Heads I Win, Tails You Lose

Opponents of mandatory minimum reform are no strangers to engaging in misleading debate and questionable rhetorical strategies. One of the tactics to watch for is “Heads I Win, Tails You Lose," or, as I like to put it, HIWTYL. (Rhymes with "futile," which is fitting in a way.) 

It goes like this: when crime rates are high or on the rise, supporters of mandatory minimums argue we need inflexible sentencing policies to combat crime. But when crime rates are low or falling, they argue we need the same inflexible sentencing policies to prevent crime rates from going up.

HIWTYL.

I’m going to keep an eye out for HIWTYL in next year’s Florida legislative session. Here’s why.

Earlier this year, Florida Senator Ellyn Bogdanoff proposed an important reform to Florida’s indefensible drug sentencing laws. In response, State Attorney Brad King, on behalf of the Florida Prosecuting Attorneys Association (FPAA), spoke against Bogdanoff’s reforms. King’s presentation was unimpressive, but his point was that prescription drug abuse was such a problem in Florida that we simply couldn’t afford to make any changes to Florida’s sentencing laws, lest it send the signal that Florida wasn’t taking the problem seriously. (Never mind that Attorney General Pam Bondi has made fighting prescription drug abuse one of her top priorities, and never mind that the legislature and Governor have taken extraordinary steps toward reducing the supply of illegal prescription drugs.) King’s point was clear: reforming mandatory minimums is surrendering in the “war” against painkiller abuse.

King ignored, of course, that, while Florida’s prison admissions for “trafficking” in opioids quadrupled from 2006-2011 (50% of those offenders were arrested for possessing or selling fewer than 30 pills), the death rate from Oxycodone overdoses increased 264% from 2003-2009. In other words, King ignored that Florida’s prescription drug epidemic really began after the state passed mandatory minimums for “trafficking” in prescription painkillers, and got worse until we tried something different.

Now, it appears that “something different” might be paying off. A new report by the Substance Abuse and Mental Health Services Administration  (SAMHSA) shows prescription drug abuse declined 14% nationally among people ages 18-25  from 2010-2011. Here in Florida, a 2011 FDLE report indicates that deaths caused by Oxycodone and Hydrocodone dropped from 2010-2011, as did incidences of either drug found in deceased persons (-10.4% and -12.4%, respectively).

One wonders, however, whether those encouraging trends will affect the positions of FPAA and other entrenched special interests who oppose sentencing reform reflexively. When prescription drug abuse rates were on the rise, FPAA argued we need mandatory minimums. Now that they seem to be falling, how will FPAA react? Will they acknowledge that mandatory minimums haven’t helped deter prescription drug abuse (and won’t), but that other, more creative solutions seem to have? Will they recognize that the encouraging trends in prescription abuse should serve as an opening to pass reforms that could save taxpayers millions and reduce recidivism, in the hopes of continuing those positive trends?

Or will King and his fellow prosecutors say, “HIWTYL!” and argue that falling rates of prescription drug abuse prove that mandatory minimums are working? I hope not, but if they do, it will confirm that at least some special interest groups oppose reform not out of a commitment to public welfare, but rather out of the naked self-interest that too often blocks real reform when it’s needed most.

~ Greg Newburn

FAMM Florida Project Director