Is The Moment Right For Comprehensive Mandatory-Minimum Reform?

This week, in her Let the Record Show blog, BBA President Julia Huston talks about a visit to a Dorchester session of Drug Court, which deals with offenders whose problems stem from substance abuse.  Below, Issue Spot takes a look at sentencing policies that address offenders who are convicted of drug offenses – specifically, those that trigger mandatory minimum sentences.

Over the past decade or so, a large and growing number of states, many of them “red”, have rolled back mandatory minimums – which are in many instances an artifact of the “tough on crime” approach that gained favor in the 1990s.  With budgets stretched and prisons overflowing – and with violent-crime rates down dramatically – states have found savings through mandatory-minimum reform and other changes to sentencing and incarceration policies, in some cases reallocating those savings toward more effective criminal-justice measures.

Massachusetts has made some recent changes around the edges but has been slower to embrace the kind of wholesale move away from mandatory minimums that the BBA (among many others) has long endorsed.  With the start of a new year and a new legislative session, however, that may be changing, as a review of some of the key players in this debate shows:

Former Governor Deval Patrick

In both 2010 and 2012, the outgoing Governor signed landmark legislation that reduced mandatory minimums for a host of non-violent drug offenses.  Yet as he left office, he told reporters that not having been able to go further was one of his biggest regrets.  In one of his last acts in this area, he reconstituted the state’s Sentencing Commission, which is charged with “developing systematic sentencing guidelines.”  The Commission has also been gathering extensive data on sentencing, which can be used as the basis for discussion of any changes to sentencing laws.

Governor Charlie Baker

As a candidate, Governor Baker told Families Against Mandatory Minimums (FAMM) that he would oppose extending mandatories or expanding them to additional crimes.  He went on to express his support for their repeal for drug offenses, adding, “I believe reforming minimum sentences could be part of an overall strategy to rethink how those with substance abuse issues are treated.”

Someone with Governor Baker’s background and reputation as a number-cruncher both inside government (as Governor Bill Weld’s chief budget-maker) and in the private sector (as CEO of Harvard Pilgrim Health Care) – may well appreciate the savings that can be achieved by keeping more people out of prison (such as through Drug Courts), by reducing sentences for those who do go to prison, and by improving the recidivism rate through evidence-based re-entry programs.  His selection of a Secretary of Public Safety — one of only two seats in his Cabinet yet to be filled — may send a key signal as to whether this will be a priority for Governor Baker.

Attorney General Maura Healey

During last year’s campaign, the new attorney general was quite vocal about her opposition to mandatory minimums.  She posted her plans for comprehensive criminal justice reform on-line, including an end to mandatories for non-violent drug crimes and expansion of Drug Court (and Mental-Health Court).  As the state’s chief law-enforcement officer, she will have a critical voice in this debate.

Senate President Stanley Rosenberg

A longtime champion of sentencing reform, the new Senate President looks to continue his commitment to this issue.  In his first speech as Senate President, he called for a “tough and smart” criminal justice system.  He also voiced concerns about high incarceration rates for those suffering from mental health and drug addiction problems, noting that Massachusetts lagged behind other states in this area.  Though he did not specifically commit to examining mandatory minimum sentences, Rosenberg, a former member of the Criminal Justice Commission (see below), is well-informed on the issue.

House Speaker Robert De Leo

The only returning leader on Beacon Hill, the Speaker has also been the quietest on sentencing policy.  He has shepherded through two rounds of mandatory-minimum reform — in each case as part of broader criminal-justice reform (CORI reform in 2010 and expansion of the “three strikes” law in 2012).

There are numerous members of the Speaker’s caucus who oppose significant reductions in mandatories, but under the leadership of Rep. Tom Sannicandro and Sen. Jamie Eldridge, a new bipartisan (and bicameral) “harm reduction” caucus – boasting more than 60 members from both houses – has come together to support broad reforms on criminal-justice policies affecting drug offenses.  They are expected to file a bill next week that would repeal most, if not all, existing mandatories for drug crimes.

Chief Justice Gants

The state’s highest-ranking judge and one of the leaders of the judicial branch made his position clear in his “State of the Judiciary” speech this past October, asking every trial court department with criminal jurisdiction to convene a working group to ensure that all sentences are individualized and evidence-based.  He went on to describe the disparate impact mandatory minimum sentences have on racial and ethnic minorities and said, “We need our sentences not merely to punish and deter, but also to provide offenders with the supervision and the tools they will need to maximize the chance of success upon release and minimize the likelihood of recidivism.”  He has made those feelings known in other forums as well and clearly intends this to be one of his top priorities during the new legislative session, as he seeks to build relationships with the leaders — most of them, like him, new to their positions — of the other two branches of government.

Criminal Justice Commission

This standing commission, first created in the FY12 state budget, has been operating mostly under the radar for more than three years, under the leadership of two different Secretaries of Public Safety.  Made up of dozens of members representing stakeholders such as prosecutors, defense attorneys, the Attorney General, the sheriffs, the Department of Mental Health, and the Department of Youth Services (to name just a few), the panel includes Marty Murphy as its BBA representative.  They have been meeting monthly and deliberating over no less broad a range of issues — from pre-trial diversion to security classifications for prisoners to measurement of recidivism — but with the Patrick Administration coming to a close, they proceeded to votes on three key recommendations late last year, including one to remove mandatory minimums for all drug offenses.

Others

Though they by no means speak with one voice on sentencing, the state’s 14 sheriffs — who operate the county jails where inmates serving shorter sentences are housed — are at the front lines of the incarceration crisis.  Several have spoken out on the need to rein in mandatory minimums.

We know these individuals are certainly not alone in their stance. In fact, there is strong polling evidence that the most important constituency of all, the public, has shifted its views, with solid majorities now favoring judicial discretion over mandatory sentences and prevention and rehabilitation over enforcement and punishment.

Many others share their concerns about mass incarceration and the unfairness of mandatory minimum sentencing.  We look forward to working with all of the above stakeholders, and any others interested in improving the criminal justice system by eliminating mandatory minimums, and we will do our best to keep you updated on our progress.

— Michael Avitzur
Government Relations Director
Boston Bar Association