No exit

Though a recent report found otherwise, reform advocates argue that mandatory sentencing is crowding Massachusetts prisons with small-time drug offenders

by Sarah McNaught

Charlotte has never hurt anyone but herself. Yet her battle-scarred face and arms betray a long history of abuse by others.

Born in a small suburb of Philadelphia, Charlotte ran away to Boston in 1984, when she was 16 and trying to "escape from a living hell." Her parents fought constantly, she says, and often took their frustrations out on her. As her father bounced from job to job and her mother entertained men in their modest two-bedroom apartment, she was left to raise her two younger siblings. When Charlotte was 15, her father was sent to prison for stealing from an employer, and her mother willingly gave up custody of the kids to the state.

"I was in and out of five foster homes in nine months, and I wasn't allowed to see my brother or sister," she says. "So I ran away."

Charlotte wasn't long in Boston before she got swept up in the Combat Zone "scene." Within months she had a "boyfriend" who rented her out by the hour and supplied her with cocaine that kept her addicted and subservient.

"He wanted me to break into houses and cars for him, but I was so nervous he was afraid I would blow it," she explains. "So my job was to have sex with guys and bring them drugs."

Aside from being picked up for loitering in early 1990, Charlotte had no criminal record until 1996, when she was sent to what she now knows was a crack house just outside Mattapan Square to pick up a package containing several $50 bags, or "halves," of cocaine. Caught about a block from the house and half a block from a local school, she was sentenced to five years for possession with attempt to distribute within a school zone -- the mandatory sentence for her offense in Massachusetts.

"What really pisses me off is that no one else in that house got busted and that place was full of drugs -- weed, coke, heroin, and even mesc," says Charlotte indignantly. "I'm not saying what I did was right, but do you really think I deserve half a decade when there are people in here who have beaten down people with shit like bats and knives and they're out of here in two or three years?"

Situations like Charlotte's illustrate why reform advocates say mandatory minimums are unfair and unproductive. They argue that cookie-cutter sentences are filling jails with nonviolent and first-time offenders, destroying the lives of people who are far from being hardened criminals and contributing to a prison-overcrowding crisis that is returning truly dangerous individuals to the streets.

Two recent developments in particular have activists up in arms: the tabling two years in a row of a reform proposal and the release of a new prison-sentencing report in June by the Massachusetts Institute for a New Commonwealth (MassINC), a moderate think tank. Although the report concluded that the state's approach to sentencing could be improved, especially by doing more to prepare prisoners for their return to society, it found that mandatory minimums are not responsible for prison overcrowding and are not, on the whole, targeting people who don't deserve long sentences.

Members of national groups such as Families Against Mandatory Minimums (FAMM) and local organizations like the Criminal Justice Policy Coalition agree with MassINC's recommendation that pre-release programs, good-behavior credits, and similar incentives be made available to those serving mandatory sentences, who are now required to serve their entire sentences behind prison walls. But they question the sources and accuracy of the report's statistics.

"There are a number of conflicting studies out there that contradict MassINC's conclusion that those sentenced under the mandatory-minimum guidelines got what they deserved," says Steve Saloom, executive director of the Criminal Justice Policy Coalition, which supports reform of the state's criminal-justice system.

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Mandatory sentencing first came to Massachusetts in the '70s and became more systematic with the Truth in Sentencing Act of 1993. The act set standard minimum sentences for specific offenses related to drugs, drunk driving, and guns; eliminated early release for good behavior; and set parole eligibility at the full minimum sentence.

But just how many people have been affected by these policies is a controversial question. As of January 1, 1998, there were 12,119 inmates in state facilities in Massachusetts and another 12,000 in county jails, according to the 1998 annual report of the state Department of Corrections (DOC). The number of incarcerations in Massachusetts has increased 432 percent in the past 10 years, according to the federal Bureau of Justice Statistics, and some activists argue that mandatory sentencing accounts for virtually all of that increase. These reformers say the current prison-overcrowding crisis is a direct result of mandatory minimums, especially for minor drug offenders.

The MassINC report, however, states that people serving mandatory-minimum sentences for drug offenses make up 17 percent of the inmates in DOC jurisdiction, a significant but not overwhelming percentage. The reports adds that "if every one of the 1,851 mandatory-minimum offenders were released tomorrow, DOC's population would still be 1000 inmates above current capacity."

But Nancy Brown, coordinator for the New England chapter of FAMM, complains that MassINC's data are "based on averages and a segmented analysis of the entire prison population." For example, she points out that the report is mostly limited to figures for state prisons. "Looking at state statistics without factoring in complete county numbers skews the numbers," she says. "That's 12,000 inmates who are not being considered in the study."

