By Patrice Brymner, Esq.
For the Criminal Justice Policy Coalition, July 2004

Introduction

The Massachusetts legislature is currently considering five bills that would loosen current mandatory minimum sentences for drug offenses.  Four of the bills carry sweeping new criminal sentencing guidelines and would establish some degree of judicial discretion in mandatory drug cases.  Another bill would create parole eligibility after completion of two-thirds of a mandatory drug sentence.  None of the bills would eliminate mandatory minimum sentences, but each would significantly change the application of current mandatory sentencing.  This paper examines the changes proposed in the four bills to establish sentencing guidelines.  

Two of the current proposals, Senate No. 219 and House No. 3302, are identical, and are based on recommendations from the Sentencing Commission.  Those bills are discussed here as Model One.  The two other proposals are House No. 2750 (Model Two) and House No. 2749 (Model Three). 

The guidelines proposed in the three models are based on use of a sentencing grid, containing set sentence ranges according to the severity of a given crime and the defendant’s criminal back­ground.  Offenses are assigned to one of nine seriousness levels, and defendants are assigned to one of five history groups, based on the number and type of their previous convictions (classifications and assignments vary between the bills).  Sentence ranges are assigned in each bill for the various combinations of history and offense seriousness.  For a full discussion of the sentencing grid and the proposed guidelines generally, go to Current Proposals for Sentencing Guidelines: Background and Basics at www.cjpc.org/ma_proposal_chart.htm.

 Under all models, current mandatory drug sentences would remain in place, but judges could depart from mandatory sentences under certain conditions.  The models establish different conditions for this departure, and would impose different sentences once mandatory sentences were sidestepped.  Model One is the least punitive of the three and would allow the bypass of mandatory sentences for a greater number of drug offenses, establish less stringent requirements for the departure, and impose lower sentences once mandatory minimums were bypassed.  

Another bill, Senate No. 167 (Cynthia Creem, D - First Middlesex and Norfolk) would create parole eligibility upon completion of two-thirds of a mandatory drug sentence, thus loosening current and future mandatory terms.  According to the Sentencing Commission, one-third of the men and women serving mandatory drug sentences would be eligible for parole if the bill passes.  Of those, half would likely receive parole, thereby saving the state $12-15 million in the first year alone, according to Senator Creem.   

Background

In the 1970s, a rarely seen alliance developed between conservatives, pushing for tougher criminal punishment, and liberals, seeking increased judicial fairness and racial parity in sentencing.  This unlikely political marriage eventually led to the creation of sentencing guidelines and then mandatory minimum sentences throughout the country, including Massachusetts [i]   

The first mandatory sentence in Massachusetts came in 1973, adding a year of incarceration for using a gun while committing a crime.  Mandatory sentences for drunk driving and very serious penalties for drug dealing followed in the 1980s.  Reform continued in the 1990s.  In 1991, the Task Force on Justice[ii] referred to sentencing in Massachusetts as “haphazard, confusing, and archaic,” and in 1993, the Massachusetts legislature adopted the "Truth in Sentencing Act” to lengthen prison sentences, while making them more consistent.  The act also abolished so-called “Concord”[iii] sentences and automatic good time, eliminated early release for parolees, and established the Massachusetts Sentencing Commission.[iv]  The Commission proposed sentencing guidelines in 1996, which are the basis for the current proposals.  

Current Context

Currently, about 30 percent of the state’s prison population is incarcerated for first- and second-time drug offenses,[v] at a cost of over $100 million each year. [vi]  Mandatory minimums for drug offenses disproportionately affect people of color.  In Massachusetts, 89 percent of those serving mandatory minimums are people of color, while about 80 percent of the state’s population is white.[vii]  The difference is not explained by drug use rates – whites do not use drugs at lower rates than non-whites.[viii]   

The length of a mandatory minimum drug sentence in Massachusetts is determined solely by the type and weight of the drug.  In calculating the weight of a drug, any substance used to “cut” the drug is included; ten grams of pure heroin is treated the same under mandatory sentencing as one gram of heroin mixed with nine grams of a neutral substance.[ix]  The only other factor that is considered is whether the defendant "cooperated" with the prosecution.

 

Under current mandatory drug sentencing, judges may impose sentences with only a one-day difference between the minimum and maximum terms (e.g., 3 years to 3 years and a day).  This common practice precludes parole consideration, which can only occur upon completion of the minimum sentence.  According to the Sentencing Commission, as of January 2002, in nearly 62 percent of mandatory drug sentences imposed, the difference between the minimum and maximum sentences was one day.[x]  All three models would eliminate this practice.

