Mandatory Minimum Jail Time In Drug Cases: Time For The Thirty Years’ War To Be Over

Fingers crossed, but it’s looking like the Legislature might be ready to think again about the wisdom (or folly) of the statutes it passed thirty-some years ago that require jail time of at least some minimum duration in drug cases.

Promising signs that reconsideration is underway: a special commission established in 2012 to study the state’s criminal justice system reported back in November with a recommendation that the Legislature eliminate mandatory minimum sentences for all drug offenses in Massachusetts. The Chief Justice of the state’s Supreme Judicial Court announced that the court system will be taking “a hard and honest look at how we sentence those convicted of crimes, with the goal of not only punishing and deterring criminal behavior, but also lowering recidivism by “treating the root of the problem behind many drug offenses — the problem of addiction.” And there’s always the bean-counter argument against mandatory minimums: the cost of housing an inmate now tops $47,000 per year.

The most encouraging signal may be coming from the our new Governor. Charlie Baker has said that he supports “repeal of mandatory minimum sentences as part of an overall strategy to rethink how those with substance abuse issues are treated.”

Baker’s support gives a Nixon-goes-to-China boost to the proposal that other Governors could not have provided. That’s because Charlie Baker was a key figure in the administration of Governor Bill Weld two decades ago. At that time, Weld was the state’s most resolute defender of mandatory incarceration laws. Even after a Globe spotlight series in 1995 demonstrated that most of the people sentenced under those laws were not the rich kingpins but lower level mules, first-time offenders and those too poor to have anything to offer in a plea bargain, and after it was pointed out that enforcement of the laws disproportionately affected racial minorities, he remained unmoved. “You hear the argument that mandatory minimums interfere with judges’ discretion. I say, ‘So what?'” he told the Massachusetts Police Association. So it helps to have the person whom Weld called the “soul” of his administration in the Corner Office now.

Not everybody was as enthusiastic as Governor Weld about mandatory minimum sentences back then. House Speaker Charlie Flaherty, for one, doubted their value. In 1995, Flaherty tried to capitalize on an opportunity for leverage that arose when Governor Weld requested $700 million from the legislature to build more jail cells (where are you going to put all those people serving mandatory minimums for drug crimes?). The House voted to give the Governor some of the money he was asking for, but only on the condition that state law be amended to give judges the discretion not to impose mandatory minimum jail sentences in drug cases if they stated in their reasons in writing. But, alas, the opportunity was lost when the Senate, siding with Weld, did not agree to restore discretion in sentencing to the judiciary.

So years later, yes, it’s great news that the topic of mandatory minimum sentences is up for discussion again. But it is hard not to think about what’s been lost while this ill-considered policy has been state law.

We’ve spent so much of money incarcerating people. A MassInc study estimates the cost at $35 to $90 million per year — money that was not available for other purposes. With policies like mandatory minimum sentences in place, it is hardly surprising that we spend 21 percent less on higher education these days than we spend on jails. Then there are collateral costs: former inmates have a harder time finding jobs, incarceration leads to higher rates of divorce, kids with parents in jail are more likely to enter the child welfare system. And grave issues of racial equity: the Supreme Judicial Court reports that in the most recent year of available data, 450 defendants received mandatory minimum sentences for drug offenses and three-quarters of those 450 defendants were members of racial and ethnic minorities.

Much has been lost. But we can stop the losses by calling an end to this disastrous thirty years’ war.

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