Sentencing commission backs repeal of mandatory minimums

IN ANOTHER SIGN of support for broad criminal justice reform, the Massachusetts Sentencing Commission voted to recommend abolition of mandatory minimum sentences for all crimes except murder. The move comes as state leaders are split on the best way to revamp criminal justice policies.

At a Jan. 18 meeting of the sentencing commission, members voted to support four different proposals to repeal mandatory minimums. The sentences, which require judges to impose a minimum sentence on certain crimes, have come under increasing criticism in recent years. Reform advocates say mandatory minimums, established during the tough-on-crime era of the 1980s and early 1990s, have disproportionate effects on racial minority groups, contribute to the country’s high incarceration rate, and unfairly tie the hands of judges, who can’t consider the individual circumstances of each case.

The commission took votes on six different proposals, and supported four them.

It voted 6-3 to recommend abolition of mandatory sentences for all crimes except murder and to support repealing mandatory sentences for a combined category of drug offenses and the first offense of carrying a firearm.

It voted by the same margin to support adding a “safety valve” provision to the sentencing law for all crimes except murder. Safety valves, which are in place in some federal sentencing statutes, maintain mandatory minimums as the default sentence, but allow judges to override the statute and impose a lesser sentence in cases that meet certain criteria.

The commission, whose members are appointed by the governor, has nine voting members: three judges, three prosecutors, and three defense attorneys. Judges and defense lawyers have long complained about mandatory minimums, while prosecutors have said they are an important tool in ensuring uniform punishment for certain offenses. The 6-3 votes broke along these lines, with the three prosecutors casting the dissenting votes.

On a proposal focused solely on ending mandatory minimum sentences for drug offenses, the commission vote was 7-2, with Dean Mazzone, representing Attorney General Maura Healey, joining the judges and defense attorneys in supporting the recommendation.

Healey indicated in a June 2015 letter to the Legislature’s Joint Committee on the Judiciary that she favored shifting the focus of cases involving those suffering from addiction away from the criminal justice system.

“I believe history shows we cannot incarcerate our way out of this public health crisis, and we need smart reforms that will allow us to focus on treatment for those we are most able to help,” Healey wrote. “That is why I support eliminating statutory mandatory minimums for certain drug offenses, specifically those that fall short of trafficking and do not involve minors.”

The commission voted against two proposals to recommend more focused “safety valve” sentencing changes — one that combined drug offenses and a first conviction for carrying a firearm and another for drug offenses alone. The first one failed on a 3-0 vote. The proposal on drug offenses alone was rejected 2-1, with two prosecutor representatives voting no and Mazzone, from the attorney general’s office, voting yes. On both votes, all three judges and three defense attorneys voted “present.”

Shira Diner, one of the defense attorney representatives, said she voted present on the two proposals because she favors the wider safety valve provision, and the commission had already voted to support such a change for all mandatory minimum sentences except for that for murder.

The sentencing commission action came as state leaders prepare to unveil reform legislation based on an evidence-based review of criminal justice policies overseen by the nonpartisan Council of State Governments. The review, initiated at the direction of Gov. Charlie Baker, Senate President Stan Rosenberg, House Speaker Robert DeLeo, and Supreme Judicial Court Chief Justice Ralph Gants, has focused principally on lowering recidivism rates through prisoner reentry, probation, and parole policies. State House News Service reported on Friday that the governor’s office has scheduled an announcement for Tuesday morning regarding the Council of State Governments review.

Critics of the review effort have said it was too narrowly focused on the “back end” of the system after offenders have served time and did not consider changes to sentencing practices or other reforms.

More than two dozen states have taken part in similar policy reviews as part of a federally-sponsored project known as the Justice Reinvestment Initiative. Aimed at developing evidence-based, cost-effective reforms that improve public safety, the project seeks to work with states where there is consensus among key leaders on the need for change and agreement on the scope of a policy review.

While the four key state leaders agreed on the need for changes to so-called “back end” policies that could lower recidivism rates, Rosenberg and Gants have made it clear that they favor a broader set of reforms.

A group of state senators, led by Rosenberg, outlined a range of proposals last week that would go beyond the likely recommendations of the Council of State Government process, including endorsing repeal of mandatory minimum drug sentences.

Gants has spoken several times about his opposition to mandatory minimum sentences for drug offenses, and he recently enlisted a group from Harvard Law School to conduct a review of racial and ethnic disparities in sentencing practices.

Baker and DeLeo have been circumspect about wider reforms, though Baker has signaled support for repealing some mandatory minimum drug sentences.

The state sentencing commission was established in 1994 to provide uniform sentencing guidelines for state courts. It previously proposed safety valve legislation for mandatory sentences but the measure was never adopted by the Legislature.

The commission was then dormant for more than decade until 2014, when then-Gov. Deval Patrick reconstituted the panel and appointed new members. It has been meeting since then with an aim of developing fresh recommendations.

“In the end, we will have a report and a whole legislative package that hopefully goes to the Legislature,” said Diner, the defense attorney on the commission, who called the recent votes preliminary recommendations.

Martin Rosenthal, a former member of the sentencing commission, called the January votes “a significant step forward,” though he added that it “leaves us far short of the goalpost of legislation.”

Bruce Mohl of the CommonWealth staff contributed to this report.