 

Application of the Proposals

Drug offenses are treated very specifically under all three models.  In each, mandatory minimum drug sentences remain set by the statute governing the offense.  None of the proposals incorporate mandatory minimums into the sentencing grids they would establish.  Under each model, but only under specific circumstances, judges may bypass existing mandatory minimum sentences, and instead apply the appropriate sentence ranges found on the grid. 

The master crime list used in each model lists about 46 drug felonies.  Of those, some 31 carry mandatory minimum sentences.  Of that 31, only 23 are available for departure from the grid under Model One.  Fewer than 10 are available for departure under Models Two and Three.  

Departures from Drug Minimums

			Departure Allowed
Offense	Mand Term	Offense Level	Model One	Model Two	Model Three
Drug, dist or possess with intent Class A	None	4	--	yes	--
Dist or possess with intent, methamphetamine, cocaine, phencyclidine	1 yr	4	yes	yes	yes
Marijuana, traffick in, 50 – 100 lbs	1 yr	4	yes	--	--
Drug violation near school	2 yr	4	yes	yes	yes
Drug, dist or possess with intent, Class C, subs offense	2yr	5	yes	--	--
Drug, dist or possess with intent to minor, Class C	2 yr	5	yes	--	--
Subs offense - Dist or possess with intent Class B	3 yr	5	yes	--	--
Marijuana, traffick in, 100 – 2,000 lbs	3 yr	5	yes	yes	yes
Cocaine or phenmetrazine, traffick in, 14 – 28 grams	3 yr	5	yes	yes	yes
Drug, induce minor to distribute	None	6	yes	--	--
Subs offense - Dist or possess with intent Class A	5 yr	6	yes	--	--
Methamphetamine, dist or possess with intent subs offense	5 yr	6	yes	--	--
Marijuana, traffick in, 2,000 – 10,000 lbs	5 yr	6	yes	yes	yes
Cocaine or phenmetrazine, traffick in, 28 – 100 grams	5 yr	6	yes	yes	yes-
Heroin/morphine/opium, traffick in, 14 – 28 grams	5 yr	6	yes	yes	yes
Drug, dist or possess with intent to minor, Class A	5 yr	6	yes	--	--
Cocaine, dist or possess with intent, to minor	5 yr	6	yes	--	--
Heroin/morphine/opium, traffick in, 28 – 100 grams	7 yr	7	yes	yes	yes
Marijuana, traffick in, 10,000 or more lbs	10 yr	7	yes	--	--
Cocaine or phenmetrazine, traffick in, 100 – 200 grams	10 yr	7	yes	--	--
Heroin/morphine/opium, traffick in, 100 – 200 grams	10 yr	7	yes	--	--
Cocaine or phenmetrazine, traffick in, 200 or more grams	15 yr	8	yes	--	--
Heroin/morphine/opium, traffick in, 200 or more grams	15 yr	8	yes	--	--

Class A:  Includes substances with any quantity of opiates and opium derivatives, such as heroin;

Class B:  Includes substances with any quantity of opium, methadone; cocaine, amphetamine, its salts, optical isomers and salts of its optical isomers, any substance, which contains any quantity of methamphetamine, including its salts, isomers and salts of isomers;

Class C:  Includes substances with any quantity of central nervous system depressants such as diazepam and Prazepam; substances containing certain small amounts of codeine, opium, morphine; and any substance containing any amount of certain hallucinogenic substances;

Class D: Includes substances such as Phenobarbital and marijuana                                          (M.G.L. Ch. 94C sec. 31) 

 

A particularly troubling offense is “drug violation near school.”  According to the Massachusetts Sentencing Commission, this offense accounts for the most frequent mandatory drug conviction, with 356 convictions in fiscal year 2002.[xi]  For 297 of those convictions, this was the governing offense, representing slightly more than 44 percent of all mandatory drug convictions that year.[xii]  Another 59 defendants were convicted that year with this offense charged in addition to some other governing offense, usually a drug charge, but not always.[xiii]  Based on DOC statistics, some 21 percent of women serving mandatory drug minimums were convicted of this offense, compared to only about 8 percent of the men.[xiv]  This offense has been the subject of controversy in the Boston area, as almost any location in the city is “near” a school – within 1,000 feet of a school, park or playground.[xv] 

Procedure to Bypass Drug Minimums

Under Model One, judges may bypass mandatory minimums where a) the defen­dant has only a minor to moderate criminal record; b) that record does not include any Level 7 or 8 convictions; and c) the judge finds one or more mitigating circumstance.  The judge must provide written reasons for departure and “[t]he standard for sentencing below the mandatory minimum term is more stringent than the standard for departure below a sentencing guidelines range.”[xvi] 

