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Cash-strapped state legislators are finally considering relaxing mandatory drug sentences. Will budget woes succeed where appeals to justice have failed?
BY KRISTEN LOMBARDI

AFTER MORE THAN a decade of tough-on-crime policies — fueled by 13 years of Republican administrations committed to re-introducing prisoners to the joys of lethal injection — the law-and-order atmosphere at the Massachusetts State House has begun to dissipate. A case in point: two bills recently filed on Beacon Hill that take aim at the state’s draconian mandatory-minimum-sentence drug laws.

The first measure, known as Senate Bill 167, would make drug offenders who have already served two-thirds of mandatory-minimum sentences eligible for parole — something that they currently cannot seek, unlike rapists, armed robbers, and child molesters, who are not subject to mandatory minimums. Sponsored by State Senator Cynthia Creem (D-Newton), Senate Bill 167 constitutes a kind of baby step toward reform. The proposal does not repeal mandatory minimums for drug convictions. Nor does it offer a get-out-of-jail-free card for the thousands of drug offenders who’re now languishing in the state’s 22 correctional facilities. It simply tries to ease the impact of these sentences for those who’ve done substantial time.

Senate Bill 167 also dovetails with a much larger reform effort that would moderate the mandatory-sentencing drug laws. That bill, known as House Bill 3302, would institute a comprehensive set of sentencing guidelines for all the state’s 1922 statutory crimes. Under the guidelines, judges would be allowed to depart from the rigid penalties dictated by the mandatory-sentencing drug laws and instead sentence addicts to treatment and intense supervision. The bill, sponsored by State Representative David Linsky (D-Natick), mirrors legislation first drafted seven years ago by the Massachusetts Sentencing Commission, a state agency dedicated to overhauling the criminal-justice system — legislation that has died at the State House every single session since.

But in these tough fiscal times, such sentencing reforms are gaining ground. Senate Bill 167, in fact, has extra appeal. According to the Sentencing Commission, approximately 2000 prisoners are currently serving mandatory minimums — out of close to 20,000 county and state prisoners. Of those, 650 people would be eligible for parole immediately if Senate Bill 167 were to pass. The commission estimates that up to 325 of these drug offenders would receive parole in the first wave. Given that it costs $36,000 per year to house one prisoner, the measure could save as much as $11.7 million almost instantly. These savings were highlighted at a packed, 100-strong May 21 hearing on the two bills before the legislature’s Joint Committee on Criminal Justice — which is expected to recommend the bills in upcoming weeks. Numerous organizations, including the Sentencing Commission, the Supreme Judicial Court, and local and state bar associations, spoke in favor of the proposed legislation. Those who attended the hearing say committee members repeatedly questioned the cost of the current drug policies. Even the state’s district attorneys, who’ve consistently opposed loosening mandatory minimums, seemed willing to compromise. Although the district attorneys reject Senate Bill 167 and House Bill 3302, they have expressed a willingness to modify certain mandatory minimums.

For those who back sentencing reform, the state’s ballooning budget crisis has opened a window of opportunity. Advocates who’ve long criticized the mandatory-drug-sentencing policies are seizing on the existing climate as a chance to change hearts and minds among fiscal conservatives and unlikely political allies. As Lynn Holbein, a member of the local chapter of Families Against Mandatory Minimums (FAMM), puts it, "Today, there’s opportunity in the midst of our budget crisis. Politicians who were unwilling to make these decisions based on what’s right may do so based on money." After all, she aptly points out, "Money has a way of causing introspection."

THERE’S NO doubt that the state’s mandatory-minimum-sentence drug laws need revamping. As it stands, Massachusetts’s mandatory sentences for drug convictions rank among the harshest in the nation. Trafficking in as little as 14 grams of cocaine — an amount equal in volume to 14 packets of sweetener — gets you three years behind bars. If you’re convicted of selling those 14 grams near school property, you get another two years. If you’re convicted of possessing those 14 grams with intent to sell to minors, it’s an additional three years on top of that. And all this happens automatically.

