Following Up on Some Issues

(A few developments on three posts from earlier this year: Baker’s welfare policy, Mass Fiscal’s disclosure policy, the SJC’s ruling on mandatory minimum sentences.)

Back in June, Governor Baker sought unsuccessfully to reduce state welfare payments to families in which a disabled family member was receiving federal disability payments. Under Baker’s plan, as the Herald reported, the state would no longer pay $400 per month to a grandmother who’s caring full time for her 13-year-old granddaughter who cannot walk or talk because of the cerebral palsy that she has had since birth. The cutoff of state funds Baker proposed would have left the family of two to survive on the $750 per month in federal disability payments the granddaughter receives.  The Legislature told the Governor no.

In August, the Supreme Court of New Hampshire struck down a welfare eligibility restriction in that state very similar to the rule Governor Baker wanted Massachusetts to adopt. The federal disability payments, the court ruled, were intended as specific assistance to persons with disabilities and were not intended to be available for the family’s general living expenses. One hopes that if the Legislature’s rejection of Baker’s proposal does not deter him from introducing it again, the New Hampshire Supreme Court decision will.


In August, after the Legislature passed a law requiring organizations that use direct mail for their electioneering to disclose the names of their five largest donors, just as organizations that use paid television, internet and print advertising must do, the Massachusetts Fiscal Alliance, purveyor of preposterous allegations about the voting records of its opponents, was left with a choice — either divulge the names of its five biggest donors, or curtail its electioneering.  They recently announced that they would keep their donors’ names secret, which means that their direct mail efforts this election season will not be indulging in their usual farcical claims but will merely encourage recipients to visit their website.  In an effort to portray this decision as a victory, Mass. Fiscal commented that it never wanted to become dull:  “We are always looking at ways to improve our effectiveness in communicating with the voters.”


In April, the Supreme Judicial Court heard arguments in a District Attorney’s appeal of a case in which the trial judge declined to impose the statutory minimum mandatory prison sentence for drug distribution on a disabled black man who had been convicted of possessing an amount of drugs weighing less than a five-gram packet of sugar.

Earlier this month, the court issued an opinion reversing the trial judge and ordering that the minimum mandatory sentence (3 1/2 years instead of the 2 1/2 years the trial judge ordered)  be imposed. But in that decision, the Court also sent a message to the Legislature that arguments about the unconstitutionality of mandatory minimums, such as the strong evidence of their racially discriminatory application during the twenty years that they have been on the books, might be appropriate for the court to consider in future cases.

Are the Days of Mandatory Minimum Sentences for Drug Crimes Nearly Over?

On Tuesday the state’s Supreme Judicial Court will hear an appeal by the Middlesex District Attorney’s office challenging a trial judge’s decision to depart from the mandatory minimum sentence set by statute for a drug crime and to impose a shorter sentence instead.

The District Attorney, citing the SJC’s decision in a 1995 case, argues that where a statute imposes a mandatory minimum sentence, judges have absolutely no discretion to lower that sentence, and therefore the trial judge in this case improperly reduced the sentence imposed on the defendant, Imran Laltaprasad, from 3 1/2 years to 2 1/2 years. (Laltaprasad was convicted of possessing less than 5 grams of heroin and cocaine. He was carrying the drugs in his prosthetic leg, the result of a violent assault for which his attackers received 2-year sentences.)  Unless and until the Legislature amends current laws imposing mandatory minimum sentences, the D.A. argues, judges must adhere to those laws, which were enacted in 1980, during the earliest days of the war on drugs.

Ah yes, the war on drugs — file under “seemed like a good idea at the time.” It was the cornerstone of Governor Ed King’s plan to make Massachusetts a safer place, regardless of how much money we might need to spend building prisons.

Thirty-six years later, things look different. And what  we know now that we didn’t know (but may have suspected) back then forms the basis of many of the arguments Mr. Laltaprasad’s attorneys are making to affirm the trial judge’s decision reducing the sentence in his case.

We know that mandatory minimum sentences are applied in a racially discriminatory manner (and Mr. Laltaprasad is a member of a racial minority, who comprise three-quarters of the persons on whom mandatory minimum sentences are imposed).

We also know that in cases involving mandatory minimum sentences, it is the prosecutor rather than the judge who decides on the sentence (in this case, the D.A.’s office elected to charge Mr. Laltaprasad with a “second or subsequent” offense, for which the mandatory minimum is 3  1/2 years).

We also know that drug addition is a chronic, relapsing brain disease for which incarceration is an inappropriate and ineffective remedy.

Together, these arguments raise important federal and state constitutional questions concerning equal protection, cruel and unusual punishment, and the separation of powers, as the briefs filed Mr. Laltaprasad’s attorneys as well as by friends of the court argue.

The Middlesex D.A.’s office responded to these arguments not by rebutting them, but by moving to strike those parts of the record supplying their evidentiary support. In opposing the D.A.’s motion to strike, Mr. Laltaprasad’s attorneys cited a rather well-known U.S. Supreme Court decision:  it “is regrettable that the Commonwealth’s only response to this data is to ask that it be ignored…Perhaps at some point in the history of American jurisprudence it was common for courts to overlook data showing the crippling effects of unconstitutional laws.  But that time has long passed.  See Brown v. Board of Education of Topeka, 347 U.S. 483, 493-95 & n.11 (1954).”


The Laltaprasad case is the fourth on Tuesday’s docket, which means it will be heard around 10:30.  You can watch the argument here.


The Supreme Judicial Court Nomination Factoids You’ve Been Waiting For

[Update, February 5: Justice Spina, who turns 70 this October, announced today that he will also retire in August. Because the Court’s term runs from September to August, this will likely make for a smoother transition.] 

On Wednesday, Supreme Judicial Court Justice Robert Cordy announced that he will retire in August. This means that Governor Baker will be appointing a majority of the members of the SJC — and pretty soon. Later this year, Justice Francis Spina turns 70, and under a state constitutional amendment approved by the voters in 1972, must retire.  Justices Margot Botsford and Geraldine Hines reach the retirement age of 70 in 2017.  That’s a majority.

Here are some SJC nomination factoids.  Use them to amaze your friends.

Since the 1972 state constitutional amendment took effect 44 years ago, two other Governors besides Baker have had the opportunity to appoint an SJC majority: Governors Cellucci and Patrick.  Soon Baker will join them and will beat their times by several years.

Since 1972, every Governor but two got to make a couple SJC appointments: Jane Swift and Mitt Romney didn’t get to make any.

When asked yesterday for names of SJC role models, Baker named Justices Spina and Cordy, which makes sense — they are the two current SJC Justices who were nominated by Republican governor Cellucci.  But as it happens, Governor Cellucci, along with Governor Weld, launched the judicial careers of four of the five other SJC Justices, all of whom were elevated to the SJC by Deval Patrick: Governor Weld appointed Ralph Gants and Barbara Lenk to the Superior Court and Fernande Duffly to the Probate and Family Court in the 1990’s. Governor Paul Cellucci appointed Geraldine Hines to the Superior Court in 2001. Bipartisanship reigns.

The constitutional amendment that mandates retirement at age 70 was approved by the voters three-to-one in 1972. Some of those voters were 26 then, now they’re 70. Life expectancy then was 71.2 years, now it’s 78.7. There’s a constitutional amendment before the Legislature this session that would raise the retirement age to 76, but the Judiciary Committee has given it an unfavorable report.

Judges in other states where a mandatory retirement age applies have sued their states, arguing that such laws discriminate against them on the basis of age in violation of their constitutional rights.  No success so far.