On the road to repeal: MA Senate driving change in automatic license suspension law for drug offenders

In 1989, the Massachusetts State legislature passed a little known law (to some), which has since had a major impact on many: G.L. c. 90 § 22(f) states that the RMV shall without a hearing suspend the license of anyone who has been convicted of violating Massachusetts' Controlled Substances Act (G.L. c. 94C) for up to 5 years. Back then, the legislature had a good reason for doing so; the federal government passed a law (23 U.S.C. § 159) which requires states to pass such license suspension laws to avoid the Secretary of the Department of Transportation withholding a (large) percentage of funding to the state for roadways and similar infrastructure. The federal law, however, did give an "out" to states who did not implement the "mandated" license suspension law. But this "out" requires the Governor of the state in question to file with the Secretary a "written certification" stating both that the Governor opposes the license suspension law and that the state legislature has adopted a resolution expressing its opposition to the law. Needless to say, for the most part, neither Governors nor state legislators have wanted to face re-election after going on record and stating they oppose a particular punishment for drug law offenders, particularly during the 1990's and early 2000's when the so-called "war on drugs" was in full-swing.

That is, until recently. It is hoped that Massachusetts will soon become the 35th state to repeal their license suspension for drug offense law. Earlier this year, Senate Majority Leader Harriette Chandler sponsored a bill that would essentially repeal G.L. c. 90 § 22(f). The bill (S1812) was referred to the Transportation Committee where it was "reported favorably" to the Senate Ways and Means Committee. Yesterday, September 17, the Ways and Means Committee said of the bill that it "ought to pass" with an amendment; the amended bill (S2014) was introduced today and will be voted on next Thursday, September 24. The amended bill, from a criminal defense lawyer's viewpoint like mine, is even better than the original bill because it specifically requires the reinstatement/renewal of all licenses previously suspended pursuant to the automatic license suspension law (so long as there are no other impediments to reinstatement/renewal). Even better, the amended law will also result in license reinstatement without drivers having to pay a $500 fee, which is currently required. Beyond this, and even more beneficially, the RMV will be required to "shield from public access all records of the suspension and the underlying offense, including records of the expiration of the suspension, any hearings or appeals related to the suspension and the reinstatement following the suspension."

Perhaps the one downside to the bill is that it won't take effect until 60 days after it is passed. This is slightly problematic given the fact that only the senate will be voting on it next Thursday; the House will have to vote on it also. Fortunately, the House Ways and Means Committee has also "reported favorably" on an almost identical bill (H3039).

Putting aside the political hurdles which must still be surpassed before the draconian and capriciously punitive license suspension law is finally put to rest, it seems almost inevitable that the bill will become law in the near future. Influential persons/groups who you would expect to be opposed to the bill (namely because they are tasked with prosecuting violations of the drug laws) are now actually in favor of it: the Commonwealth's Attorney General, the Middlesex County Sheriff, and the Massachusetts District Attorneys Association. This is largely because common sense dictates that the law was a bad idea in the first place. The purpose of the law was, essentially, to discourage persons from violating the drug laws by strictly punishing those persons (the inability to drive for a long period of time being one of them). This certainly seemed appropriate for motor vehicular offenses involves drug use/intoxication and operation. However to extend to it to all drug offenders without the underlying charge(s) being connected to, or having a nexus with, driving was both ill-advised and non-justifiable. One obvious problem with the initiatives original rational was that it was wholly counter-intuitive to rehabilitation: if someone couldn't get to a legitimate job because they just lost their license, how are were going to get back on their feet without having to possibly resort to the very activity the law was designed to discourage? Another was based on fundamental fairness and due process. How can the state justify taking away a particular privilege for conduct completely unrelated to the privilege itself? Yet another was purely practical. How can criminal courts already over- burdened with low-level drug offenses dispose of cases without costly, time-consuming, and jury session-clogging trials when offenders were facing stiffer sanctions (years-long license suspensions outside of court than they were in the courtroom itself? Last, the penalty was so inconsistent with the work-regulate-rehabilitate premise that defines alternative drug courts as to threaten to undermine it altogether.

So "hats off" to those policy-makers who not only recognized the license suspension policy was broken, but also have taken appropriate steps and measures to fix it. I won't go as far as saying the repeal signifies an end here in the Commonwealth to our ill-conceived anti-drug initiatives from the late 80s and early 90s, but it is "one more brick" removed from the once un-scalable wall of the regressive knee-jerk legislation that didn't simply define that particular decade, but negatively and unfairly prejudiced so many lives in its aftermath.