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Evan Horowitz Quick study

Behind the fight over mandatory minimum sentences

Violent crime in Massachusetts has fallen 50 percent since its peak in the early 1990s, yet many of our laws still reflect the fears and anxieties of that more dangerous time.

Consider mandatory minimum sentences, which require strict, specific penalties for certain kinds of crimes. Massachusetts’ highest judge, Ralph Gants, has taken a leading role in the effort to end mandatory minimums for drug crimes. He argues, among other things, that such laws prevent judges from issuing fair sentences and disproportionately target minorities.

Such calls for reform have met with forceful disagreement from the state’s district attorneys, who note that only about 1 percent of all criminals in Massachusetts even face these mandatory minimums.

Beyond this public dispute about the merits of mandatory minimums is a turf war about who is better suited to administer justice and ensure the safety of all Massachusetts residents, prosecutors or judges.


What’s the point of mandatory minimums?

When criminal activity was spiking, in the 1980s and 1990s, states responded by pushing for harsher sentences.

The idea behind mandatory minimum sentences is to dictate exactly what kinds of penalties should be applied for certain offenses, whether homicide or drug trafficking.

As a result of these policies, Massachusetts drug penalties got harsher and many more drug offenders ended up in prison.

Why have mandatory minimums become controversial?

A lot has changed since the 1980s and 1990s. Gone are the crack epidemic and the bubble of violent crime that once gripped the nation — and with them the chief justification for the “tough on crime” approach.

Not that crime is a thing of the past. It’s certainly possible to argue that Massachusetts’ heroin crisis is a reason to keep harsh penalties in place for drug trafficking.

But researchers have learned from America’s experiments with criminal crackdowns that harsh sentences aren’t always good sentences. A recent, comprehensive analysis from the Brennan Center, a criminal justice research center at New York University, found that putting more people in prison didn’t have that big an impact on the overall crime rate. New police strategies played an important role, as did unexpected factors such as the switch to unleaded gasoline, since exposure to lead has been shown to affect IQ and behavior, especially in children.

Aren’t mandatory sentences more fair?

Two people who commit the same kind of crime should get the same sentence. That’s just basic fairness.


Without mandatory minimums, it’s hard to be sure this is happening. Absent clear sentencing rules, judges have a lot of leeway, so if you happen to end up before a tough judge, you may get a longer sentence.

But mandatory minimums don’t really seem to have solved the fairness problem.

Minorities make up about three-quarters of all people jailed under mandatory minimum drug sentences in Massachusetts, according to information from the state’s sentencing commission. And that’s not because minorities are more likely to be involved in the world of illicit drugs. If you look instead at drug crimes that don’t fit the mandatory minimums, it turns out most of the people jailed are actually white.

What would change if we eliminated mandatory minimums?

On the surface, it seems like eliminating mandatory minimums for drug offenses wouldn’t really have that big an impact. After all, only about 450 people are sentenced under these laws each year, out of a total of 40,000 convictions.

That’s a teeny number, but this is one of those iceberg-like situations where the real impact may be broader, only hidden beneath the waves.

Over 90 percent of criminal cases never go to trial. What happens, instead, is that the prosecutor and the defendant negotiate until they come up with a sentence they can both accept.

Mandatory minimums can play a big role in these negotiations. They allow prosecutors to say to drug offenders, “Take the deal I’m offering, or you’ll end up facing the mandatory sentence.”


For the defendant, there aren’t a lot of options. You can’t go to court, raise mitigating factors, and ask for a lesser sentence; the whole point of mandatory minimums is that judges aren’t allowed to grant lower sentences. So either you accept the deal — however unfair it may seem — or you take your chances in court, knowing that if you can’t prove your innocence, you’ll be given a stiff mandatory minimum.

In a world without mandatory minimums, defendants would have more leverage to negotiate their plea deals, precisely because they could walk away and take their chances in court. And judges, for their part, would have the discretion to tailor their sentences to match the specific contours of a given case.

Would the racial disparities disappear without mandatory minimums?

Probably not. After all, judges are people, too, with their own biases and prejudices. Giving them more discretion over sentences might actually create a new avenue for racial inequity, where judges — consciously or unconsciously — mete out different penalties based on people’s race or background.

On the upside, at least this sort of racial bias would take place out in the open. Any suspicion of bias could be tracked back through a judge’s decisions, to ferret out any patterns of discrimination.

Are mandatory minimum drug sentences likely to be repealed?

It’s hard to predict the fate of any one political fight, but the big picture is clear. With violent crime in Massachusetts approaching a 50-year low, support for harsh criminal penalties is going to fall, forcing a broad readjustment in the way the state balances crime and punishment.

Evan Horowitz can be reached at evan.horowitz@globe.com. Follow him on Twitter @GlobeHorowitz.