Crime and punishment
What’s the right thing to do with an 18-year-old caught with a gun?
Photographs by Mark Ostow
DIANE MCMANUS SAYS her youngest child, Timothy, is “no street kid.” He was “raised in the church,” she says, a respectful son who minded the rules she set down, even as a teenager growing up in a rough patch of Dorchester off Blue Hill Avenue. But while Diane McManus was out of town in February 2014, visiting an older daughter who was undergoing surgery in South Carolina, Tim defied her orders to be home by 11 p.m. He was stopped by police a block from their home just after 1 a.m. on a Saturday morning and arrested when they found a loaded handgun in his jacket.
Today, Tim McManus is nearing the end of an 18-month jail sentence—the mandatory minimum penalty for carrying an unlicensed handgun in Massachusetts. Nobody thinks teenagers should be carrying guns on the streets of Boston. And gun violence is a particular plague on neighborhoods like the one where the McManuses live. Jail may be the best—or only—way to deal with many of those carrying and shooting guns there. But was it the right thing to do in this case?
Prosecutors say Tim McManus had been hanging out with known “impact players,” the law enforcement term for the small number of people believed to be responsible for much of the gun violence in Boston, which is heavily concentrated in minority neighborhoods like those along Blue Hill Avenue. They say it’s critical to use the available enforcement tools to send a clear message about illegal guns.
Even the prosecutor first assigned to the case seemed to agree. He had initial discussions with McManus’s lawyer about pleading guilty to lesser charges that would have carried lengthy probation but no jail sentence. In the end, the district attorney’s office rejected the idea.
“My position has always been that the way we approach unlicensed carrying of firearms has had an impact on public safety,” says Dan Conley, the longtime Suffolk County district attorney, citing the big drop in firearm violence in Boston over the last two decades. “I don’t make any apologies for strictly enforcing the law.”
The imperative to get guns off city streets is a goal shared by law enforcement and community members alike. But it exists alongside another issue that is getting increased attention: Rethinking criminal justice policies that have put many young minority males behind bars at an age when mistakes come easily and incarceration can have lasting negative effects.
The gun violence and high incarceration rates are largely occurring in the same areas. That means those who worry about their own safety and that of their neighborhood, like Diane McManus, are sometimes the same people who wind up anguished and angry when a family member is sent to jail in answer to the call for safer streets.
A GUN AND A GRAD
On the night of his arrest, Tim McManus was heading home from a party in his neighborhood. He was walking with three other teenagers when they were approached by Boston Police Sgt. Thomas Brooks, who got out of his car along Blue Hill Avenue. Police had received a call about a fight at a nearby house party where there was fear that gun retaliation might follow. In his arrest report, Brooks said McManus appeared nervous and was holding the corner of his jacket in a way that made him believe he could be concealing a firearm. Brooks also recognized one of the people with him as someone connected to an area gang who has been present at “firearm incidents” and had himself been previously shot.
As he was talking to the group, Brooks said he intentionally tapped McManus’s belt area in order to gauge his reaction. When McManus “tensed” and turned away, his suspicions rose considerably. Once backup officers arrived, Brooks said he reached and felt the outline of a gun in McManus’s jacket. He was searched, handcuffed, and arrested for illegal possession of a .22-caliber Walther P22 handgun loaded with eight bullets. The three others who were with McManus were searched and released.
Two unusual things then happened. The first was that, for a variety of reasons, the case got delayed several times and it was nearly a year and half after his arrest that McManus finally went to trial. The second was that after he was released on $1,500 bail, McManus made it through the whole time before his trial—a period roughly equal to the minimum jail sentence he was facing—without getting into any trouble with the law.
He was placed on pretrial probation wearing a GPS monitoring device that tracked his whereabouts and put under strict curfew orders. He was to return to high school classes, be home each day by 3 p.m., and not leave his house before 5 a.m. The only time the GPS tracker went off, says his lawyer, was one time that it malfunctioned.
School never came easy to McManus. He spent eight years at a Boston public school for students with learning and emotional issues before transferring in 11th grade to Dorchester Academy, a troubled district high school. He needed to pass just two courses during the semester following his arrest in order to graduate, but that seemed no sure bet.
