Mandatory Minimums in the Senate Criminal Justice Package

Mandatory minimum sentences for drug crimes are a hot button issue in the conversation about criminal justice reform. Here is an explanation of the issue and how we treat it in the criminal justice reform package now pending before the Senate.

If reforms are passed, how will drug dealers be punished?

Regardless of how the mandatory minimum issue is resolved in the coming legislative debate, people who sell dangerous drugs will continue to face long prison terms. Even for a sale of a tiny quantity of a dangerous drug, the penalty is and will remain up to 10 years in state prison. 10 years in state prison is a heavy sentence that one might face for a serious violent crime.

What is a mandatory minimum sentence?

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.

How do sentencing negotiations work?

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.

What should we expect to happen if we repeal a minimum mandatory sentence?

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.

Yet, 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.

What does the reform bill before the Senate do to minimum mandatories?

There are five major policy areas where the legislature has sought to make a statement or increase punishment through mandatory minimum sentences – drug crimes, drunk driving, illegal gun possession, sex offenses and murder. The only area where there is any real political interest in reducing the mandatories is in the drug area and that is the only area addressed by our pending legislation.

The thrust of our legislation, as it relates to drug sentencing, is to distinguish between retailers and wholesalers in the drug business. The low-level dealers, many of whom are users, currently face a number of potential mandatories and we would repeal most of those. The hope is that more dealer-users would get the treatment they need and that more of the dealers who are not users would get pushed back into school or lawful employment. Yet, undoubtedly, many will continue to be incarcerated in the cases where judges feel that is the right outcome.

As to wholesalers, those who sell to dealers, our legislation makes more limited changes. It would make no reduction to the penalties for wholesaling heroin. In fact, it would strengthen the penalty structure by subjecting fentanyl type drugs to the same penalties as heroin.

Massachusetts law uses the term “trafficking” to refer to wholesale activity and distinguishes trafficking based on the weight of material sold or intended to be sold. For both heroin and cocaine, the penalty structure increases on a ladder: 18 grams, 36 grams, 100 grams, 200 grams.

Our pending legislation makes no change to the heroin ladder, but would remove the bottom two rungs on the cocaine ladder, so that no penalty enhancement would apply until one reached 100 grams of cocaine. Currently, the minimum penalty at the 36 gram level for cocaine is 3.5 years, well below the 10 year non-mandatory penalty for distribution which would continue to apply.

What would the impact of the bill be if passed as drafted?

The chart below inventories all of the drug crimes that commonly result in incarceration, showing their frequency of use in Fiscal 2013, the last year for which data has been published. Note that the chart does not include the much larger number of drug cases in no incarceration is imposed. For more information on the penalties associated with each crime, please see this post.

Overall, from the data below (which is summarized here), it appears that the mandatory minimums that our bill would not repeal — the heroin trafficking and the high weight cocaine trafficking — account for approximately 2% of the case flow as reflected in ultimate sentences. These statistics only include cases resulting in incarceration and reflect the most serious offense of which the defendant was convicted.  The actual percentage of case flow that would continue to be affected by mandatories is therefore several fold higher because of the indirect effects of mandatories in plea bargaining, perhaps 6 to 10% of the cases.

As to the rest of the case flow, the vast majority of drug cases, mandatories would not apply and the result would be somewhat lower average sentences for most drug crimes. The exact outcome is impossible to predict, but hopefully, judges would use their additional discretion wisely.

