Metro

In drunken-driving cases, Melanie’s Law is rarely used

Ron Bersani spearheaded the campaign for Melanie’s Law after granddaughter Melanie Powell was killed.
Tom Herde/Globe Staff/File 2005
Ron Bersani spearheaded the campaign for Melanie’s Law after granddaughter Melanie Powell was killed.

SOUTH HADLEY — Cassandra Schutt pleaded for justice for her father, killed by a driver whose blood-alcohol level was 0.25, more than three times the legal limit.

“I am asking the court to prosecute Mark Ducharme to the full extent of the law,” Schutt told the judge in January 2015, moments after Ducharme admitted to killing her father, Wesley Schutt.

By then, it was too late. Prosecutors had already reached a plea agreement outside the courtroom with Ducharme’s lawyer, letting Ducharme pay for Wesley Schutt’s life by spending just two years behind bars.

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Such a lenient sentence for a fatal crime might seem like an outlier. But in Massachusetts, it is standard practice, according to a Globe review of nearly 100 cases of deaths caused by drunk drivers.

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From 2012 through last June, the majority of drivers convicted of causing fatal crashes by driving drunk or under the influence of drugs received sentences of less than 2½ years. About one-third spent just a year behind bars.

Drunk drivers are rarely convicted of the most serious charge in fatal crashes, called manslaughter by motor vehicle, the Globe found. That offense, created under Melanie’s Law in 2005, carries a minimum sentence of five years.

At the time, advocates hailed the tougher penalty as a key deterrent against drunken driving. But since 2012, only eight drivers have been convicted of the top charge, according to court statistics. As they did in the Ducharme case, prosecutors often drop the manslaughter charge as part of plea agreements that avoid trials or determine it will be easier to win a conviction on a lower offense.

That has undercut the promise of Melanie’s Law, critics say, and deprived victims’ families of justice.

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“Clearly, something is broken in the Massachusetts judicial system,” said Colleen Sheehey-Church, president of MADD, a national group that lobbies for tougher drunken-driving laws.

“Melanie’s Law is clear: Drunk drivers whose reckless decisions claim yet another innocent life deserve the mandatory sentence allowed. But for some reason, they are being allowed to plead to a lesser charge.

“This is an outrage, and it sends the wrong message,” she said.

But the blame falls not just on prosecutors, according to Richard Saitz, a Boston University professor and specialist in alcohol abuse.

“For some reason, probably because drinking is so ingrained and normal in our culture, society takes its harms less seriously,” he said. “Excessive drinking causes three to four times more deaths every day than do opioids. It’s time to do something about that.”

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Melanie’s Law brought extensive changes to the state’s drunk driving laws, making them among the nation’s toughest — at least in theory. Most notably, it mandated vehicle ignition locks for repeat drunk drivers, a deterrent credited with keeping many chronic offenders off the road.

But the mandatory five-year sentence the law created has rarely been imposed.

“Effective policies to prevent drunk driving are important, but enforcing them is just as important,” said Timothy S. Naimi, a physician and researcher at Boston Medical Center who specializes in substance abuse policy. “My sense is that Massachusetts needs to do better publicizing, prosecuting, and enforcing alcohol policies.”

Ron Bersani, who campaigned for Melanie’s Law for more than two years after his 13-year-old granddaughter was killed by a drunk driver while walking home in 2003, called it “enormously frustrating” that the law has led to relatively few convictions.

“I don’t know what it’s going to take to make drunk driving totally unacceptable in our society,” he said.

The Ducharme case, he said, was a glaring symbol of society’s failure to protect the innocent and punish those responsible for their deaths.

“To have someone driving at three times the legal limit for alcohol, at twice the speed limit, and kill someone, that’s outrageous conduct and deserves severe punishment,” he said. “By his actions, Ducharme put everyone on the road at risk of death.”

The Northwestern district attorney’s office, which prosecuted the case, defended the plea agreement, noting that Ducharme accepted responsibility for the crash and had no previous criminal record.

Wesley Schutt was a passenger in Ducharme’s car when he was killed. Ducharme was driving at 60 miles per hour down a winding back road when he lost control of his car.

Steven E. Gagne, Northwestern’s first assistant district attorney, said he understands the perception that “a two-year sentence pales in comparison to a life lost.”

But drunken-driving cases like Ducharme’s often defy easy answers, he said.

“I don’t disagree Ducharme’s conduct was reckless,” he said. “But not every case is automatically a Melanie’s Law case. Sometimes there’s a place for compassion in the course of justice.”

Ducharme was indicted under Melanie’s Law, which requires proof of “reckless and wanton” conduct, a high bar for conviction.

In accepting Ducharme’s guilty plea to motor vehicle homicide, a lower offense that carries a minimum sentence of 2½ years, prosecutors weighed the possibility of losing at trial, Gagne said.

Despite his high blood-alcohol level, Ducharme did not appear to be drunk at the scene, witnesses said. And even “in the most sure-fire, slam-dunk cases,” juries can deliver unexpected verdicts in drunk driving crashes, Gagne said.

