AS LAST MONTH’S MassINC poll reports, two-thirds of Massachusetts residents believe that drug use should be treated as a health problem rather than as a crime. And only 8 percent of Massachusetts residents agree with Attorney General Jeff Sessions that mandatory minimum sentencing is a wise criminal justice policy.
But our drug laws haven’t changed much since the tough-on-crime days of the 1980s. Anybody convicted of trafficking in cocaine in Massachusetts today gets a mandatory two-year prison sentence, without regard to any of the considerations we (92 percent of us anyway) think are relevant, like — is the person a drug entrepreneur or merely a drug addict?
These laws are still on the books even though we’ve learned in the past 30 years that they’re ineffectual, costly and, yes, very discriminatory: Three-quarters of those convicted of minimum mandatory drug offenses in Massachusetts in a recent year were members of racial or ethnic minorities. So who, besides Jeff Sessions, thinks we should keep them?
Answer: most of the state’s district attorneys, all of whom gain enormous leverage from the laws imposing mandatory minimum sentences for drug crimes. Before these laws were enacted, it was the job of the judge to sentence a guilty defendant. Now it’s the job of the prosecutor, who effectively operates all the levers of power in drug cases. The prosecutor decides whether to use the threat of a mandatory minimum sentence to coerce a defendant into accepting a plea deal. And if accepted, that plea deal comes with an agreed-upon sentence that the judge has no power to reject or amend.
It’s no surprise that the district attorneys want to hold onto this near absolute power.
They also want us to believe that mandatory minimum sentences haven’t deformed the criminal justice system, because prosecutors use their discretionary power “judiciously and wisely.”
Essex County District Attorney Jonathan Blodgett, for example, rejects the idea that the consolidation of so much power in prosecutors’ offices has warped the system. That accusation, he says, is “a bunch of nonsense…I’ve been doing this job for 13 years and if somebody thought that they office was being unfair and heavy handed in its use of mandatory minimums, I would find out pretty quickly.”
Ditto for Suffolk County District Attorney Daniel Conley, who contends that prosecutors use mandatory minimum sentencing laws “wisely and with precision.” And a recent case his office prosecuted appears to illustrate what he means by that phrase.
The mandatory minimum statute at issue in the case is known as the “school zone law.” It imposes a 2½ year sentence for a drug law violation that takes place within 300 feet of a school or within 100 feet of a public park. The law was intended, in the view of its chief advocates, including then-Gov. Michael Dukakis, to create drug-free zones to protect school children from drug dealers.
In May 2014, Boston police officers, observing a car stopped at a red light at an intersection adjacent to a public park, noticed that its registration had expired. After the light turned green, the car proceeded through the intersection (and outside the public park radius), and was pulled over by the officers. After some scuffling and after a search, the police arrested one of the passengers and charged him with numerous crimes, including three drug offenses, one of which was a violation of the school zone law, specifically its “public park” language.
The defendant moved to dismiss that charge, arguing that the law was not intended to be so broad as to apply to someone who is in a car being driven on a street next to a park and is therefore only momentarily within the protected area. The DA’s office opposed the motion. Their position: The defendant possessed drugs in a quantity sufficient to infer an intent to distribute them, and by passing through an area protected by the school zone law he became subject to the law anywhere and everywhere. In other words, the law that one might have thought was intended to protect children in specifically-demarcated spaces can, at a prosecutor’s discretion, include the entire state.
The lower court, rejecting this extreme interpretation, dismissed the school zone charge against the defendant. Doubling down, the DA’s office appealed that decision. In a unanimous opinion that considered the meaning of the words “absurd,” “illogical,” and “unconscionable,” the Supreme Judicial Court agreed with the lower court — the charge had been properly dismissed.
So in the ongoing criminal justice reform debate, when you hear that prosecutors use their powers under mandatory minimum statutes “wisely and with precision,” let’s be sure to remember this school zone case.
Margaret Monsell is a staff attorney at the Massachusetts Law Reform Institute. Rahsaan Hall is director of the Racial Justice Program at the American Civil Liberties Union of Massachusetts. Leslie Walker is executive director of Prisoners’ Legal Services.