The Florida Police Chiefs Association Supports Reasonable Exceptions to Otherwise Inflexible Rules

For years, FAMM has argued that Florida’s drug laws have created negative unintended consequences by failing to allow for exceptions to harsh, otherwise inflexible mandatory minimum sentences. Whether it’s locking up thousands of low-level drug users or sending first-time offenders to prison for 25 years, Florida’s complete prohibition on sentencing discretion in drug “trafficking” cases has led both to a waste of hundreds of millions of dollars, as well as injustices that shock the conscience.

Of course, FAMM rejects the entire concept of mandatory minimum sentences. However, even if one believes a severe prison sentence is appropriate in nearly all drug trafficking cases, it is not difficult to see how the rigid application of one-size-fits-all sentencing laws can lead to absurd and heartbreaking results. That’s why FAMM has long advocated adding a “safety valve” — a statutory exception to mandatory minimums — that would allow elected judges to depart from mandatory minimum drug sentences when imposing them would be clearly inappropriate.

A safety valve has been on the books at the federal level since 1994. Prior to its adoption, some warned that restoring a measure of judicial discretion in drug cases would put kingpins back on the street and send crime rates soaring. Of course, that didn’t happen. Since the adoption of the federal safety valve, more than 100,000 people have benefited from the provision. Meanwhile, national crime rates have fallen 52 percent.

The federal safety valve has proven so successful, it simply has no opponents anymore. Skeptics from 1994 are believers today. Even staunch advocates of mandatory minimum sentences, including federal prosecutors, support the federal safety valve. Some of today’s few remaining opponents of sentencing reform actually praise the safety valve, citing it for support of their claim that the status quo provides sufficient safeguards against excessive sentences! In 1994, many of these same people opposed the safety valve. Today, they say the current law “strikes the right balance.”

In fact, the federal safety valve has been so successful that two years ago Congress passed overwhelmingly, and President Trump signed — over the objections of some law enforcement special interest groups—the First Step Act, a law that expanded safety valve eligibility. Per the U.S. Sentencing Commission, more than 5,000 people benefited from the expanded safety valve in the year after the First Step Act became law.

Despite the unambiguous success of the federal safety valve, and its now universal bipartisan support, some Florida legislators have been slow to warm to the idea. Their skepticism, in part, is rooted in the opposition of several law enforcement special interest groups — Florida-based versions of the groups that opposed the First Step Act. Among them is the Florida Police Chiefs Association, which has for years opposed even modest attempts to restore some discretion in drug sentencing.

However, it appears FPCA has begun to question the logic behind mandatory minimums, i.e., that rules should never admit of any exceptions under any circumstances, and instead embrace the principle of flexibility and discretion that underpins the safety valve.

Last week, FPCA’s “Subcommittee on Accountability and Societal Change” released a report titled, “Report and Recommendations: Use of Force Policy and Related Issues.”

The FPCA’s use of force report outlines general rules that, it argues, would limit incidents of excessive force. But the report also recognizes that it is impossible to anticipate all the ways in which rules might interact with the day-to-day realities of law enforcement. As such, the report rejects one-size-fits-all solutions in favor of generalized rules with exceptions FPCA believes are necessary to protect the safety of law enforcement officers. For example,

“Chokeholds are prohibited unless the use of deadly force is authorized.”

“De-escalation techniques are required whenever possible and appropriate before resorting to force and to reduce the need for force.”

“Where feasible, the officer shall identify himself or herself as a law enforcement officer and warn of his or her intent to use deadly force.”

“An officer has a duty to intervene to prevent or stop the use of excessive force by another officer when it is safe and responsible to do so.”

“The requirement to exhaust all alternatives before shooting is impractical and could result in unnecessary risk to officers and citizens . . . in some circumstances, the only reasonable response would be the immediate use of deadly force, i.e. an officer being shot at or otherwise being under the imminent threat of death or great bodily harm.”

“The complete ban on shooting at vehicles is impractical and could result in unnecessary risk to officers and citizens . . . In some narrow circumstances . . . shooting at a moving vehicle may be required for the preservation of human life and to protect against the imminent threat of death or great bodily harm.”

The principle behind FPCA’s recommended use of force policy — i.e., general rules that admit of exceptions when enforcement of those rules would be unreasonable — is identical to the principle behind the drug sentencing safety valve. FPCA wants discretion for law enforcement officers because it’s impossible to know in advance every conceivable set of circumstances in which, e.g., shooting at a moving vehicle, while discouraged as a general practice, could be required to save lives. By extension, their theory goes, a blanket rule that permits no exceptions invites tragic unintended consequences.

But that same reasoning is exactly why FAMM wants Florida’s elected judges to retain some discretion over drug sentencing! It is impossible to write a sentencing statute that anticipates every conceivable case. That’s why a law targeted at “major players in the drug trade” led to a 25-year sentence for first-time offender, and grandmother, Cynthia Powell. The answer is to allow judges — women and men held accountable through exactly the same political process that holds sheriffs, state attorneys, and legislators accountable — some flexibility to ensure that unanticipated cases don’t become tragedies.

I should make clear that I take no position on the substance of FPCA’s use of force recommendations, as I am neither a law enforcement officer nor an expert on the use of force in law enforcement, and I believe it’s a good rule of thumb to avoid taking a position on complex policy questions that fall outside the scope of my limited expertise. I make note of these recommendations — once again, without judgment in either direction — only because, in adopting them, FPCA has essentially rejected the logic of mandatory minimums, and endorsed FAMM’s reasoning on sentencing policy.