This post explains mandatory minimum sentencing for drug laws in Massachusetts and how we revised the law in the final criminal justice reform package that was signed into law in April 2018. There are five major policy areas where the legislature has historically sought to make a statement or increase punishment through mandatory minimum sentences – drug dealing, drunk driving, illegal gun possession, sex offenses and murder. The only area where there has been any real political interest in reducing the mandatories is in the drug area.
In a nutshell, the reforms sought to reduce minimum mandatory sentences for lower level drug dealers, but not traffickers. Drug dealing is a business. There are retailers — dealers who sell primarily to users — and there are traffickers — dealers who sell primarily to lower-level dealers.
Many retailers are also users. Prior to the reform, they faced a number of potential mandatories and we removed or limited the applicability of most of those, except for second-offense distribution of class A drugs (heroin and, under our legislation, fentanyl and other synthetic opioids). Specifically, we repealed mandatory minimums for lower-level drug dealers of class B, C and D drugs.
We also narrowed the very common minimum mandatory for dealing near a school. It now only applies in the very limited universe of cases involving minors, violence or drug operation leadership. Dealing to minors is very rare. Direction of others will rarely be provable. Gun use by dealers is not rare, but it is behavior we do not regret punishing.
Post reform, Massachusetts statutes only includes one true mandatory minimum for simple retail drug sale offenses — the Class A 2d offense:
Post Reform -- Mandatory Minimum Sentences for Retailing
|2d distribution class A (heroin, etc.)
|Distribution to minors
|Rare -- various levels depending on substance
|Aggravated distribution school zone
|2 years on and after underlying distribution charge but only applicable in cases involving distribution to minors, use of violence or direction of others
|Inducing a minor to distribute
|5 years (not a true mandatory -- court can CWOF or suspend)
|2d offense heroin possession
|2.5 years (not a true mandatory -- court can CWOF or suspend)
We did not lower the maximum penalties for retailing — even for a sale of a tiny quantity of a dangerous drug, the penalty is up to 10 years in state prison.
Massachusetts law uses the verb “traffick” to refer to sale of larger quantities, suggestive of wholesaling. We made three changes to the trafficking laws. First, we defined fentanyl and other synthetic opioids as class A drugs and folded them into the trafficking minimum mandatories for opiates. Second, we added a new minimum mandatory for fentanyl trafficking over 10 grams. Finally, we added a new minimum mandatory for selling any quantity of carfentanyl, but that new mandatory only applies if the defendant is shown to know that the drug was carfentanyl — a steep burden.
Post reform, the trafficking statute includes the minimum mandatory sentences in the table below. (In addition, the trafficking statute includes a mandatory minimum for unlicensed marijuana sales over 50 pounds. This provision is very rarely used.)
Post-Reform -- Mandatory Minimum Sentences for Trafficking in Massachusetts
|Quantity sold or possessed with intent to sell
|Cocaine, Methamphetamine, Phenmetrazine
|Heroin/Fentanyl, other opioids
|3.5 years (carfentanyl with knowledge)
|3.5 years (fentanyl)
The Massachusetts mandatory minimum sentences are triggered at lower weights than the corresponding mandatory minimums under federal law, which do not kick until the 500 gram level for powder cocaine or the 100 gram level for heroin. At those levels, the federal mandatory minimum is only 5 years — less severe than the state penalty. (For crack, the federal 5-year minimum kicks in at 28 grams, while Massachusetts does not distinguish crack from powder cocaine.)
The federal statutes can, however, work out to be more severe than the Massachusetts statutes. The federal maximum penalty on a first trafficking offense is 40 years for 100 grams of heroin or 500 grams of cocaine, while the corresponding Massachusetts maximums are 20 years for cocaine and 30 years for heroin. The federal repeat provisions are especially severe. For a sale over 1 kilogram of heroin after two prior drug convictions, the federal statute provides for mandatory life imprisonment. The United States Sentencing Commission has published a useful new overview of the federal mandatory minimums.
Net impact of Reform
We think the changes will materially reduce incarceration overall, particularly for low-level dealers. Based on both charge volume and person-years of incarceration, the mandatory minimums that we repealed substantially outweigh the opioid mandatories that we preserved/expanded. There are too many variables to speak with precision and we will need to see how things work out, but two observations should be encouraging:
- As to arraignment volume, the school zone mandatory, which we narrowed dramatically, touches roughly as many cases as all the trafficking mandatories combined (see FY13 data from the spreadsheet in this post).
- As to incarceration volume, the Class B 2d and cocaine retail mandatories which we repealed account for 569 person-years of incarceration in the table below — almost twice as much as all the heroin trafficking mandatories (310 person-years).
- Our expansion of heroin trafficking mandatories to cover fentanyl should essentially preserve the impact of these mandatories at roughly the level observed in FY2013, when most of the trafficking still involved heroin opposed to fentanyl. Absent the change, one might see the heroin trafficking case volume dropping as the market shifts to pure fentanyl. The data in the chart below are from FY13, after the opioid epidemic had surged, but before fentanyl seizures surged. FY13 convictions reflect cases from calendar 2012 or before. According to unpublished DEA data reported by the CDC, fentanyl seizures nationwide moved from 618 in 2012 to 4585 in 2014, especially heavy in Massachusetts.)