“I don’t think anybody thought he was going to graduate, especially after the charge, with all the stress and everything,” says Olivia DuBois, a social worker at Dorchester Academy who worked closely with McManus. But he completed the classes and, in June 2014, wearing a GPS ankle bracelet, cap, and gown, McManus received his diploma.
He immediately entered a job-training program run by Youth Options Unlimited, a city-affiliated agency that works with court-involved youth. He ended up working on construction projects where he learned drywalling and other carpentry skills. “He did well with our program,” says Andrew DeAngelo, who was McManus’s case worker. “He was very respectful. He accepted constructive criticism well.” As for his construction skills, DeAngelo says, McManus “has a knack for working with his hands.”
Officials at the program were also struck by how supportive Diane McManus was. At one point, Tim was working at a job site near their home. “She would make lunch not only for Timothy every day, but because they were working right next door, she would make it for everyone. I would show up and the whole team was having Thanksgiving dinner,” says Freddie Velez, a manager at the program. “You could see there was this level of love and caring for Timothy that you don’t always see in families.”
Diane McManus has been the one steady presence in Tim McManus’s life. He is the youngest of eight children. His parents split up when he was young, and his mother says she raised him in a house where her word was second only to God’s.
After his arrest, she did whatever it took to make sure he was home by the 3 p.m. curfew. School got out at 2:15, but if there were delays with the bus he caught, she would jump in her car and rush there to get him. “Sometimes I would say just get in a cab and I’ll pay it when you get here,” she says. “I was under so much pressure.”
“He finished high school under house arrest,” says Diane McManus “He never violated. He didn’t do anything. He kept curfew, and, remember, he was only 18 years old. Young men, they don’t pay attention to laws and regulations.”
A CLOSE CALL?
Alex Welsh, the public defender who represented McManus, was determined to try to spare him from serving time in jail. Between completing high school, starting job training, and abiding by the stringent court-imposed curfew, he thought it was clear that McManus was trying to turn things around. And he was convinced that jail would only set back those efforts and increase the chances of McManus heading back down the wrong path. Welsh’s efforts nearly paid off.
“I was talking to the DA’s office the whole time and saying, look, watch this kid, watch what he’s doing,” Welsh says of McManus’s extended time on pretrial probation.
By late 2014, the prosecutor handling the case, Peter Pasciucco, who was chief of the DA’s gun court session, seemed won over. In December, Pasciucco filed a motion to delay an upcoming court date in the case. “The Commonwealth and defense are working toward a resolution/proposal that will not include mandatory jail time,” he wrote. “The Commonwealth is not prepared to make an offer yet but will be once additional information is obtained.”
Welsh says he also spoke to Tommy Brooks, the Boston police sergeant who arrested McManus. He says Brooks was impressed by how well McManus was doing and agreed with the plan. “He was on board with not giving him a committed sentence,” says Welsh.
When the case was ultimately reviewed by higher-ups in the district attorney’s office, however, they rejected the idea of “breaking down” the charges to something that did not carry mandatory jail time.
Jake Wark, a spokesman for the office, says several factors played into that decision, including the fact McManus was with a known “impact player” when he was arrested and was also with a known gang member when stopped and questioned by police several months earlier. McManus had one other brush with law: He was facing charges in connection with an assault on an older man in a downtown Boston subway station. That case was ultimately dismissed; McManus says he intervened to try to stop the fight.
Wark says prosecutors also worry about the message it would send to go easy on a defendant without a serious criminal background who could be holding a gun for someone with a long record. “He’s making very bad choices in terms of the company he’s keeping,” Wark says of McManus. “You can envision a circumstance in which a young person might be in fear of violence and choose to pick up a gun, acting out of that fear. That just does not seem to be the case here. It seems that he is among the groups that are causing fear.”
Diane McManus thinks her son was scared. She says he had come home in the months before his arrest with a black eye and another time with a bloodied mouth. When she questioned him, she says he chalked it up to “play fighting.”
