The Appeal of/for Mandatory Minimums Repeal

A coalition of nearly sixty organizations is holding a ?Smart on Crime? rally today at the State House in Boston in support of, among other legislation being considered, Governor Deval Patrick’s stance on mandatory minimum sentencing reform, i.e. repeal, in drug offense cases. I won’t admit I was completely wrong to support mandatory minimum drug sentences when I was first a state prosecutor, then a federal prosecutor, and subsequently a County Sheriff. However, I will now admit that I was terribly near-sighted back when I did. There’s no question that, back then, I allowed my perspective to be colored by what I perceived to be my law enforcement mandate and by my concerns about blatant forum shopping (for lenient judges). It was also informed by my awareness of the impact of drugs on inner city neighborhoods, which I witnessed first-hand in my pre-mandatory minimum days as a young prosecutor in Manhattan.

I like to think my views have matured with age since then, and whether it’s the accumulated wisdom of years or my rejuvenated career as a criminal defense attorney, I now realize—and have for quite some time—how unfair and disproportionate mandatory minimum sentences are when imposed on non-violent and/or first-time drug offenders. I also understand how expensive they have become, not only because of the price of street-level enforcement, but also because of the high cost of warehousing so many first time non-violent offenders for such lengthy periods. (Believe me when I say I am familiar with the counter-claim that drug offenses should not be deemed ?non-violent? because drugs can lead to violence and crimes against property, because I used to ascribe to that fiction myself. In response now, I say ?hog-wash?, and ask if red is actually orange because it becomes so when mixed with yellow…)

I now also realize how incredibly unfair mandatory drug sentences are in terms of providing tools for over-zealous prosecutors to bully and leverage disadvantageous plea ?deals? out of low-level offenders and even minor ?players?; or how they have contributed to massive back-logs in our Criminal Justice System by all but compelling offenders to take their chances at trial; or how they make no distinction between the addict or the dealer, or the desperate or the greedy, and allow no personal mitigation based on personal history, pathology, or circumstances; and how they leave no room for mercy or understanding. But most of all, I know how significantly unfair they have been to minority communities, especially with the grossly exaggerated inequities between how offenses involving ?crack? cocaine and offenses involving powder cocaine were for so many years being sentenced in federal courts. For that reason, I applauded when the U.S. Congress finally passed the Fair Sentencing Act in 2010 by substantially raising the threshold amounts/weights that serve as triggers for 5 years and 10 years mandatory federal sentences in crack cases, and effectively reduced sentencing disparities between powder and crack cocaine from an original ratio of 100 to 1, to now 18 to 1, and eliminated mandatory sentences for straight possession of crack altogether.

Now that this has been done at the federal level, it’s time for individual states to take similar actions. Governor Patrick’s related initiative (H 40) to repeal most mandatory drug sentences in the Commonwealth of Massachusetts is the right way to proceed in this regard. In sum, under H 40 all mandatory minimum drug sentences would be repealed for those drug offenses that do not involve guns, violence, or children. Also, state prisoners currently serving mandatory prison sentences would be eligible for parole after serving one-half of their maximum sentences. State and County prisoners could earn good-time credits and become eligible for work-release, and school zone violations would be reduced from 1,000 feet to the far more realistic, foreseeable, and enforceable 100 feet, as would sales ?near? parks and playgrounds, while mandatory sentences for any drug sales within the new radius would be maintained. Despite the elimination of most mandatory drug sentences, the same maximum penalties that currently apply in mandatory minimum sentence situations would continue, while using or carrying a firearm in the commission of a drug offense would still result in a mandatory sentence, as would certain prior convictions.

Those who may claim that such a proposal signals a ?softening? on crime, or a total surrender in the ?War on Drugs?, need only consider that less than 10 ounces of powder cocaine could still result in a possible sentence of twenty years in prison and persons dealing in large quantities of controlled substances could still ?have the book thrown at them? and be sentenced up to the statutory maximum any time the nature and degree of their offense, or their criminal history, warrants it. The difference is that judges would again be given absolute discretion in sentencing and each case, and each defendant, would again be evaluated, and sentenced, on the specifics of his case and the unique characteristics, or merits and demerits, of his own life and personal history. Isn’t that how it’s supposed to happen? Isn’t that the way we hope it would work for each of us? Isn’t it time we take the Legislature out of the business of imposing sentences and return that important and critical function to judges we have hired (and in some states have elected) and paid to do it fairly, professionally, and most of all, impartially? It really is true that what’s old is sometimes new, and I like to think we continue to evolve as a rational society. In my opinion, repealing our irrational and unfair drug laws is but one example of how returning full circle can actually lead to a new and better beginning.