Conditions for bypassing drug minimums	Model One	Model Two	Model Three
Minor/moderate criminal history	yes	yes	yes
No prior level seven or eight controlled substance convictions	yes
No prior drug distribution or trafficking convictions		yes	yes
No use of violence, threats of violence, possession of gun or dangerous weapon (inducement of another participant to do so)		yes	yes
Offense did not cause death or serious bodily injury		yes	yes
Defendant was minor participant in the criminal conduct		yes	yes
Defendant not charged with offense involving minors		yes	yes
Defendant provides prosecution all information and evidence s/he has about the offense		yes
Defendant proves conditions by clear and convincing evidence		yes	yes
Judge finds one or more mitigating circumstance guided by non-exclusive list	yes
Judges limited to use of exclusive list of mitigating circum­stances		yes	yes

           

Under Model One, the minimum term shall be two-thirds the maximum set from within the grid range, and becomes the parole eligibility date.  Inmates are eligible for earned good time, work release, and other prerelease programs.  Where a judge does not bypass the mandatory minimum sentence, the minimum sentence need not be two-thirds the maximum and inmates are not eligible for parole, earned good time, until completion of the mandatory minimum sentence, which may not occur in time for the inmate to make use of these options.

            Conditions for departure under Models Two and Three differ significantly from Model One, and slightly from each other.  These models contain more numer­ous and more stringent requirements for departure, with Model Three establishing the most onerous condition: defendants must provide the prosecution with all evidence and information they may have concerning the offense.  This condition may place the defendant at considerable personal risk, even within jail, depending on the power and reach of other individuals about whom the defendant may be asked to provide information. 

            Where judges bypass mandatory minimums, as in Model One, the minimum term would be two-thirds the maximum as set within the grid cell range, and the defendant would be eligible for parole at the expiration of that term.  The defendant in that case would be eligible for earned good time, work release, and other prerelease programs. However, unlike Model One, once a judge bypasses the mandatory minimum under Models Two and Three, no downward departure from the grid cell ranges is allowed. 

Conclusion

The devastating nature of mandatory minimum sentences, particularly for nonviolent drug offenses, is recognized by many, including some who once advocated for sentencing reform.  Judges, defense attorneys, and even some prosecutors have all seen instances where mandatory sentences have worked against justice and ruined lives.  Admitting a mistake when a position has been passionately taken is very difficult.  However, in the case of mandatory minimums, it is time to face reality and find a way to correct continuing injustice.  

Of the lessons to be learned, we should not overlook what follows when reactionary legislation is enacted.  Mandatory minimum drug sentences are perhaps an unintended consequence of sentencing reform for some early liberal proponents, who, with the best of intentions, sought reform to correct racial and class disparity.  However, mandatory sentences were swept in with the powerful movement for sentencing reform, and comes at a high price.  Both financially, and in terms of racial and class equity, mandatory minimums have cost the nation dearly, and continue to do so.   

            Efforts to limit prejudicial outcomes by limiting judicial discretion backfired when discretion then fell, unfettered, to prosecutors operating with a state-mandated goal to charge and convict those who violate the law as written.  Perhaps a better course of action would have been judicial education.   

            At some point, in any model of criminal adjudication, decisions regarding the consequences of committing criminal actions are in human hands.  Because legislation cannot control human tendencies, it is better to leave these decisions to those at least ostensibly impartial, the bench, not those responsible for bringing convictions.  

More Information

            To learn more about mandatory minimum sentencing reform in other states, see Mandatory Minimum Sentencing in Massachusetts: Alternative Approaches (CJPC, March 2004) http://www.cjpc.org/manmin_in_other_states.htm.  For more information on drug policies and drug policy reform, including marijuana decriminalization, medical marijuana, and diversion from prison to treatment, go to the Drug Policy Forum of MA at www.dpfma.org.

[i] “In the wake of the urban riots of the late 1960s, conservative politicians began winning elections with calls for a return to "law and order." The movement dovetailed with a call from the left for less judicial discretion in sentencing, as liberals believed that judges were using their discretion to sentence minority defendants to longer terms than whites. In 1973, New York State passed the Rockefeller drug laws, establishing mandatory minimum sentences for drug crimes, and other states soon followed suit. At the federal level, Senators Strom Thurmond, the Republican from South Carolina, and Ted Kennedy, the Democrat from Massachusetts, collaborated on a bill that limited judicial discretion,” Daniel Brook, A History Of Hard Time: Solitary Confinement, Then And Now, from Legal Affairs, January/February 2003 at http://www.legalaffairs.org.