Why Tim McManus was carrying a gun is not easy to answer. One reason the trial was delayed is that his attorney sought to suppress introduction of the gun as evidence, arguing that the street corner search that produced it was not lawful. His motion was denied, but McManus has taken his case to the state Appeals Court, which has not yet ruled on the petition. Because of the pending appeal, Welsh would not discuss specific facts of the case and advised McManus not to as well. (McManus is likely to be out of jail before a ruling on his appeal, but if he prevails it would mean erasing a felony gun conviction from his record.)
For his part, Conley, the Suffolk County district attorney, says the community has demanded aggressive prosecution of gun cases, and his office has responded. “There was real concern in the communities hit hardest by violence about individuals not being held accountable for carrying firearms,” he says. “When you talk to crime victims and you talk to neighborhood groups, they really want police and prosecutors not to be heavy handed, but to enforce the law and make their neighborhood safe.”
Conley says the various gun charges McManus originally faced, including carrying a gun with a defaced serial number, could have totaled 12½ years in prison if prosecutors sought and won the maximum sentences. “We exercised an awful lot of discretion beneficial to him,” says Conley.
Pasciucco, the chief gun court prosecutor originally assigned to the case, says McManus’s case was one of a very small number where the district attorney’s office considered lowering gun charges to something not requiring a mandatory minimum jail sentence. “That was a close call as to whether it was going to be broken down or not,” he says. He says he agreed in the end with his supervisors’ call not to do so because of concerns about who McManus was spending time with.
“I would absolutely characterize it as a dilemma that I faced as a prosecutor,” says Pasciucco, who is now in private practice. “If you don’t enforce the 18-month sentence, you send the wrong message to the neighborhood that illegal gun possession and gun violence aren’t being taken seriously. But you also have to weigh each case. Is this person going to be better off if they’re given straight probation and certain conditions are attached to it?”
Young people carrying guns, even if it’s for protection and they’re not intent on using them, represent one of the biggest threats to safety in city neighborhoods. “There is no one who doesn’t understand how dangerous a loaded handgun is,” says Wark, the DA’s spokesman. “It’s one insult away from a shooting.”
Diane McManus understands that as well as anyone. She says a young woman she used to babysit for was shot to death only blocks from their house, just one of the many victims of gun violence she can tick off in her neighborhood. Sitting at her dining table on a Saturday afternoon, she says she hates guns and nearly fainted in court when the weapon her son was charged with carrying was presented as evidence. She takes a deep breath and then adds something that it clearly pains her say.
“I’m kind of one part glad that it happened the way it did because who’s to say if Officer Brooks wouldn’t have stopped him that night he wouldn’t have went out the next night and shot somebody?” she says. “Oh, believe me, I’m not in denial. I’ve had to face all this.”
As her comment underscores, the issue isn’t whether to take a hard line against illegal guns, but whether more discretion should be exercised in deciding what to do with someone caught with one in a case like this.
“At the end of the day, what do you want him to do? Turn his life around, right? Get off the streets. He did that. And then you still send him to jail,” says DuBois, the social worker from Tim McManus’s high school who now works with Welsh at the state public defender’s office in Roxbury. “It doesn’t make any sense.”
Sen. Will Brownsberger, cochairman of the Legislature’s Judiciary Committee, says the questions the criminal justice system should be asking are, “What does it take to send a message? What does it take to change behavior?” Jail “doesn’t have a good influence on people and we’re doing harm when we keep people there any longer than we need to,” he says. “You have a lot of people coming out who have lost their sense of how to function in a community, how to accommodate themselves to a job environment, how to maintain relationships.”
Brownsberger says he doesn’t necessarily fault prosecutors, however, for using the mandatory minimum sentencing system that lawmakers have put in place. “If they deviate from those policies and things go wrong, they’re going to bear a heavy burden,” he says. It’s up to the Legislature to decide whether changes to the system are in order, he says. The state is currently carrying out a comprehensive review of criminal justice policies, with reform proposals expected early next year. “There is no mandatory on the books that I would exclude from scrutiny,” says Brownsberger, though it’s a position that would face considerable opposition.
