Mandatory minimum drug sentences costly mistake

DA talking points obscure real issues

SUPPORTERS OF MANDATORY minimum sentences for drug crimes are circulating a set of disconnected talking points on Beacon Hill that obscure the real issues.

The debate is heating up as the Legislature prepares to hold hearings this month on bills that would eliminate Massachusetts laws requiring judges to impose a prison term of a specified length based solely on the amount of the controlled substance involved.

The truth is the debate over mandatory minimum sentences for drug offenses is largely settled. Five years ago, a blue ribbon commission convened by the National Academy of Sciences at the request of the US Department of Justice weighed all of the evidence and concluded that state legislatures should revisit the use of mandatory minimum sentences, underscoring the evidence that the practice has imposed large social, financial, and human costs and provided uncertain benefits in return.

Rather than take on the mounting body of evidence that indicates mandatory minimums have been a costly mistake, the Massachusetts District Attorneys Association is circulating a set of talking points that prop up the outmoded tough-on-crime-era sentencing laws.

The talking points begin with the assertion that Massachusetts has some of the lowest incarceration rates in the country, even though we are one of the nation’s most densely populated states. There is a whole lot wrong with this statement. It ignores the fact that our relative standing on measures of income, education, and health—factors that are causally related to crime—should have us at the low end of the US rankings. Instead, the statement suggests we ought to have more crime because of our geographic footprint, which is factually unfounded; all else equal, studies show crime drops with density.

Like it or not, the fact is every state in the US shares responsibility for the country’s incarceration epidemic. It wasn’t simply a few misguided states that resulted in the US having 5 percent of the world’s population and 25 percent of its prisoners. With incarceration rates rising at a faster pace in Massachusetts than the US since the 1980s, the Council of State Governments’ analysis shows that we have actually contributed more than our fair share to the problem.

Proponents for the status quo argue that mandatory minimums came about because judges refused to hold people accountable for crimes in the inner city, and we should not go back to the bad old days. To be sure, the crime wave in the late-1980s and early-1990s created conditions in our cities that led well-meaning legislators to enact tough-on-crime policies that remain on the books today, but there are many reasons why it is not logical to uphold these policies based on the past.

To begin with, there is strong evidence that high levels of incarceration are now breeding more crime in the state’s most vulnerable urban neighborhoods than they are preventing. Residents in these very communities recognize the problem tough-on-crime laws have created, and they are most eager for change. This is captured by MassINC polling, which has found voters in high crime neighborhoods are especially eager to see judges have full discretion to make sentencing decisions based on the facts of the case. It’s also evident in the actions of the Massachusetts Black and Latino Legislative Caucus, which has called for the full repeal of mandatory minimum sentences for drug offenses.

Supreme Judicial Court Chief Justice Ralph Gants and others are especially troubled by the large racial and ethnic sentencing disparities created by mandatory minimum drug laws. Those who want to keep mandatory minimums in place suggest these stark racial disparities are the result of socio-economic factors alone. While we do not have data to evaluate how big a role bias plays in Massachusetts, the conclusion of the most rigorous analysis to date on this question indicates we should be seriously concerned that mandatory minimums create a large opening for bias to seep into our justice system. The authors write:

“After controlling for the arrest offense, criminal history, and other prior characteristics, sentences for black male arrestees diverge substantially from those of white male arrestees.. .. the procedural source of this disparity matters, and it is thus a mistake to focus on judicial sentencing alone. Our research suggests that racial disparities in recent years have been largely driven by the cases in which judges have the least sentencing discretion: those with mandatory minimums.”

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These findings were based on federal sentencing data. As policymakers have debated criminal justice reform in recent months, there is has been much discussion about Massachusetts’ exceptionalism and how national research does not apply to us. However, it seems particularly hard to argue that we are somehow less affected by the subtle forces of racism and racial bias in our society.

All sides in the debate agree that Massachusetts should be smart on crime rather than tough on crime. In the decades since many of the state’s mandatory minimum sentencing statutes were written, we have learned a lot about how sentencing laws deter crime and how they unintentionally create it. To be smart on crime, it’s time for us all to work together to toward evidence-based sentencing laws grounded by data and objective analysis.

Benjamin Forman is the research director of MassINC, the corporate parent of CommonWealth.