[ii] The Task Force on Justice was a joint enterprise of the Boston Bar Association and the Crime and Justice Foundation.  The Task Force further noted that because Massachusetts’ judges operated without guidance on what to consider in sentencing (except for crimes carrying mandatory penalties) the result was “substantial disproportionality in sentences” and “a lack of uniformity.”  Other concerns included the “tenuous relationship between the sentence imposed and the time actually served;” the “ad hoc approach to sentencing reform in recent years;” and, the “constraints on uniform and proportional sentencing posed by the existence of mandatory sentencing.”  (See Massachusetts Sentencing Commission, Sentencing Guidelines Legislation Background at:www.state.ma.us/courts/admin/sentcomm/background.html). 

[iii] “The Concord sentence was, until its abolition by the Truth-in-Sentencing Act, St. 1993, c. 432, § 20 (see 120 Code Mass. Regs. 200.05[2] [1997]), a sentencing option widely used by Superior Court judges in the 1980's, accounting for almost half of all incarcerations of convicted male offenders in the decade prior to the defendant's sentence. See Massachusetts Department of Correction, 1987 Court Commitments to the Massachusetts Department of Correction, at 3 (June 1988) (Figure 2). It was a legal term of art that involved, even for serious felonies, the imposition of an apparently long sentence on an individual deemed capable of rehabilitation (particularly a first-time offender, which the defendant was misrepresented as being), not to the State prison at M.C.I., Walpole (now called Cedar Junction) but rather to the State "reformatory" at M.C.I., Concord, with parole eligibility arising after a small fraction (here, just one-tenth) of the stated sentence pursuant to parole board policies and regulations.”  (Commonwealth v. Thurston, 53 Mass. App. Ct. 548, 554-555 (2002), describing Concord sentences) 

[iv] The Massachusetts Sentencing Commission was established in April 1994, by the "truth in sentencing" law, Chapter 432 of the Acts of 1993. The provisions creating the Commission and establishing its mandates were revised and codified as M.G.L. c. 211E. The Commission consists of fifteen members, including three judges, three prosecutors, and three defense counsel, along with representatives from the Executive Office of Public Safety, the Massachusetts Sheriff's Association, the Department of Correction, the Parole Board, the Office of the Commissioner of Probation, and the Victim Witness Assistance Board.  The stated mission of the Sentencing Commission is to “promote truth in sentencing by formulating uniform sentencing policies, developing systematic sentencing guidelines, and integrating intermediate sanctions within the sentencing guidelines.” 

[v] MassINC, Prisons and Sentencing in Massachusetts: Waging a More Effective Fight Against Crime (1999).

[vi] As of March 2004, the total DOC population was 10,026, according to Massachusetts Department of Correction Quarterly Report on the Status of Prison Overcrowding, First Quarter 2004; 30 percent of that population is 3,007 people.  At a conservative estimate of $41,000 per year per prisoner, this year the state is spending over $123 million to incarcerate first and second time drug offenders.  Some sources report the per prisoner cost as much higher; Dr. Tom O'Connor of the Justice Studies Department, North Carolina Wesleyan College, maintains a database tracking state per prisoner costs.  His reporting shows Massachusetts as bearing the highest per prisoner cost of all states (36) reporting at over $43,000 (http://faculty.ncwc.edu/toconnor/prison.htm).

[vii] Massachusetts Sentencing Commission, Survey of Sentencing Practices 2002.

[viii] Based on information from the Drug Policy Forum of Massachusetts; see also “Testimony Concerning Sentencing Reform Proposals,” William J. Leahy, Chief Counsel, Committee for Public Counsel Service at www.mass.gov/cpcs/2003_guidelines_testimony.pdf.

[ix] Recognized “cuts” include “diluents and adulterants, such as quinine hydrochloride, mannitol, mannite, dextrose and lactose, used, primarily intended for use or designed for use in cutting controlled substances.  (M.G.L. Ch. 94C.).

[x] Mass. Sentencing Comm., Survey 2002.

[xi] Mass. Sentencing Comm., Survey 2002.

[xii] Based on information found in the Mass. Sentencing Comm., Survey 2002, see page 84.

[xiii] Mass. Sentencing Comm., Survey 2002, page 80.

[xiv] Based on information from DOC, January 1, 2003, Inmate Statistics, page 22.

[xv] M.G.L. Ch. 94C sec. 32J.

[xvi] The meaning of the term “more stringent” is not quantified in the proposal.  House No. 3302, page 100.