Posts Tagged: drug lab

Sentences on Sentences: Reform and Dookhan Update

It was a week for sentencing discussions at the BBA.  First, an update on the Dookhan drug lab scandal, an issue we’ve spoken on a number of times (see past posts: Drug Lab Crisis Points to Larger Issues in the Criminal Justice System, Getting it Right: A Bargain at Any Price, Catching Up: Have  You Heard?), especially through the work of our Drug Lab Crisis Task Force.  The Task Force examined the facts regarding the lab crisis and related matters and released their report in early 2014, just months after chemist Annie Dookhan pled guilty to 27 counts of misleading investigators, filing false reports, and tampering with evidence for her deliberate mishandling of evidence in the Hinton drug lab.

Our Task Force made three recommendations:

  • Prosecutors, defense counsel, judges, and policy makers should continue the extraordinary joint efforts that were mounted in the aftermath of the Dookhan misconduct to promptly resolve open criminal cases related to Dookhan’s misconduct.
  • The Commonwealth needs to further enhance the auditing and oversight of drug labs and consider similar steps regarding all forensic services.
  • The Governor and Legislature ought to review funding levels for forensic services to ensure that these services are adequately funded and staffed and that effective auditing and oversight is maintained.

On Monday, in keeping with our report’s first recommendation above, the SJC held in Bridgeman v. District Attorney for the Suffolk District that individuals who pled guilty in cases with evidence that was affected by the Dookhan scandal cannot be charged with a more serious offense, nor can they receive a harsher sentence than they were originally given, if they are granted a new trial.  According to the Globe, the holding was celebrated by the defense bar and civil libertarians, but was a source of concern for prosecutors, as “ ‘convicted defendants now have nothing to lose by withdrawing their evidence-based admissions of guilt.’ ” We will continue to monitor developments related to this situation and ongoing litigation.

Shortly after learning of this decision, we were pleased to welcome Chief Judge Patti Saris of the U.S. District Court, District of Massachusetts to our Council meeting.  Having previously worked for U.S. Senator Ted Kennedy, and as a Magistrate and Massachusetts Superior Court Judge before her nomination to U.S. District Court, Judge Saris spoke with a wealth of knowledge about sentencing issues from both legislative and judicial perspectives and with state and federal experience.

In addition, she chairs the U.S. Sentencing Commission (“Commission”), an independent agency in the federal judicial branch established in 1984 and tasked with establishing sentencing guidelines and practices for federal courts, advising and assisting Congress and the executive branch in developing effective and efficient criminal policy, and collecting, analyzing, researching, and disseminating a broad array of information on crime and sentencing issues to all branches of government, academia, and the general public.  It is bipartisan by design in order to consider all viewpoints and to effectively gain buy-in from all legislators.

The Commission was a driving force behind the 2010 Fair Sentencing Act, which made a number of reforms to federal sentences for drug offenses, most notably reducing the disparity between sentences involving crack versus those involving powder cocaine.  When preparing this bill, the Commission examined mandatory minimum sentences and found that they were mostly affecting small-time criminals – drug couriers and street dealers — not the drug kingpins that Congress intended to target.  Other considerations, such as the expense of prisons and the exceedingly high rate of incarceration in the United States, also led to those reforms.

As a result the bill reduced sentence lengths, up to 20-25% for some offenses.  It also had a built-in one-year delay until its effective date, so probation offices could increase their staffs, because shorter sentences are most effective at reducing recidivism when prisoners are released into a system of support and monitoring.

Since the Act’s enactment, the Commission has studied outcomes, finding that the recidivism rate is no higher for people released from prison up to two years earlier than they would have been under the old sentencing regime.  In addition, they found that the rate of guilty pleas and cooperation with plea agreements remained the same, meaning shorter sentences did not have a negative effect on prosecutorial bargaining power or result in more trials.  In all, the Commission’s process and the bill’s provisions have been a clear success.

Chief Judge Saris also told the Council about three major sentencing reform bills gaining traction with Congress.