Rev. Jeffrey Brown was a cofounder of Boston’s nationally-recognized Ten Point Coalition, formed in the early 1990s to combat rising youth violence. Community-based efforts, together with a focused anti-violence strategy employed by police, helped drive a dramatic decrease in the city’s homicide rate and gun violence. The key, Brown says, has been to reserve the system’s harshest response for those responsible for the violence, while doing as much as possible to redirect others on the edge of trouble down more productive paths.
“I have lived that tension for the better part of a couple of decades,” says Brown. “We all want to see less guns and less guns in the hands of young people in our community.” At the same time, he says, incarceration can also “increase the chances for someone to come out of the criminal justice system a hardened criminal when, if given a chance, he might have gone the other way.”
“It’s a conundrum,” says Emmett Folgert, longtime director the Dorchester Youth Collaborative, which works to divert high-risk teens from gangs and the criminal justice system. “Pulling guns off the street is keeping our murder rate down,” he says. Folgert also thinks gang members are aware of the mandatory 18-month sentence and are carrying guns less frequently because of it.
Tim McManus’s case finally came to trial in July 2015, but there was not a lot of suspense. McManus waived his right to a jury trial. Brooks, the Boston police sergeant who seized the gun from him, was the only witness from the 1 a.m. street corner encounter who took the stand. As soon as the brief closing arguments were done, Boston Municipal Court Judge Catherine Byrne pronounced McManus guilty.
“As you know, my options as the judge are very limited in terms of the sentencing,” Byrne said to the courtroom, a reference to the mandatory minimum sentencing statute. She said she “take[s] very seriously” all of the letters submitted that attested to how well McManus had done on pretrial probation, “which are the sort of things I would consider at sentencing. Unfortunately, I can’t do anything less than what the law requires.”
She imposed the mandatory minimum 18-month jail sentence plus one year of probation following his release. McManus was taken from the courtroom to begin his sentence at the South Bay House of Correction in Boston.
“It’s a really crucial period in a kid’s life,” Welsh says of the time his client has been in jail, an age at which other young people are off finding themselves at college. “They are developing a lot. There are a lot of patterns that are going to be permanent. And he’s learning them in a place that is really violent. He’s surrounded by people who are genuinely antisocial. And he’s having to navigate that and adjust himself to how to be tough and learn how to sort of at least fit in here.”
It did not take long for the often harsh realities of prison life to reach McManus. A month after he arrived at South Bay, he was jumped and beaten by several other inmates. He was taken to Boston Medical Center for stitches, and then transferred as a safety measure to the Essex County House of Correction in Middleton to serve the remainder of his sentence.
It’s a late August afternoon and Tim McManus is sitting with Welsh in a small bare room in the Middleton jail. He’s wearing a brown prison jumpsuit and sneakers. Now 21, he is reserved and sparing in his answers to most questions, not the voluble teenager described by staff at his high school or the Y.O.U. job training program.
McManus says he adjusted without a lot difficulty to jail. “Everything is mental,” he says. He says he’s been lifting weights, filling out his 6-2 frame, and reading, with a focus on self-improvement books. He mentions one particularly appropriate title, Letters to an Incarcerated Brother, written by actor Hill Harper. He took a class in critical thinking skills, though unlike other inmates he’s not eligible to earn “good time” credits that take time off his sentence because he’s serving a mandatory minimum. “It’s a class set up for good time, but I did it just to get off the unit,” he says.
He says he grew weary of the long period under strict curfew before going to jail. “I was kind of fed up with it,” he says. “It was hard. But I didn’t really think I had a choice at the time.” He credits the network of support he had pushing him to stick with it and get through high school. “A lot of encouragement there,” he says.
Though questions about the gun police seized are off limits, McManus says he doesn’t consider himself “a troublemaker.” “I don’t gang bang. Neighborhood and gang banging is two different things,” he says. “I chilled in the neighborhood. I know everybody in the neighborhood. I’ll say that much.”
McManus says he wants to get back into construction when he’s released in December. “Drywalling was smooth,” he says. “I love doing construction work. Hands on. I got a short attention span. I need something to grab my attention. If I’m thinking about the outside world, it’s really just money. Money and females,” he says, the one time he offers a small grin.
