Panel recommends eliminating mandatory minimum drug sentences

BOSTON (SHNS) – Tackling an issue that could re-emerge in the Legislature over the next two years, a special commission studying the state’s criminal justice system recommended eliminating mandatory minimum sentences for all drug offenses in Massachusetts.

The commission also voted to recommend parole eligibility for all state prison sentences after an inmate has served at least two-thirds of the lower end of their sentence, except in cases of murder or manslaughter, and to maintain the current parole eligibility standards in houses of correction of half-time served on sentences of 60 days or more.

The commission, formed over two years ago, is trying to produce an in-progress report before the end of the year to inform Governor-elect Charlie Baker’s administration. Baker, during his campaign for governor, voiced support for striking mandatory minimums for non-violent drug offenses as part of a broader approach to combat substance abuse.

The Special Commission to Study the Commonwealth’s Criminal Justice System on Tuesday began debating legislative recommendations members plan to make to strengthen post-release supervision, improve prisoner reentry outcomes and reduce recidivism, and address overcrowding in the state’s jails and prisons.

“Drug offenses are a huge reason we have so much overcrowding in the prison system,” said Patty Garin, a criminal defense attorney and co-director of the Northeastern University Law School Prisoners Assistance Program. Garin and other commission members argued judges should be able to practice evidence-based sentencing, and suggested mandatory minimums disproportionately impact poorer communities and communities of color.

The 9-2 vote, with Attorney General Martha Coakley’s representative abstaining, came over the objections of Cape and Islands District Attorney Michael O’Keefe, who sits on the commission.

O’Keefe did not attend Tuesday’s meeting, but submitted a letter expressing his opposition and later told the News Service that mandatory minimums are a tool prosecutors “use and use very effectively to stem the flow of drugs into communities.”

“We utterly reject this notion that the criminal justice system is warehousing these non-violent drug offenders. That simply is not the case. People have to work extremely hard to get themselves into jail here in the Commonwealth of Massachusetts,” O’Keefe said.

The commission was formed by Gov. Deval Patrick and the Legislature in 2012, and Undersecretary of Criminal Justice Sandra McCroom said she hopes to publish a report by the end of the year, though she acknowledged that all of the commission’s work likely won’t be completed by then.

Patrick has also reconstituted the Sentencing Commission, which has met twice over the past two months and whose work could coincide with the criminal justice commission’s recommendations.

After placing on the books in 2012 a law toughening sentences for repeat violent offenders, legislative leaders promised Patrick they would revisit criminal sentencing reform proposals during the 2013-2014 session, but the issue never resurfaced. The 2012 law did reduce certain mandatory minimum sentences for non-violent drug crimes.

Public Safety Secretary Andrea Cabral, who does not have a vote on the commission, said she would have carved out an exception from the mandatory minimum recommendation for trafficking crimes. While supporting enhanced drug treatment options, she said not all people convicted of drug offenses are struggling with addiction, and some are driven by money.

“I think there should be a line drawn on trafficking,” Cabral said.

Others on the commission, including Garin and Anthony Benedetti, chief counsel at the Committee for Public Counsel Services, argued that judges should be given discretion even in trafficking cases, expressing confidence that harsh sentences will be issues for those who deserve them.

Worcester County Sheriff Lewis Evangelidis, a Republican, and a staff member representing Judiciary Committee Vice Chairman Rep. Chris Markey (D-Dartmouth) voted against the recommendation to do away with mandatory minimum sentences.

“To me it’s overreaching and too broad,” said Evangelidis, a former state representative.

Markey’s representative also voted against the recommended parole criteria, while Evangelidis supported the recommendation.

O’Keefe, the recent past president of the Massachusetts District Attorneys Association, expressed concern that if the Legislature were to eliminate mandatory minimum drug sentences, the courts would see defendants shopping for more lenient judges to avoid prison time.

“Mandatory minimum sentences came into being in the first place to ensure relative uniformity in the sentencing of individuals distributing drugs,” O’Keefe said.

The debate on the commission over legislative recommendations will resume next month. Progress was slowed on Tuesday when the first half of the 90-minute meeting was dominated by discussion of whether to include an overarching policy statement to preface the commission’s recommendations.

Sen. Patricia Jehlen, a Somerville Democrat, proposed a thematic policy goal that included a reference to over-incarceration. She said the idea that Massachusetts was incarcerating too many people for too long seemed to fit with the goals of increasing parole and reducing prison overcrowding.

Evangelidis disagreed, stating that while he supports “sensible sentencing,” his goal for the commission is to improve post-release and pre-trial services and reduce recidivism.

“The word over-incarceration makes me uncomfortable because it insinuates that we incarcerate people longer than they deserve and I don’t know that I agree with that,” Evangelidis said.

Attorney General-elect Maura Healey has also backed ending mandatory minimums for non-violent drug offenses, and during her campaign called for expanding the use of drug courts.

Barbara Duggan, project director for Families Against Mandatory Minimums, said at least 20 other states have repealed some or all mandatory minimums for drug crimes.

“There’s nothing going on here that’s crazy or unusual,” Duggan said. “It’s in line with what many other states have done.”

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