This rigid, one-size-fits-all approach to criminal justice — an approach that shifts discretion from judges to prosecutors, who choose what charges to pursue in the first place — has long come under fire. These laws lump disparate behaviors and people into neat categories, with no room for common sense. As a result, people who deserve less severe penalties are left languishing in jail cells for decades. People who had never broken the law before. People who had unwittingly dated a drug dealer. People whose habits put them at the wrong place at the wrong time. In Massachusetts, first-time, nonviolent drug offenders routinely spend more time behind bars than rapists and child molesters. Says Martin Rosenthal, of the Massachusetts Association of Criminal Defense Lawyers (MACDL), who’s pushed to repeal mandatory minimums for drug convictions since 1990, "Nobody likes to talk about the huge injustices. The poor drug mules and petty dealers who go away for 10, 15, and 20 years."

Count Charles Ginsberg among the lot. A Web-page designer from Arlington, Ginsberg, 53, spent most of the 1990s locked up in a tiny cell in a Georgia penitentiary, serving a 10-year mandatory sentence for conspiring to sell marijuana. Because the "conspiracy" in question extended beyond Massachusetts, Ginsberg, a Winthrop native, was sentenced under federal mandatory-minimum laws, which, unlike the state’s, allow offenders to earn "good time" for early release. After nearly nine years and the successful completion of a drug-treatment program, he managed to shave six months from his prison term. Nevertheless, Ginsberg considers his punishment "out of whack" with his crime.

It’s not as if he didn’t sell pot. Indeed, he readily admits he became the pot dealer of choice for customers in and around Winthrop. "But I was a small fish in a big tank," he says. At the time of his November 1991 arrest — when a buyer who’d been charged with conspiracy to sell gave him up — Ginsberg had been in trouble with police only once, when, at 19, he was arrested for possessing pot. He had never owned or fired a gun. Two years before his arrest, he had stopped selling marijuana at all. And so, he says, "I didn’t deserve 10 years. If you’re a small fry and you don’t hurt anyone, I see no reason to go to prison that long."

Ginsberg’s time behind the wall provided him with firsthand lessons on the failed results of mandatory minimums — not just the injustices of their severity, but also the racial disparities they deepen. More than 80 percent of people convicted under Massachusetts’s mandatory-sentencing drug laws are minorities, according to the Sentencing Commission. And the same holds true at the federal level — even though blacks and Latinos consume drugs at the same rate as whites. Ginsberg recalls meeting black and Latino men who’d done, as he puts it, "a lot less than me," yet faced much stricter penalties. Some were teenagers who had run with the wrong crowd, gotten caught with an ounce of crack, and been sentenced to 20 years. Others smoked joints inside their homes in cities, like Boston, where entire neighborhoods fall within a school zone. The experience left him convinced of the need for reform. He adds, "I feel a duty to speak out with whatever breath I have in me."

So does Nancy Brown, who heads the New England chapter of FAMM. Brown got involved in FAMM back in 1991, when her son, then 20, was charged with conspiracy to transport a controlled substance across state lines. When she heard her son, who had followed the Grateful Dead, was facing a 10-year mandatory, "I was floored," she says. "I thought, ‘Oh, my God. He must have killed someone.’" On the contrary, her son, whose name Brown asked the Phoenix not to publish, had sent an envelope containing several tabs of LSD through the mail to a friend. To this day, the sentence — which her son served in various penitentiaries until his 1999 early release for good behavior — strikes Brown as extreme. She explains, "My son used illegal substances and should pay the consequences." Yet for a young college student who’d never been in trouble, she adds, "the sentence did not fit his crime."

It’s a message that Brown and FAMM advocates have tried to send to Massachusetts legislators for years now. Ever since 1996, when the Sentencing Commission composed its set of comprehensive sentencing guidelines, advocates have fought to ease mandatory drug sentences — to no avail. When it comes to these sentences, the commission’s recommendation seems nothing if not modest: it would simply give judges discretion to sentence drug offenders to less than the mandated minimum. By having to provide written reasons for the departure, judges would be held accountable. And prosecutors could appeal such decisions at any time.

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Issue Date: June 6 - 12, 2003
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