get Out of Jail Free card.
The American Civil Liberties Union of Florida has championed Amendment 11 in spite of these misgivings. On Friday, I asked Melba Pearson, the group’s deputy director, how she felt about the NRA’s support. “Many are concerned that there are nefarious intentions” behind the proposal, she told me. And some progressives worry that “if the NRA supports something, is the wool being pulled over my eyes?” Pearson calls these fears “valid.” But she said the benefits are simply too overwhelming to let the gun issue sink the amendment.
“We are fighting across the state of Florida for criminal justice reform,” she said. “We want to see a rollback of mandatory minimums, the legalization of recreational marijuana,” and a dramatic reduction of the state’s prison population. “We want to assist people who were negatively impacted by [overly punitive] laws in the past,” Pearson explained. Repealing the Savings Clause “has the potential to help so many people who have been disproportionately impacted by the criminal justice system.”
The ACLU’s long-term plan for criminal justice reform in Florida, in other words, requires the abolition of the Savings Clause. It also relies on the election of Andrew Gillum, the state’s Democratic gubernatorial candidate. Gillum is running on a platform of ambitious criminal justice reform—and the impact of his policies depends in part on their retroactive application. Amendment 11 stands in between Gillum and his sweeping vision of change, of second chances for inmates and formerly incarcerated people. There may be drawbacks to the repeal of Florida’s Savings Clause. But with thousands of Floridians’ liberty on the line, the cost of opposition is just too high.