Motor vehicle homicide requires proof that a driver was impaired and operated his vehicle so “recklessly or negligently” that it caused a death, a lower threshold. In more than 75 percent of adjudicated cases over the past five years, drivers are convicted of this offense. They are typically sentenced to two and a half years, which allows them to serve their terms in houses of correction rather than a state prison.

In about 15 percent of cases, drivers are convicted of the lowest offense, a misdemeanor version of motor vehicle homicide, which requires proof of impairment but not recklessness or negligence.

They are sentenced to an average of 10 months behind bars.

Andrew DiCarlo Berman, a criminal defense lawyer in Braintree who specializes in drunken-driving cases, said that many jurors hold some sympathy for drunk drivers, even those responsible for fatal crashes.

“Defendants in many cases are good people who made poor choices,” he said.

“These are not hardened criminals but people who made a mistake. Many of us have done things like drinking and driving and gotten away with it. So for jurors it can be a case of ‘There but for the grace of God go I.’ ”

But relatives of victims often find the sentences woefully lacking.

In 2012, the distraught family of a man killed by a drunk driver in Salem had to be escorted from the courtroom after protesting a one-year sentence for the driver. The driver had a blood-alcohol level of 0.14 when she drove off the road and hit a parked truck, killing her passenger.

The state’s legal limit is 0.08.

Three years later, a Dennis man received an 18-month sentence after pleading guilty to killing a passenger when he lost control of his car while drunk and traveling “at an extremely high rate of speed” in Yarmouth. Police found alcoholic beverages inside the crushed car.

Later that year, a Dorchester man convicted of killing a father of two young children when he swerved into oncoming traffic while drunk at 6 a.m. in the Blue Hills Reservation was sentenced to 15 months.

When impairment is involved, prosecutors look at a driver’s level of culpability, based on the many variables at play, from speed and level of intoxication to criminal history.

“It all depends on the severity of the conduct,” Berman said.

Nationally, penalties for drunken-driving homicide vary widely and allow for significant judicial discretion. Many states have no minimum sentence, but several have stricter penalties for the most serious offenses. Arkansas, for example, has a minimum five-year sentence for negligent homicide, and Rhode Island has the same minimum for motor vehicle homicides, according to MADD.

In Tennessee, drivers convicted of vehicular homicide must serve at least eight years.

Worcester District Attorney Joseph D. Early Jr. prosecuted three of the eight cases brought under Melanie’s Law since 2012, including charges against Nicolas Dutan Guaman. An immigrant from Ecuador living illegally in the United States, Guaman was found guilty of being drunk in 2011 when he collided with a motorcycle and dragged the rider to his death. He was sentenced to 12 years in prison.

Early’s office also secured a nine-year prison sentence for a drunk driver who fatally struck a brother and sister as they unloaded groceries from their car in 2015. The third case involved a repeat drunk driver whose blood-alcohol level was above 0.20 when he rolled his car and killed a passenger in 2012.

Early said Melanie’s Law is reserved for the most egregious conduct and should be used with discretion. A recent appeals court ruling in the Guaman case defined that conduct as behavior that involves a “high degree of likelihood that substantial harm will result,” not merely “a mistake in judgment.”

“Sometimes the conduct does not rise to that level,” Early said.

Prosecutors say that verdicts, and sentences, in drunken-driving cases are unpredictable.

The Suffolk district attorney’s office has successfully prosecuted a drunk driver who killed a teenager waiting to cross the street in Dorchester and was sentenced to eight years, and a repeat drunk driver who killed his passenger in Hyde Park and tried to hide in the woods. He was sentenced to seven years behind bars.

But prosecutors have also been frustrated by juries that refused to convict defendants of the most serious charges, including a motorist who killed a pedestrian while driving in reverse in Mattapan and a driver who killed a passenger while his blood-alcohol level was 0.37.

“What really matters is accountability,” said Dan Conley, the Suffolk district attorney. “We’re here to say it’s not OK to speed down a residential street while blind drunk and hurt or kill someone — and we need the public’s help.”

After the South Hadley crash, Ducharme told police “I just killed my best friend.” A 46-year-old business owner, he had recently completed an alcohol detoxification program.

In the rural neighborhood where Ducharme ran his car off the road on a warm June afternoon, some residents said he deserved far worse. Joel Tillman ran to the scene after hearing a tremendous crash. Ducharme, bloody and distraught, begged him to “save his friend’s life,” he recalled.

“But it was obvious he was already dead,” he said.

No one in his right mind would drive 60 miles an hour on such a narrow, curvy road, he said.

“Unless we don’t value human life, that sentence was way off,” he said. “It’s an indictment of our criminal justice system that they can compromise on a sentence. Even five years would be a light sentence, but at least it would have been something.

“Two years? The scales of justice were way off on that one.”

Sean P. Murphy can be reached at smurphy@globe.com. Follow him on Twitter @spmurphyboston.