  • The Smarter Sentencing Act of 2015 would further reduce mandatory minimums and its reductions would also have retroactive effect. In addition, it would provide a safety valve for low-level, non-violent offenders who admit to their role in crimes, lifting the mandatory minimum sentence in favor of judicial discretion.
  • The Corrections Oversight Recidivism Reduction and Eliminating Costs for Taxpayers in Our National System (CORRECTIONS) Act creates a system similar to a parole board, permitting the bureau of prisons to return to the sentencing judge and ask for a reduction in sentence length. The idea is to give a second chance to people who have reformed in prison and, as a result, save money by shortening their sentences.  The bill has already passed the Senate Judiciary Committee, yet there are some concerns about the risk assessment tool it uses to determine which prisoners are best suited for sentence reductions.  The tool relies heavily on socioeconomic factors such as whether the prisoner is educated or has a home or supportive family.  It also puts a lot of pressure on judges, who have the final say (and potentially blame) as to who qualifies for a sentence reduction.
  • The Justice Safety Valve Act of 2015 retains mandatory minimum sentences, but gives judges the freedom to stray from the mandatory terms if they find strong mitigating factors.

These bills provide legislators with different options for sentencing reform.  Not everyone is opposed to mandatory minimum sentences.  Many support the uniformity they provide.  However, there appears to be consensus that reform is necessary because current mandatory minimum sentences are too long and applied too broadly.

Underlying this debate are concerns about recidivism and new evidence that longer prison sentences may actually be detrimental to a person’s ability to re-enter society and avoid future criminal activity.  Some states are working on diversion programs, giving people who have committed serious crimes, but who don’t have major records, the ability to take part in lengthy probation terms.  If they successfully complete all of the tasks required of them, these individuals can have their records wiped clean.

In addition, collateral consequences play a role in recidivism discussions.  These include limits on securing housing and jobs, as well as other obstacles that prisoners face upon their release.  There is an increasing understanding that these collateral consequences may be so harsh that they prevent people from successfully re-entering society.  Addressing these problems may become a focus of future bills.

In all, we learned a lot about sentencing this week, from an update on the Dookhan case to a Council presentation by Chief Judge Saris on federal legislation.  We at the BBA continue to oppose mandatory minimum sentences and advocate for sensible, cost-effective reforms.  We are committed to monitoring reforms in this area and keeping our members informed of any progress.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association

Expanding the Forensic Sciences Advisory Board is a Step in the Right Direction

The breadth and depth of the fallout from the state drug lab crisis won’t be known for years. By most accounts this is the biggest crisis our justice system has ever faced. The review process, expeditiously put in place by Governor Patrick, has been encouraging. So far there’s been transparency and cooperation as stakeholders work towards ensuring that justice is done in all cases.  Investigations into the what, why, how, and when are ongoing.  Special court sessions are underway, and Governor Patrick plans to file a supplemental budget request with the Legislature next week for funding to cover the expenses associated with the drug lab crisis.

It’s impossible to conjecture what the price tag is going to be for sifting through years of drug cases, hearing them in court and then putting appropriate reentry programs in place to ensure public safety. Mayor Menino requested $15 million from the Patrick administration to cover the potential flood of inmates who may be released – and that’s just for the City of Boston.

House Judiciary Chairman O’Flaherty has said that as a result of the drug lab crisis, new legislation may have to be filed to prevent the crisis from being repeated. A good place to start is S 1204, An Act Relative to the Forensic Sciences Advisory Board – a companion to the BBA’s DNA access bill passed earlier this.  The BBA filed this companion bill in 2011 and we plan to re-file an updated version of it next session.

This legislation would expand the composition of the Massachusetts Forensic Science Advisory Board (FSAB) to include members of the defense bar and scientists. You read that correctly – the Forensic Sciences Advisory Board does not have any forensic scientists. The current membership of the FSAB, as determined by Chapter 6 Sec. 184A, really only reflects one side of the criminal law spectrum. Members include the Undersecretary of Forensic Sciences and Technology, the Attorney General, the State Police Colonel, the President of the MA Chiefs of Police Association, the President of the MA Urban Chiefs Association, the President of the MA District Attorney’s Association (MDAA), a district attorney designated by MDAA and the Commissioner of Public Health or their designees.

