Pending Legislation Offers Hope for Improved Drug Policy

By Barb Dougan

Each year in Massachusetts, hundreds of drug offenders receive fixed and often lengthy “mandatory minimum” sentences – 950 people in 2008 alone.  Unlike with most other offenses, the courts are barred from considering the factors that would allow them to fashion an appropriate remedy, such as the defendant’s prior criminal record, role in the offense or need for drug treatment.  Instead, drug offenders are routinely sentenced to five, 10 or 15 years in prison – even longer, and even as first-time offenders. By comparison, similar mandatory sentences are typically reserved for repeat offenders who commit violent crimes.

In Massachusetts, mandatory minimums for drug offenses are limited to distribution or trafficking offenses; there are no mandatory sentences solely for possession.  But distribution includes sharing a controlled substance with another, not just sales.  And many substance abusers have enough drugs on hand to trigger a charge of “possession with intent to distribute.”

The more serious charge of trafficking conjures up images of Miami Vice quantities of drugs.  Yet a mere 100 grams of opiates – the equivalent of a box of instant pudding mix – carries a mandatory sentence of 10 to 20 years, while 200 grams of cocaine – the equivalent of a can of baking powder – triggers a mandatory 15 to 20 years. As a result, low level players in the drug trade serve sentences intended for kingpins and sometimes even longer, because they had no information to trade for reduced charges.

A particularly egregious form of mandatory sentence is the “school zone” violation.  It applies to any drug offense committed within 1,000 feet of a school – more than the length of three football fields.  It applies at any time of day or day of the week, even when school is not in session.  A school zone violation carries a mandatory sentence of two to 15 years, which must be served after completing any sentence for the drug offense itself.

No one denies that the drug trade can have a devastating effect on neighborhoods, especially in urban areas.  But the law was enacted even though Massachusetts already had tough penalties for selling drugs to children or using them in drug transactions.  Subsequent studies showed that the vast majority of school zone cases do not involve children.  Instead, the law creates an “urban effect” where city dwellers are punished more harshly than suburban or rural residents who commit the same offense. Not surprisingly, unconscionable racial disparities result.

When “one size fits all” sentences for drug offenses were first enacted in Massachusetts, there was scant evidence that they would succeed in reducing drug use or sales.  Nearly 30 years later, the verdict is in: mandatory minimums do not work.  Instead, they result in disproportionately harsh sentences for low-level offenders, do not address drug dependency, exacerbate sentencing disparities and fail to protect public safety.  Meanwhile, taxpayers are paying the price for our failed drug policies, at about $47,000/year for a state prisoner.  Making bad drug policy even worse, drug offenders serving mandatory minimums are not eligible for parole or for re-entry programs.  The 2004 bipartisan Harshbarger Commission called such policies a “recipe for recidivism.”

Fortunately, there may be hope on the horizon.  In May 2009, Governor Deval Patrick filed a crime prevention bill that included parole eligibility for drug offenders.  This was the first time that a Massachusetts governor had supported mandatory minimum sentencing reform.  In November 2009, the state Senate passed a comprehensive criminal justice bill, S.2220, which included an even better version of parole eligibility.  (It also included CORI reform, see page 7 for more information.)  State prisoners would be eligible to apply for parole after serving two-thirds of their mandatory minimum sentence while county prisoners could apply after serving one-half.  The bill also included eligibility for work release programs, which allow prisoners to gain valuable work experience near the end of their sentence.

As this article goes to print, the House Ways & Means Committee is considering its own version of a sentencing reform bill.  Although there is a good argument for repealing mandatory sentencing laws altogether, allowing drug offenders to apply for parole and work release would be an excellent first step.  Such a reform would mitigate disproportionately long sentences for some prisoners while easing prison overcrowding and improving re-entry success rates.  In addition to these measures, which were included in the Senate bill, sentencing reform advocates are urging the House to reform the school zone law.  Merely reducing the zones from 1,000 feet to 100 feet would restore the law to its original purpose of protecting children and would cure much of the sentencing disparities that result.

Barb Dougan is the Massachusetts Project Director for Families Against Mandatory Minimums (FAMM), a Washington, D.C. based sentencing reform organization.