Gants blames DAs for lack of reform

State’s top judge says prosecutors don’t want to cede discretion in sentencing to judges

THE STATE’S TOP judge went all-in on his call to eliminate minimum mandatory sentences for drug offenders, saying the state’s prosecutors “hold the cards” and are the biggest obstacle to sentencing reform because they don’t want to cede power to judges to make the determination on incarceration.

Let us be honest: When some district attorneys say they fear judicial leniency, they really are saying that they do not want to relinquish to judges the power to impose sentences that minimum mandatory sentences give to prosecutors,” Supreme Court Chief Justice Ralph Gants said at the 2nd Annual Massachusetts Criminal Justice Reform Coalition Summit at the University of Massachusetts Boston.

Gants, who first floated the idea to abolish minimum mandatory terms when he was sworn in last summer, said prosecutors use the cudgel of lengthy sentences to extract plea bargains and avoids trials, a move Gants says penalizes defendants who want to exercise their constitutional right to a trial and may have a chance to win.

I understand why they would like to preserve their power to sentence; what card player would agree to surrender the cards that yield a superior hand?” Gants said. “But as long as prosecutors, rather than judges, hold the cards that determine sentences, we will not have individualized, evidence-based sentences.”

While the vast majority of those at the conference, which was sponsored in part by MassINC, publisher of CommonWealth magazine, were supportive of Gants and the call to reform sentencing, the district attorneys in attendance took issue with returning discretion to judges and with Gants’s confrontational tone.

The proposal “is not a new progressive policy but a return to a failed policy of 30 years ago,” said Suffolk District Attorney Daniel Conley, who sat one on of the panels after Gants’s address. “Prosecutorial discretion is not a dirty word.”

Conley, acknowledging he was the “skunk at the party,” took issue with Gants and others saying Massachusetts was contributing to the incarceration problem around the country, noting the state ranks 48th per capita in the number of people behind bars, even though the correction system is running at 130 percent capacity.

When Gants first broached the idea of sentencing reform last July, he was more deferential to the process, noting the Legislature was the place for change and calling on all parties to work together for sentencing reform. But in his speech on Monday, Gants challenged lawmakers to ramp up their efforts and said a commission he had set up to begin the process of reforming non-mandatory sentencing should have its work done by fall with recommendations expected to be implemented by next spring.

Barnstable District Attorney Michael O’Keefe said Gants’s push runs counter to what he and other prosecutors see every day and suggested if Gants wants to engage in the political process, he should go before voters.

“Something led us to this and it was the disparate sentence of 25 years ago when the drug dealer was arrested in the morning and was back on the corner in the afternoon,” O’Keefe said during a break after Gants’s speech. “Tell me which people who are in prison now should be let out? I don’t see the same argument with respect to mandatory sentence for murder. Is he suggesting that should be changed? If judges want to get into this sort of policy making and political arenas around this issue, perhaps like district attorneys they should be elected and accountable to the public.”

For Gants as well as some of the panelists, the divergent impact of drug sentencing on minorities was a key reason to move ahead with reform efforts and eliminate minimum mandatory terms. According to 2013 data, the latest available, nearly one-third of all those incarcerated in Massachusetts are minorities. Racial and ethnic minorities accounted for 55 percent of those convicted on non-mandatory drug offenses while minorities make up 75 percent of those behind bars on mandatory minimums.

“We cannot incarcerate our way out of the drug problem,” Gants said. “The empirical evidence demonstrates that minimum mandatory drug sentencing has had a disparate impact upon racial and ethnic minorities.”

State Sen. William Brownsberger, co-chair of the Joint Committee on the Judiciary, said given the way drug use and addiction are treated in the suburbs versus the inner city, there is a lack of political will to make changes.

If all drug prisoners “were white, middle-class kids, the groundswell for change would be overwhelming,” said Brownsberger, who urged the judiciary to bring a “simple” reform bill to avoid getting bogged down in debate and the legislative process. “The issue is far enough away from most voters so there is no groundswell.”

Another panelist, John Larivee, president and CEO of Community Resources for Justice, a Boston-based criminal justice advocacy organization, said while reforms are necessary, part of the problem is the expectations of what the criminal justice system should be doing and the spreading of finite resources out away from its primary mission.

We’ve asked the criminal justice system to solve the problems of homelessness, drug addiction, and mental health,” said Larivee, as Conley nodded in agreement and pointed at him.

Attorney General Maura Healey, in the closing address, did not come down on either side of the debate but acknowledged what’s in place is not working to resolve issues of drug abuse and mental illness. She said there are too many “unnecessary incarcerations or incarcerations for the wrong reasons” under the current system.

Healey also said women in the corrections system are “underserved” because of the lack of facilities, forcing many of them to be shipped to MCI-Framingham from faraway places such as the Cape or the

Berkshires just to await trial, causing disruptions of families. She vowed to work to make sure mothers are not separated from children, especially newborns, and increase the availability of mental health resources for women offenders, who often suffer from mental illness at a much high rate than men.

Photographs by Hawley Shea