Brown also complains that the MassINC report excludes women, who have been hit especially hard by mandatory sentencing. Whereas 20 percent of male inmates are in on drug offenses, according to MassINC, the federal Bureau of Justice Statistics reports that a full two-thirds of female inmates in Massachusetts state prisons are incarcerated for drug offenses. Critics say that many of these women are young, nonviolent first-time offenders who merely carried drugs for men -- and that mandatory sentencing often leaves them in jail longer than those male leaders, who are encouraged by prosecutors to cut plea-bargain deals by informing on their associates. When that happens, women are often the first to be given up.

Robert Keough, the author of the MassINC report, acknowledges the limited focus. "The male and female prison population are so different that the females either become a footnote to the report or you combine the entire male and female population, which skews the numbers," he says. The effect of mandatory minimums on female prisoners is well worth looking into, he adds, especially because the jails have grown so short on space for women that the DOC "is avidly looking to build a new female facility." But he says that MassINC did not have the time or resources to do the necessary research.

As for the question of inmates in county jails, Keough notes that the report did include statistics on Suffolk County. Still, he says, gathering comprehensive data on county facilities is almost impossible because statistics are kept by each individual prison.

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Whether or not mandatory sentencing is to blame for prison overcrowding, activists have long argued that the policies irrationally target minor criminals. The Boston Globe, citing DOC statistics, reported in November 1998 that more than 84 percent of those serving mandatory-minimum sentences for drug charges in Massachusetts were first-time offenders.

MassINC disputes those findings, arguing that those figures reported only offenders who hadn't served time in state prison. In 1995, the report states, "44 percent of DOC inmates whose histories were known had a previous incarceration in a county House of Correction, 19 percent in a state or federal prison." A footnote, however, admits that the record of past incarcerations for nearly one-third of the 1995 prison population was "not available."

Keough admits that "the data available are not good," but he says that he used the best figures he could find. Yet Frank Carney of the Massachusetts Sentencing Commission, which was established by the Truth in Sentencing Act to establish more-rational sentencing guidelines, warns that using incomplete statistics from nearly five years ago is asking for inaccuracy.

"The state of our prison system has undergone major changes in policy and population over the past decade," Carney says. He believes the report did not capture the real trends in today's prison system because it relied too heavily on old numbers.

Besides, says Steve Saloom, it's not uncommon for a person to rack up multiple offenses for a single incident. "When you look at someone's rap sheet and see a number of so-called priors, you have to keep in mind that all those charges may apply to a single arrest and not necessarily a history of criminal activity," he says.

That's what happened to "Peter," a Dorchester resident recently released after a mandatory-minimum sentence of four years on a charge of drug possession and intent to distribute within a school zone. Peter says his prior arrests were taken into consideration during his trial.

"At first glance it looked like I had a long rap sheet, but the truth is I was arrested twice as a teenager and hit with multiple offenses," Peter says.

When he was 19, he recalls, Dorchester Park was raided while he and his friends were hanging out there. Peter says he wasn't really worried: "After all, we were just sitting in the park, playing hacky sack and drinking a few beers." But he was charged with trespassing, loitering, drinking in public, underage drinking, possession of marijuana in a school zone (he claims he didn't have any but his friend did), and obstructing justice.

"I saw the flashlights and did what any kid would have done -- I ran," says Peter. "But in court they described it like I attacked police." He admits that he had marijuana on him when he was arrested the last time. "I'm not saying it's right," he says, "but I don't think I am a hardened criminal or a repeat offender with a long criminal history."

Peter is now attending an outpatient drug-rehabilitation program. "I was ordered there," he says. "I got out of jail and wanted to stay clean."

MassINC and reform advocates agree that more prisoners would be likely to stay clean if they were allowed good-time reductions for participating in drug-treatment and other programs while in jail. MassINC also argues that allowing drug offenders to participate in work-release, pre-release, and parole programs would give them tools to straighten out their lives.

But reform faces daunting political obstacles. The Massachusetts Sentencing Commission, for example, has seen its recommendations languish in the state legislature ever since it made its report in April 1996. The commission proposed standards that would increase prison terms for violent crimes committed by repeat offenders while promoting intermediate sanctions for others. It suggested the judges be given discretion to depart from mandatory minimums.

Prosecutors, however, are wary of such ideas. The state district attorneys' offices drafted their own revisions of the mandatory-minimum sentencing laws and submitted them to the Criminal Justice Committee last year. The committee is expected to draft its own proposal, combining both groups' suggestions, next year.

In the meantime, reformers say, minor offenders remain behind bars, taking up room that should be used to house more-violent criminals.

"I don't consider myself a dangerous person. And there are other women in here doing time for drugs who never even used drugs," says Charlotte. "Imagine this: some guy pimps you out, beats you down, and uses you as a human drug transport. And, when you get caught, he walks away and you become a convict. That just ain't right."