McManus says he’s well aware of the cycle of those who end up in jail and keep returning after getting released. “Some do a bid and say, yeah, it’s my last time coming,” he says, using a slang term for a jail stay. “Others are not so sure. For me, I know jail ain’t for me. I’m going to try my best to avoid it.”
After the jail visit, Welsh says he is troubled by McManus’s demeanor. “He seems kind of shut down,” says Welsh. “I think he’s just less willing to show his vulnerability. That’s probably a skill he learned in there.” Welsh says McManus called him regularly and was understandably frightened when he was first jailed. “He doesn’t want to say he was scared. He was saying, ‘oh no, I was cool.’ I worry about what this has done to him.”
BATTLING THE ODDS
If the jail environment is creating new hurdles that McManus will have to get over, the neighborhood he’ll return to presents its own problems.
“I don’t really plan on indulging with anybody I used to mess with,” McManus says of his post-release plans. But that may prove easier said than done.
He’ll be encountering lots of other young men who have done time and who are also struggling with the pull between getting their lives on track and the negative influences that can easily lure ex-offenders back to trouble. The neighborhoods along Blue Hill Avenue near his home form a corridor with an astonishing concentration of former offenders. From 2009 to 2015, 120 inmates were released from the Suffolk County House of Correction to addresses within a half-mile radius of McManus’s house, according to data from the Suffolk County Sheriff’s Department.
Of those getting released, younger offenders like McManus run a particularly high risk of ending up back in trouble and back behind bars. Recidivism rates in Massachusetts, as elsewhere, are highest among the youngest offenders, according to a report this summer by the Council of State Governments, which is helping Massachusetts with its review of criminal justice policies. Among 18-24 year-olds released from Massachusetts houses of correction in fiscal year 2011, 76 percent were rearraigned on a new charge within three years, 55 percent were convicted, and 52 percent were reincarcerated. By contrast, the reincarceration rate was nearly half that level for those 45 and older, with 29 percent reincarcerated within three years.
Working in McManus’s favor is the fact those with fewer prior convictions have lower recidivism rates, and the job training program he worked with is ready to take him back. DeAngelo, the case worker from Youth Options Unlimited, visited McManus in jail in March and plans another trip this fall to talk about plans for him to reenter the program when he’s released. “We told him we would be there for him while he was in there, we would stay in touch, and we’d be there on the other end,” says DeAngelo.
Those who do well with the program can find a path into the building trades unions, something that would be life-altering, says Welsh. “It really could be a stepping stone to him having a really stable life,” he says.
“The reality is the odds are stacked against him,” says Olivia DuBois, the social worker who has worked with McManus since high school and still calls and visits him. “My hope is he can beat those odds. I’m hopeful because of the support he has, because of the person he is. I hope he’s the exception to the statistics.”
DuBois says she has talked with McManus and his mother about moving out of the neighborhood, an idea also raised by Welsh and DeAngelo. “We’ve talked at length about them moving,” says DuBois. “I think environment plays a big role in a lot of things.”
Diane McManus has been ready for months for Tim to come home. She painted the first floor bedroom for him in the townhouse she bought 27 years ago through the Habitat for Humanity program. “He told me, ‘I want my room green. That’s life. Money green, neon green, any green,’” she says. “I keep him optimistic,” she says of their conversations about his room, where two chess sets await his return, along with an aquarium ready to be filled with water and fish. “Everyone needs to know they are needed and wanted.”
Despite her work to get his room ready, Diane McManus agrees with those who say the best thing would be to leave the neighborhood behind.
“The same neighborhood where all this violence is. The same neighborhood where a young lady got shot in the head twice,” she says. “The same neighborhood where he got into trouble. I want to sell the house and just go.”
She worries about her son’s future, but says she thinks he will make it when he gets out.“I know he will,” she says wistfully, her tone as much one of fervent hope as unwavering conviction. “I know he’s in jail, but everything that people are saying don’t necessarily have to be true about how people come out.”
“When I speak to him, it’s not based on him being locked up,” she says. “I always say to him, don’t let your environment dictate who you are. The word of God is so true: As a man thinketh, so he is. So what I try to teach him is, change your thinking. You got your high school diploma. You were learning a trade. You made one bad choice.”