The impact of repealing mandatories depends on unpredictable practice changes, but precedent suggests it may be modest on average. In testimony before the Judiciary Committee in on June 9, 2015, witnesses offered differing predictions of the likely impact of repealing mandatories:
- Current Worcester county defender: Judges are likely to sentence similarly.
- Chief Justice of the SJC: Judges are likely to sentence similarly but with more consistently appropriate penalties.
- Retired Judge re Suffolk County: Judges will prevent a few “horror shows” (in which DAs insist on inappropriate penalties) but the overall drop in sentencing levels will be moderate.
- Former defender in Plymouth County: Judges will impose considerably shorter sentences overall.
- DA Panel: Variation in judicial sentencing practice will lead to judge shopping for lenient judges who will have an outsize impact on sentencing levels.
From the testimony, it seems certain that some particular cases will be resolved differently, but hard to imagine that average sentence levels will completely collapse.
To the point that sentence lengths are unlikely to collapse, comparing sentence lengths before and after the recent sharp contraction of the school zone, it appears that the average sentence length change may be near zero (although the conviction rate may have dropped): Prior to the August 2012 legislation that reduced the penalty enhancement zone around schools from 1000 feet to 300 feet, the vast majority (perhaps 80%) of drug dealing cases in urban areas were charged with the school zone penalty enhancement. A study of cases in 1998 (see Table 8) found that among drug dealing cases in Fall River, New Bedford and Springfield, 80% occurred within school or park zones. As to cocaine and heroin dealing cases, something over 80% of all cases were actually charged with the school zone offense. The percentage of cocaine and heroin dealing cases charged as school zone cases may have declined as a result of decision-making in recent years. Complaint data furnished by the trial court shows the ratio of possession-with-intent-to-distribute charges (of all classes) to school zone charges declining from historic levels around 80% to 67% in calendar 2011 even before the new law. In 2013, however, after the new law, the ratio was down to 22%. The 2012 school zone contraction sharply cut the volume of school zone complaints — from a prior average of roughly 6000 per year to under 2000 in calendar 2013.
The sharp drop in the percentage of dealing cases that were carrying a school zone charge should have resulted in a shortening of average sentence length for dealing cases if the school zone charge were an major determinant of sentence length. A case originally charged as a school zone dealing case can be broken down by the prosecutor (i.e., more serious charges dropped) to a straight dealing case or even a possession case. In return for that breakdown, the defendant may plead guilty to the lesser charge with an understanding that he will be sentenced to some amount of time incarcerated (but less than the two years mandated for school zones). Data available from the Sentencing Commission’s survey of sentencing practices do not allow us to work back to the original charge at arraignment; they show only the charge at conviction. But, given that straight possession cases are commonly disposed of without a conviction, it is reasonable to assume, as a first approximation, that any possession conviction was originally a dealing case.
From the annual Survey of Sentencing practices, we have conviction counts and mean months imposed in cases of incarceration. We can compute total person years imposed for all cocaine/class-B convictions (dealing plus possession) and for all heroin/class-A convictions (dealing plus possession) and then divide those quantities by the numbers of people incarcerated to get average sentence lengths for cocaine and heroin cases respectively. The striking finding from a 2012 to 2013 comparison of cocaine cases sentenced to the houses of corrections is that the sentence length was essentially unchanged at 0.7 years, even though the new school definition was applicable through most of Fiscal 2013. The average sentence length for heroin cases also remained essentially unchanged at 0.6 years.
There are several limitations to this analysis which all tend to slightly understate the impact of the school zone contraction:
(1) The loss of the school zone penalty in many cases may have resulted in a lowered conviction rate. While the sentence lengths remained stable, and the ratio of incarcerations to convictions also remained stable at a little over 50%, the ratio of convictions to complaints may have declined. We don’t have good data linking convictions to complaints. However, total cocaine convictions declined by 23% from Fiscal 2012 to Fiscal 2013, while the total of cocaine possession-with-intent-to-distribute complaints dropped by only 7%. Similarly, while heroin convictions rose by only 3%, heroin possession-with-intent-to-distribute complaints rose by 22%.
(2) The analysis does not actually include school zone charges leading to school zone convictions. These cases are not allocated by class of underlying drug in the data we have. If we pro-rate school zone incarcerated time across heroin and cocaine incarcerations, a decline in sentence length does emerge, but only 6% for cocaine and 2% for heroin.
(3) The analysis makes the crude assumption that all possession convictions to the House of Corrections are actually dealing cases. Of course, in practice, some straight possession cases do lead to conviction and a handful may lead to incarceration. However, the ratio of possession-with-intent-to-distribute complaints to total possession complaints (which might include as a separate count a with-intent charge) has remained fairly stable for cocaine and heroin in the 40 to 60% range. Thus, the likely dilution of a decline in dealing sentences by being grouped with straight possession charges is at most a factor of two and probably much much less than that, since possession charges are so typically resolved without a conviction.
(4) Finally, school zone changes in this analysis are also diluted because school zone dealing is lumped with non-school zone dealing. Again, since historically, since the school zone was so ubiquitous until 2012, the dilution of the decrease is low.
When these limitations are combined it is reasonable to estimate that the reduction in sentence length due to the absence of a school zone charge averages roughly 10% (5% from limitation #2 above and smaller increments from limitations #3 and #4). We must also consider the possibility that convictions are reduced by a similar percentage (limitation #1).
At the state prison level, mandatory minimums were also reduced in 2012. Straight distribution sentence lengths declined 13% and 5% for class A and B respectively. Straight dealing charges can be sent to either a house of correction or the state prison. In the state prison context, they are the lowest charge that one is likely to plea bargain down to from second offense or trafficking charges. We do not have a clear sense of how sentences would change at the state prison level if trafficking and second offense mandatory minimums were reduced or repealed. It is worth noting that the reduction in second offense mandatories was greater in percentage terms than the dealing sentence average reduction, but it is hard to disentangle the effects of the reductions in the weight mandatories.
We can hope that a finer analysis of the school zone changes will be undertaken when Fiscal 2014 data become available. There still may be some effects in the pipeline that we have not appreciated. And conversely, police and prosecutors may compensate for the loss of mandatories in ways in that we cannot anticipate. One possibility is that they may indict more borderline cases in Superior Court where sentencing expectations are higher.
Whatever the changes in sentence length and conviction rates and whatever the countervailing factors, the impact of repeal is bounded above by the total population serving time for drug offenses — approximately 1 in 6 at both the state and county levels.