Taking a giant step back from what actually happened at the state drug lab, it’s unbelievable how much havoc a single person can wreak on our system of justice.  Surely, the criminality of this one person is egregious, but this may actually point to a more fundamental problem in the entire justice system – inadequate resources.  Decades of underfunding our courts, district attorneys’ offices, crime labs, public defense counsel offices and civil legal service organizations has contributed to an overburdened system where everyone is struggling to find efficiencies, do more with less and provide every single person equal access to justice. One of the most unsettling results of the drug lab crisis is that it exposes  a broader potential flaw – that there may be other areas in our justice system that are just as vulnerable due to inadequate resources.

Regardless of the financial cost or reform measures that are put into place, the damage has already been done to the integrity of Massachusetts’ justice system. The premise of that system – that everyone has equal access to justice and that justice is carried out in a fair and timely manner – has been shaken. As the next few weeks and months unfold and we learn more about what happened at the state crime lab, we need to use this crisis as an opportunity for change.

– Kathleen Joyce
Director of Government Relations
Boston Bar Association

Drug Lab Crisis Points to Larger Issues in the Criminal Justice System

We are still just scratching the surface from the fallout resulting from the mishandling of evidence in alleged drug cases at the crime lab in Jamaica Plain. At the very least, the crisis we’re now facing underscores the importance of strict protocols and controls in every aspect of our criminal justice system.

The massive effort to right the wrongs caused by what happened at the state drug lab is already underway.  To his credit, Governor Patrick swiftly put together a central office to oversee the review of criminal cases potentially jeopardized by the mishandling of evidence.  The office, headed by David Meier, worked throughout the weekend to identify cases where Annie Dookhan, the state chemist in question, performed primary or secondary tests.  By Monday the estimate was that more than 1,100 individuals currently serving sentences in state or county houses of correction were affected.  This number does not include individuals in federal custody, those awaiting trial, those on probation or parole, those who were previously convicted and served time, or those otherwise punished.

In the last few days, a handful of defendants has already been released from prison or had their sentences suspended.  It’s expected that in the coming weeks there will be an onslaught of people who will be released from jail or face significantly lesser charges.

Calls are coming into the BBA’s Lawyer Referral Service on behalf of people imprisoned in drug cases.  The Committee for Public Counsel Services has created a specific office to deal with the influx of cases.  More information from CPCS can be obtained by calling their main number, (617) 482-6212.

What’s happening in Massachusetts is unprecedented because of the magnitude of the number of cases potentially impacted.  However, this isn’t the first time that state drug or crime labs have had to be shut done because of mishandling of evidence.  In 2008, the Michigan State Police shut down the Detroit Police crime laboratory because of a history of mishandling evidence.  In 2009, a San Francisco lab technician, who is currently facing federal charges, was accused of stealing cocaine from the facility and a total of 1,400 cases were reviewed.  More recently in Nassau County, New York, the state crime lab acknowledged mismatching reports on blood-alcohol tests, as well as possible contamination of drug evidence.  The local district attorney worked with the Nassau County Bar Association to help inform inmates whether their cases were impacted.  As many as 9,000 drug cases were reviewed.

It’s way too soon to assess what the impact will be on our justice system. But the scandal spotlights another important BBA public policy issue – the need to abolish mandatory minimum sentences.  Currently, Massachusetts has a one-size-fits-all system of sentencing for drug crimes. Sentences are often disproportionate to the seriousness of the crime or the risk to the public.

With few exceptions, Massachusetts’ drug-sentencing laws are based on the weight of drugs involved, rather than what a defendant actually did.

This crisis is putting our criminal justice system to the test.  While David Meier’s central office continues to work around the clock to identify those affected by what happened, it will be the justice system that determines whether or not we get it right.

-Kathleen Joyce
Government Relations Director
Boston Bar Association