- One could argue that our change prevents the reduction of mandatory minimum impact caused by the shift to fentanyl, but even accepting this frame, the FY13 data offers an upper bound on that impact that is well below the impact of the Class B 2d and cocaine retail impact. The new 10 gram special minimum for fentanyl trafficking will have some impact, but it is hard to see it amounting to more than the large reductions from the three cocaine/class B mandatory eliminations. The new carfentanyl mandatory should very limited impact because it requires proof of knowledge of the carfentanyl presence.
The chart below summarizes all of the drug crimes that commonly result in incarceration, showing their frequency of use in Fiscal 2013.
Relative impact of drug mandatories in Massachusetts in FY2013 (pre-reforms)
|Drug Offense Group
|Man-Years of Incarceration
|% of Man-Years
|Opiate trafficking (mostly heroin in 2013)
|Retail -- repealed in reform (including narrowed school zone)
|Retail -- not repealed in reform
|Total drug sentences
These data are computed from the Sentencing Commission’s most recently published survey of sentencing practices — fiscal 2013, analyzed in more depth here. It is important to note that fiscal 2013 was a year that mixed sentencing regimes — threshold weights for trafficking were increased and the school zone radius was diminished in 2012. Note that the chart does not include the much larger number of drug cases in which no incarceration is imposed. These statistics only include cases resulting in incarceration and reflect the most serious offense of which the defendant was convicted.
Despite the current wave of overdose deaths from opioid drugs, the Class B (cocaine) mandatories still have a surprisingly large impact both in the data above and in more recent data from 2015: They constituted 72% of all (combined retail and trafficking) mandatory charges in FY2015. We will need to see how the numbers change with fentanyl moved from class A to class B.
The chart below provides full detail on the crimes summarized above.
Drug Incarcerations in FY2013 with reform impactBased on FY2013 Survey of Sentencing Practices -- analyzed further here.
Download chart as spreadsheet.
More background on net impact — why it is hard to quantify
It is very difficult to quantify the extent to which mandatory sentences raise incarceration levels because we lack comprehensive data on the plea bargaining process. The impact may be small on average because judges would impose some incarceration with or without the mandatory minimum.
In a case not involving a minimum mandatory sentence, for example, an assault and battery with a dangerous weapon, even if the prosecutors have all the evidence they need to convict the defendant, judges have the power to decline to convict the defendant by “continuing the case without a finding”. Even if they allow it to go forward to conviction, they have the power to decline to incarcerate the defendant or to suspend the sentence of incarceration.
In a case involving a mandatory minimum drug charge, the judge has no option other than conviction if the prosecutor can prove the guilt of the defendant beyond a reasonable doubt. Upon conviction, the judge must impose the mandatory minimum sentence or something more and cannot suspend the sentence.
A prosecutor has the right to decide not to go forward with a case or on a charge within a case. In a drug dealing case involving a single sale of 20 grams of heroin, the defendant might face half a dozen charges in the same complaint – possession, possession with intent to distribute, distribution, distribution in a school zone, second offense distribution, trafficking heroin over 18 grams. The latter three in this example all carry mandatory minimum sentences and the prosecutor could insist on carrying all of the charges forward or could drop the mandatory charges and reach a plea agreement on one of the non-mandatory offenses.
In most cases, there will be a three-way negotiation between the judge, the prosecutor and the defense attorney. The defendant is likely to be explicitly or implicitly offered some kind of discount on the sentence in order to induce a plea and avoid the expense of trial. However, if the evidence is clear, as it often is in a drug case, the prosecutor can set the floor for the negotiations if some of the charges carry mandatory minimums.
A recent analysis of Superior Court cases from 2015 by the Sentencing Commission highlights the fact that mandatory minimum drug charges are often dropped in a plea bargain. In fact, only 26% of mandatory minimum drug charges resulted in a conviction as charged — 40% were dropped and 31% were replaced by a lesser-included offense ( for example a trafficking charge could be resolved as a straight distribution charge). Only 455 (38%) of 1,199 defendants whose original charges included a mandatory were convicted of a mandatory.
Prosecutors and judges are drawn from the same group – service oriented people with a legal education and some political aptitude. They are subject to somewhat different kinds of political pressure – the district attorney being elected, while the judge appointed – but as groups, they don’t have fundamentally different orientations.
Both groups — judges and prosecutors — vary widely in their view of what kind of sentence is appropriate. In a non-mandatory case, good defense attorneys will work scheduling angles to bring their client before the most lenient judge. So, the most lenient judges in the system tend to set the going rates for non-mandatory offenses. In mandatory cases, the variation is driven by the policies of the district attorney who are elected at the county level. Some DAs have much harsher policies than others.
The bottom line is this: Removing mandatory minimum sentences will tend to move average sentences downwards for a particular category of offense, but the amount of the decrease is impossible to confidently predict and will vary from county to county.