Our Opinion: Drug sentencing reform is welcome, overdue

Massachusetts is edging ever closer to major reforms to its criminal justice system, most welcome of which are efforts to repeal certain mandatory minimum sentences for drug crimes.

In a watershed moment, the Senate on October 27 passed a comprehensive criminal justice reform package that, among other things, would curb the one-size-fits-all system that, for decades has stripped judges of discretion in crafting sentences for certain drug offenses. The House is expected to begin debate this week on its own bill that, too, seeks to eliminate mandatory sentences for certain low-level, non-violent drug offenses. It is anticipated that the Legislature will send a compromise bill to Governor Charlie Baker early next year.

Minimum mandatory sentences arose in the 1970s from the urban myth of slimy drug dealers lurking around schoolyards seeking to ply their trade to defenseless children. The myth was compounded by the assertion that soft-hearted (read: liberal) judges would simply slap the dealer on the wrist and the dealer would return to the streets to continue where he left off. There was little, if any, evidence to support this myth. But like any good story, it was captivating and compelling.

Ostensibly, minimum mandatory sentences were designed to guarantee that these vicious predators would be taken off the streets as well as to deter others from undertaking such reprehensible conduct. What minimum mandatory sentencing did accomplish was to transfer discretion from judges to police and district attorneys who choose which crimes to prosecute. While some district attorneys may, for instance, choose to waive the "school zone" enhancement and simply prosecute a defendant for the underlying crime, others choose to prosecute to the full extent of the law, which may lead to results that appear to be unjust. In Berkshire County, many years ago, a Pittsfield High student with no criminal record was sent to jail for two years without parole for selling a single joint to a fellow student; the purchaser paid fines and costs but received no criminal record..

The current drug problem in the county, state and nation is, of course, opioids. Most people charged with distribution of these very dangerous drugs are themselves addicts, trying to make enough money to feed a costly habit. As Representative William "Smitty" Pignatelli, D-Lenox, put it , "When it comes to addicts, many need treatment, not jail" (State House News Service, Eagle, November 7).

Such thinking underscores state lawmakers' recent efforts. Ideally, the commonwealth would get rid of all mandatory sentences for non-violent drug offenses. Neither the House nor the Senate goes that far. While both bills do away with many of these minimum sentences, the House — well aware of the political tightrope members walk in the midst of an opioid epidemic — "drew the line" at eliminating them for drug traffickers. The Senate would eliminate them for those convicted of trafficking less than 100 grams of cocaine. The House bill also maintains harsh penalties for traffickers of carfentanil, a deadly synthetic opioid.

Additionally, among the changes being pushed, both the House and Senate are seeking to create a process to seal and expunge some juvenile criminal records; the Senate wants to raise the age of criminal responsibility from 18 to 19; and the House bill supports diversion programs to keep mostly first-time, youthful offenders from being locked up.

Together, the efforts of both chambers are heading in the right direction. No surprise, nine of the state's 11 district attorneys have criticized the Senate legislation. District attorneys like the extra power that minimum mandatory sentencing gives; indeed, it can be a helpful tool to convince reluctant defendants to cooperate in larger investigations. But with all due respect to the DAs, the opioid crisis demands an "all of the above" approach to solutions, and that necessarily includes giving judges more discretion and flexibility in fashioning dispositions. Few studies have found a link between mandatory sentencing and public safety. Meanwhile, 29 states have already curtailed mandatory sentences, which has saved millions of dollars in prison expenses while crime rates continued to drop.

This is also what the citizens want. A poll earlier this year by the affiliated MassINC Polling Group found that Massachusetts respondents strongly favor judicial discretion over mandatory minimum sentencing.

The efforts by the Senate and House thus far represent historic but measured reform. It's been a long time coming.


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