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District attorney draws fire after voicing support for mandatory minimums

Yawu Miller
Yawu Miller is the former senior editor of the Bay State Banner. He has written for the Banner since 1988.... VIEW BIO

Swimming against a rising tide of public sentiment, Suffolk County District Attorney Dan Conley made waves last week with a spirited defense of mandatory minimum sentences for criminal offenses in Massachusetts.

Speaking during the Massachusetts Criminal Justice Reform Coalition Summit at the University of Massachusetts Boston, Conley vigorously opposed repealing mandatory minimums, which he said would give judges too much discretion in sentencing.

“We shouldn’t leave to chance the idea that 400 judges have 400 different views on how defendants who commit drug offenses ought to be sentenced and give them full and unfettered discretion. It is a recipe for disaster,” Conley was quoted as saying in a MassLive report.

Conley’s broadside against repealing mandatory minimums comes as public officials ranging from former Gov. Deval Patrick to Suffolk County Sheriff Steve Tompkins have spoken out publicly against the mandatory sentencing guidelines.

His remarks came after Supreme Judicial Court Chief Justice Ralph D. Gants gave a lengthy keynote address detailing his opposition to mandatory minimums during the forum, which was sponsored by MassINC, the Mass Bar Association and Community Resources for Justice.

Gants pointed out that in 2013, the most recent year for which data is available, racial and ethnic minorities accounted for 75 percent of the 450 people convicted of minimum mandatory drug offenses in Massachusetts. He argued that mandatory minimum sentences have done nothing to stop the drug trade, pointing out that drug overdose has increased six-fold since 1990 and is now the leading cause of accidental death in Massachusetts.

“The fact is that minimum mandatory sentences in drug cases have failed to substantially affect the price of availability of dangerous narcotics,” he said.

Conley drew fire from retired U.S. District Court Judge Nancy Gertner, who called his comments in support of mandatory minimums “outdated, inaccurate, overstated, even disrespectful” in an op-ed in the Massachusetts Lawyer’s Weekly publication.

Beginning in the 1980s, legislators in Massachusetts and other states have favored mandatory minimum sentences as a response to what many saw as an epidemic of drug-related crime. Critics have argued that mandatory sentencing takes away their discretion to consider the merits of each case.

“As a commonwealth, we need to look at some of the larger implications of the war on drugs and the disproportionate impact it’s had on people of color,” said Rasaan Hall, a former Suffolk County Prosecutor who is now deputy director of the Lawyers Committee for Civil Rights and Economic Justice.

In 2012, then-Gov. Deval Patrick signed legislation reducing mandatory minimum sentences for many non-violent drug offenses from 5 years to 3 ½ years.

This year, legislators in Massachusetts are considering ending mandatory minimums for many categories of crimes. The Massachusetts Black and Latino Legislative Caucus is backing a bill advanced by state Sen. Sonia Chang Diaz and Rep. Mary Keefe that would end mandatory minimums.

Criminal justice reform advocates cite the racial disparities of arrests and sentencing in arguing for reform. Police have broad leeway in how they can charge suspects caught in possession of drugs, notes ACLU attorney Carlton Williams.

“They catch a white kid with three-quarters of an ounce, and they let him go,” he said. “They arrest a black kid, and he’s facing possession with intent to distribute.”

Among the factors Williams, a former defense attorney, has seen police and prosecutors cite to establish that a suspect is a dealer, and not a casual user, are whether a suspect has cash in his possession, where the suspect was apprehended, tinted windows on a car, or possession of a rental car.

Few serve time

Suffolk County District Attorney’s Office spokesman Jake Wark cited the relatively low incarceration rate in Massachusetts as evidence prosecutors are not abusing mandatory minimum sentences. While the incarceration rate in the United State is 700 per 100,000 people – the highest in the industrialized world – in Massachusetts the rate is 200 per 100,000 people.

“The incarceration rate in Massachusetts fell 13 percent between 2008 and 2013,” he said. “When you see that rate falling and compare it to other states, it’s clear that prosecutors are using their discretion judiciously and sparingly. We’re targeting the individuals who are driving crime in Boston and in Suffolk County. When we seek a sentence in a house of correction or a state prison, it’s because the offender is a repeat offender, violent offender or high-level offender.”

But Williams says the state’s incarceration rate doesn’t paint the full picture, noting that many defendants end up on probation. He cites a hypothetical case where a suspect is arrested with a small quantity of drugs.

“If you’re caught with three ecstasy tablets anywhere in Boston, you’re in a school zone,” he said.

The school zone – anywhere within 100 yards of school – along with a police officer’s contention that the suspect was selling, or intending to sell the pills, automatically triggers a two-year mandatory minimum sentence.

Williams and others say prosecutors often use the school zone charge, and the threat of a mandatory minimum, to pressure suspects into pleading guilty to a lesser charge in exchange for probation.

“It creates an unfair advantage for the prosecutor,” Rasaan Hall said. “Defendants are less likely to roll the dice if they’re facing a mandatory sentence. Even if you’re innocent, there’s a strong risk that 12 jurors won’t see things your way and convict.”

Once the jury votes to convict a defendant, the judge has no choice but to impose the mandatory sentence.

Whether or not suspects served jail time, the drug charges greatly diminish their chances of obtaining employment and make it impossible to secure student loans or public housing. And those convicted must pay $65 a month to stay on probation, Williams points out.

“We destroy peoples’ lives and leave them on the hook,” he said.