Mandatory Minimum Mythbusting

Daniel F. Conley, Suffolk County District Attorney


It was not surprising that former federal judge Nancy Gertner picked up the mantle of her former colleagues (“DA Conley: Skunk at the garden party,” March 19), but she and others who perpetuate so many falsehoods about mandatory minimum sentences are playing a self-serving, dangerous game with the public safety.  The low-level, non-violent drug offenders that she and others claim are packing Massachusetts prisons simply don’t exist.  It’s time to bust this myth.

In an average year, my office handles about 35,000 criminal cases.  We divert up to 15% of those cases prior to trial to the benefit of low-level, non-violent, first- and second- and even third-time offenders.  Only a fraction of our cases, about 4%, end with incarceration, and those who receive it are overwhelmingly violent offenders with long records.  Minimum mandatories apply only to drug traffickers – not drug addicts – and they represent only a tiny subset of incarcerated individuals. 

Who would benefit from repealing mandatory minimum sentences for drug traffickers?  It wouldn’t be the public. It would be the defendant whose apartment in a residential neighborhood held three illegal handguns, more than 300 rounds of ammunition, and more than 100 grams of heroin.  Amid a statewide epidemic of fatal heroin overdoses and a 40% rise in opiate-exposed newborns, was he committing a victimless crime?

It would be the defendant whose cocaine trafficking convictions in state and federal courts held him on long prison sentences while we built a case against him for killing an innocent college student with bullets meant for a rival drug dealer. That young woman’s parents might be surprised to hear that she was murdered by a “non-violent offender.” 

It would be any of the 18 defendants in just one court session on just one day who had no fewer than 70 convictions for violent crimes and 73 for drug offenses. At an average of about eight convictions per person, which one of them should not have been behind bars?  There is no more popular support for releasing violent drug traffickers like these than there is for defendants who carry illegal guns, distribute child pornography, or commit other offenses punishable by mandatory sentences.

These defendants, and others like them, occupy a space at the deadly intersection of illicit drugs and violent crime.  Since mandatory minimum laws were first adopted in the early 90’s, police and prosecutors have staked out this same ground, steering low-level, non-violent offenders away from jail and leveraging tougher sentences against the most dangerous offenders: those carrying and using illegal guns, murderers, and, yes, drug traffickers whose greed drives violence and addiction.  Our strategy is not to put every offender in jail, but to reserve incarceration for the relatively few people who drive the violence or are so incorrigible that there is no other option. 

This strategy is at the heart of another truth that’s been relentlessly suppressed by Gertner and others in the local discussion of national criminal justice reform: Because state prosecutors use their tools with precision, Massachusetts’ incarceration rate is now the third-lowest in the United States despite having the third-highest population density.  In fact, it has been falling for years and the Department of Corrections has been closing prison wings due to declining prison populations.  Our low incarceration rate is closer to those of the liberal democracies of Western Europe than it is to the US national average.  Rather than demolish the policies that have brought our crime rate down along with it, we in Massachusetts would do well to export them to high-incarceration states such as Louisiana, Mississippi, and Oklahoma.

Gertner is entitled to speak on behalf of judges and academics but does so from an ivory tower.  I represent the residents of Boston and Suffolk County, many of whom are old enough to remember the devastation that unfettered judicial discretion visited upon our communities in the 1980s and early 1990s.  The revolving door of justice was not a myth but a fact.  The drug trade and its associated violence claimed upwards of 150 lives in just one year.  Residents, jobs, and businesses fled the city as a result.

Those trends reversed themselves with the enactment of a host of reforms, including a law enforcement philosophy that was more data- and intelligence-driven, where community-based partnerships took root, and, yes, where mandatory minimum sentences and other laws gave prosecutors the tools they needed to hold the most violent and incorrigible offenders accountable.  

Judges in Massachusetts still retain almost complete discretion over 99% of all the cases that come before them – far more than their federal counterparts.  Where the Legislature has modestly limited that discretion for very good reason, the results have borne out the wisdom of their action.  Unsurprisingly, this has never sat well with the likes of Gertner, but that does not give her license to unfairly attack prosecutors who have exercised their authority with balance and integrity, or to twist facts and perpetuate myths to advance her agenda.

Massachusetts Lawyers Weekly, March 19, 2015