Drug dealing is a business. There are retailers — dealers who sell primarily to users — and there are wholesalers — dealers who sell primarily to lower-level dealers. Wholesale transactions are generally larger and our laws penalize larger transactions more heavily.
Massachusetts law uses the verb “traffick” to refer to sale of larger quantities, suggestive of wholesaling. Last revised in 2012, 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.)
|Quantity sold or possessed with intent to sell||Cocaine, Methamphetamine, Phenmetrazine||Heroin, Morphine, Opium|
|18+ grams||2 years||3.5 years|
|36+ grams||3.5 years||5 years|
|100+ grams||8 years||8 years|
|200+ grams||12 years||12 years|
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.
In addition to the mandatory minimums for trafficking offenses, Massachusetts statutes do include mandatory minimums for a number of retail level drug sale offenses:
|2d offense distribution class A (heroin, etc.)||3.5 years|
|2d offense distribution class B (cocaine, etc.)||2 years|
|1st offense distribution cocaine, meth, PCP||1 year|
|2d offense distribution cocaine, meth, PCP||3.5 years|
|2d offense class C (pills)||1.5 years|
|2d offense class D (marijuana)||1 year (not a true mandatory -- can fine instead and court can CWOF or suspend)|
|Distribution to minors||various levels depending on substance|
|Sale of paraphernalia||1 year (not a true mandatory -- can fine instead and court can CWOF or suspend)|
|Distribution in school zone||2 years on and after underlying distribution charge|
|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)|
It is very difficult to quantify the impact that mandatory sentences have on incarceration levels, because in most cases, judges would impose some incarceration with or without the mandatory minimum. But we can measure the man-years of incarceration associated with actual sentences under each mandatory minimum.
|Drug Offense Group||Man-Years of Incarceration||% of Man-Years
|Heroin trafficking >100g||12||0.4%|
|Cocaine trafficking >100g||159||4.6%|
|Heroin trafficking < 100g||298||8.7%|
|Cocaine trafficking < 100g||632||18.5%|
|Retail (no weight predicate)||827||24.1%|
|Total drug sentences||3425||100%
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.
A more 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.
The FY2013 man-year breakdown in the table above reflects the final convictions, not the original charges. We can safely assume, based on the FY2015 charge analysis, that most of the FY2013 cases were originally charged one or two levels higher than they were settled. Probably, well over half of the 2013 non-mandatory incarcerations were plea bargained from mandatory charges. To see this, note that in 2015 in Superior Court, 744 cases starting with mandatory charges resulted in non-mandatory sentences (most of which were likely incarcerations, since most Superior Court Cases result in incarceration); there were, most likely, many additional mandatory-to-non-mandatory cases in District Court. Yet in the District Court and Superior Court combined in 2013, there were only 1497 incarcerations where the governing offense was non-mandatory.
A couple of additional observations from the data: (1) Despite the current wave of overdose deaths from opioid drugs, the Class B (cocaine) mandatories still have a surprisingly large impact, constituting 72% of all (combined retail and trafficking) mandatory charges in FY2015. (2) There is an apparent shift towards superior court and state prison for drug cases, possibly as a result of the reduction in availability of district court school zone mandatories. In 2013, the school zone reduction was not in force for much of the year and most of the dispositions probably reflected prior law. The number of Superior Court drug mandatory incarcerations in FY2013 was 398.* In FY2015, it was apparently higher — 455 drug cases were disposed on mandatory charges. Direct, apples-to-apples comparisons, if eventually forthcoming from the Sentencing Commission, will clarify whether this shift is real.
*398 = 446 (the number of all cases incarcerated for mandatory drug offenses in FY2013, see the underlying data) less 48 (the number incarcerated from District Court for school zone offenses, see Table 42 in the FY2013 survey).
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