Drug Incarcerations in FY2013 with Proposed Law Changes

Based on FY2013 Survey of Sentencing Practices -- analyzed further here.
Existing LawTotal personsTot Person Years% persons%person yearsS.2170 Action
Traffic Heroin 200+ -- G.L. c. 94C, s.32E000.0%0.0%None
Traffic Heroin 100-200 -- G.L. c. 94C, s.32E1120.0%0.4%None
Traffic Heroin 028-100 -- G.L. c. 94C, s.32E11950.5%2.8%Note: 2012 level
Traffic Heroin 036-100 -- G.L. c. 94C, s.32E4250.2%0.7%None
Traffic Heroin 014-028 -- G.L. c. 94C, s.32E251681.1%4.9%Note: 2012 level
Traffic Heroin 018-036 -- G.L. c. 94C, s.32E2100.1%0.3%None
Traffic Cocaine 200+ -- G.L. c. 94C, s.32E2270.1%0.8%None
Traffic Cocaine 100-200 -- G.L. c. 94C, s.32E111320.5%3.9%None
Traffic Cocaine 028-100 -- G.L. c. 94C, s.32E402891.7%8.5%Note: 2012 level
Traffic Cocaine 036-100 -- G.L. c. 94C, s.32E3170.1%0.5%Repealed
Traffic Cocaine 014-028 -- G.L. c. 94C, s.32E683062.9%9.0%Note: 2012 level
Traffic Cocaine 018-036 -- G.L. c. 94C, s.32E7200.3%0.6%Repealed
Distribute Class A 2nd -- G.L. c. 94C, s.3217920.7%2.7%Repealed
Distribute Cocaine 2nd -- G.L. c. 94C, s.32A15790.6%2.3%Repealed
Distribute Class B 2nd -- G.L. c. 94C, s.32A16590.7%1.7%Repealed
Control Substance School -- G.L. c. 94C, s.32J751573.2%4.6%Repealed
Distribute Cocaine -- G.L. c. 94C, s.32A1504316.5%12.6%Repealed
Possession Class A Heroin 2nd -- G.L. c. 94C, s.34540.2%0.1%Repeal Minimum
Distribute Class D 2nd -- G.L. c. 94C, s.32C220.1%0.1%Repealed
Traffic Mar 50-100 -- G.L. c. 94C, s.32E230.1%0.1%None
Distribute Class A -- G.L. c. 94C, s.3239456817.0%16.6%None: not mandatory
Distribute Class B -- G.L. c. 94C, s.32A42951418.6%15.1%None: not mandatory
Giving Prisoner Cont Sub -- G.L. c. 268 s.288100.3%0.3%None: not mandatory
Larceny Cont Sub -- G.L. c. 94C, s. 37240.1%0.1%None: not mandatory
Distribute Class C -- G.L. c. 94C, s.32B20100.9%0.3%None: not mandatory
Possession Class A 2nd -- G.L. c. 94C, s.34840.3%0.1%None: not mandatory
Possession Class B 2nd -- G.L. c. 94C, s.3417120.7%0.4%None: not mandatory
Possession Class D 2nd -- G.L. c. 94C, s.34000.0%0.0%None: not mandatory
Possession Hypodermic 2nd -- G.L. c. 94C, s.27100.0%0.0%None: Previously repealed
Distribute Class D -- G.L. c. 94C, s.34C118615.1%1.8%None: not mandatory
Distribute Class E -- G.L. c. 94C, s.34D1670.7%0.2%None: not mandatory
Distribute Counterfeit Substance -- G.L. c. 94C, s.32G620.3%0.1%None: not mandatory
Distribute Paraphenalia -- G.L. c. 94C, s.32I000.0%0.0%Repeal Minimum
Forge Prescription -- G.L. c. 94C, s.33b1980.8%0.2%None: not mandatory
Possession Class A -- G.L. c. 94C, s.34221649.6%1.9%None: not mandatory
Possession Class A Heroin -- G.L. c. 94C, s.3495344.1%1.0%None: not mandatory
Possession Class B -- G.L. c. 94C, s.3434411114.9%3.3%None: not mandatory
Possession Class C -- G.L. c. 94C, s.3444121.9%0.4%None: not mandatory
Possession Class D -- G.L. c. 94C, s.341230.5%0.1%None: not mandatory
Possession Hypodermic/Syringe -- G.L. c. 94C, s.27000.0%0.0%None: Previously repealed
Presence Class A -- G.L. c. 94C, s.351340.6%0.1%Repealed
Possession Class D Marijuana -- G.L. c. 94C, s.34410.2%0.0%None: not mandatory
Possession Class E -- G.L. c. 94C, s.3452112.2%0.3%None: not mandatory
Conspiracy Violate CSA -- G.L. c. 94C, s.4033571.4%1.7%None: not mandatory
FY2013 Total23123413100.0%100.0%

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Will Brownsberger
State Senator
2d Suffolk and Middlesex District