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Mass. bill would eliminate minimum sentences for many drug crimes

The bill’s aim is to “reduce the unnecessary use of incarceration and criminal justice involvement as much as possible, while at the same time allowing law enforcement to focus on the most serious crimes,” said state Senator William N. Brownsberger, the legislation’s sponsor.
The bill’s aim is to “reduce the unnecessary use of incarceration and criminal justice involvement as much as possible, while at the same time allowing law enforcement to focus on the most serious crimes,” said state Senator William N. Brownsberger, the legislation’s sponsor.Suzanne Kreiter/Globe staff

State Senate leaders have introduced sweeping legislation designed to pare the number of people ensnared in the criminal justice system. But the bill, set for a vote this month, is already drawing sharp criticism from some prosecutors and raising profound questions about how the state should define justice in 2017.

Under the legislation, mandatory minimum sentences for several drug offenses — including cocaine distribution and dealing drugs like heroin within 300 feet of a school — would be repealed, giving judges and parole board members much wider discretion on incarceration.

The age of criminal majority would be raised to 19, the highest in the country, meaning all but the most serious offenses committed by 18-year-olds would likely be adjudicated confidentially in front of a juvenile court judge.

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Consensual sex between young people close in age — a 12-year-old and a 10-year-old, or a 19-year-old and 15-year-old, for example — would no longer be a crime. (Currently, having sex with anyone under 16 is against the law.)

And, among scores of other changes, the procession of fees, fines, and license suspensions for people in the criminal justice system would be diminished.

The bill’s aim is to “reduce the unnecessary use of incarceration and criminal justice involvement as much as possible, while at the same time allowing law enforcement to focus on the most serious crimes,” said state Senator William N. Brownsberger, the legislation’s sponsor and the chairman of the Senate Joint Committee on the Judiciary.

But even at this early stage in the legislative process — with the bill facing an uphill climb if it gets to the House — Massachusetts law enforcement officials, such as Cape & Islands District Attorney Michael O’Keefe, are expressing concern.

There are numerous aspects of the bill that “I believe that many of my colleagues in the ranks of district attorneys don’t think are particularly wise,” he said.

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O’Keefe pointed to parts of the bill that relate to “making it easier on people who sell drugs in the midst of this opioid crisis we’re in.”

Under current law, judges are mandated to send those found guilty of certain crimes, including some drug offenses, to a minimum amount of time in jail or prison with no chance of parole. But if the Senate bill becomes law, several of those mandatory sentences would be removed.

The legislation would remove mandatory terms of incarceration for dealing drugs in school zones, a second conviction for dealing hard drugs like heroin, cocaine distribution, and several other drug-dealing crimes based on the weight of drugs the person has. For example, running a methamphetamine lab would no longer trigger a mandatory minimum if the person is found in possession of less than 100 grams of the potent drug.

But the bill would leave minimums in place for those caught with the largest amounts of illicit drugs. And it would leave minimums in place for all opioid dealing crimes involving trafficking.

Senate President Stanley C. Rosenberg voiced strong support for the bill’s removal of some mandatory minimum sentences. He said the data from states that have gone further — getting rid of all drug mandatory minimum sentences — show lower crime rates and fewer people going into jail.

Brownsberger, a former prosecutor and defense attorney, said the vast majority of cases in which people are charged with drug dealing in a school zone are dismissed, and very few of them actually involve sales to a minor.

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The Belmont Democrat said he is trying to draw a distinction between those trafficking massive amounts of drugs and “low-level” drug dealers.

“Many of them are users themselves — you know, buy 100 bags; use 50 myself; sell 50 bags,” Brownsberger said. “We don’t want to clobber them with mandatory minimums, we want to get them into treatment.”

But Essex District Attorney Jonathan W. Blodgett said, “I am more concerned about the 50 people buying drugs from this so-called low-level dealer. They are the true victims of the drug trade, and they are dying at an unprecedented rate in this Commonwealth.”

In an e-mail, he said expanding drug diversion programs, like the one in Essex County, will offer more access to treatment for drug offenders “while also providing accountability which is necessary to protect the safety of the public.”

On the other end of the spectrum, the American Civil Liberties Union of Massachusetts says that the bill’s repeal of mandatory minimums does not go far enough and that legislators ought to repeal all mandatory minimum drug sentences from the law books.

“By keeping mandatory minimums in place for drug offenses, we, as a Commonwealth, are still tying ourselves to a failed tactic from the war on drugs,” said Rahsaan D. Hall, who leads the state ACLU’s Racial Justice Program. “Mandatory minimums, there is no empirical data to show that they work as a deterrent.”

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He also took issue with the bill adding mandatory minimum sentences for dealing fentanyl, the potent opioid.

Suffolk District Attorney Dan Conley praised certain aspects of the bill — the ways it tries to reduce recidivism, for instance — and he expressed openness to the elimination of some drug mandatory minimums. But, he added, “There are certainly some aspects of the bill I am concerned about.”

Another controversial part of the legislation is raising the age of criminal majority from 18 to 19.

Under current law, all 18-year-olds are tried in District Court or Superior Court and are subject to the same penalties as any other adult. The bill would change that so the state’s criminal justice system would treat 18-year-olds like minors.

That’s raised concerns about 18-year-olds having all of the same rights as 19-year-olds, but not having to face the same penalties for committing the same crime.

But Brownsberger said, “It makes a lot of sense to treat all the kids who are in high school the same way.”

Minors from 7 to 17 years old are currently tried in Juvenile Court. Those cases are closed to the public and decided either by a jury of six people or by a judge. As punishment, minors can be sent to Department of Youth Services facilities until their 18th birthday, but not to county jails or state prisons with adults.

Prosecutors can also ask a grand jury to indict 14-, 15-, 16-, or 17-year-olds as youthful offenders, who are tried in open court and can receive adult sentences. But a minor can be tried as a youthful offender only if he or she has previously been committed to the Department of Youth Services or is alleged to have committed a major offense, such as ones involving violence. (Any minor 14 or older charged with murder is tried as an adult.)

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Rosenberg said scientific research shows young people’s brains keep maturing into their 20s, so it would be appropriate for the law to acknowledge that evolution by raising the age of criminal majority from 18 to 19.

“I don’t believe this is ‘liberal goo-goo,’ ” he said. “It’s what scientists, brain scientists, and researchers tell us are the facts around the development of the human brain and how people’s behavior can be affected by that.”

Among other key provisions, the Senate bill, expected to be amended and passed in that chamber, would also:

■  Create a “Romeo and Juliet” law, so consenting teens close in age who have sex are not committing statutory rape.

■  Require judges to make written findings before putting the primary caretaker of children in jail or prison.

■  Reduce driver’s license suspensions for nondriving events like missing a court appearance.

The state’s top law enforcement official, Attorney General Maura Healey, called the legislation “a major step towards achieving comprehensive criminal justice reform.”

But, assuming it passes, the language faces an uncertain future in the House, a more conservative chamber. House leaders aim to release and pass a criminal justice package before Thanksgiving.

When asked about the more controversial aspects of the Senate bill, O’Keefe, the Cape and Islands district attorney, said: “I’ll be interested to see what the House thinks about all of this. Quote me on that.”

Josh Miller can be reached at joshua.miller@globe.com. Follow him on Twitter @jm_bos.