A legislative proposal that could allow hundreds of drug dealers to be released from prison early is drawing vehement opposition from Governor Charlie Baker and top Massachusetts prosecutors.
The proposal is included in a new version of the Massachusetts Senate’s sweeping criminal justice bill released Thursday. It would not only do away with mandatory minimum sentences for many drug crimes but would also apply the new requirements retroactively.
That means about 400 inmates currently serving time for crimes such as trafficking cocaine or methamphetamine would become eligible to earn deductions in their sentences and apply for parole if the legislation becomes law, according to the office of Senator Karen E. Spilka, who crafted the newest version. The bill is set for a vote before the full Senate on Thursday.
“Governor Baker opposes legislation that would let convicted heroin and other drug dealers walk out of prison early, sending them back into Massachusetts neighborhoods at a time when the nation is battling a deadly opioid crisis,” spokeswoman Lizzy Guyton said.
“I just don’t see any appetite in the public for releasing drug dealers in the midst of this opioid crisis,” Cape and Islands District Attorney Michael O’Keefe said. “It just doesn’t make sense.”
The veteran prosecutor, who has concerns about several aspects of the bill, said “suggesting that we ought to be going easier on the very people who are pouring these substances into our communities” is antithetical to stopping the scourge of overdoses.
But Spilka said making the repeal of mandatory minimum sentences for drug-related crimes retroactive is constitutional, was done before in a 2012 state crime law, and is important for equity.
“We should be treating people who have done the same crime the same way, and giving them the same opportunities for fairness,” she said in a telephone interview. The bill is “not saying they have to be let out early, but there’s the opportunity in consideration of each individual case to be let out, and get the services and programs that hopefully will reduce recidivism.”
The original version of the bill, crafted by Senator William N. Brownsberger, who cochairs the judiciary committee, did not include the retroactive language
According to an explanation of the bill from Spilka’s office, the new provision is expected to affect about 400 inmates. But some of those inmates are serving time for other crimes as well, which could limit their ability to earn early release. The document estimated that the state “can expect to save approximately $4,000,000 to $8,000,000 in inmate supervision costs” from all the people who are released early.
Under the bill, inmates would be able to earn release weeks or months early through participation in educational programming. They could also ask the Parole Board to let them out of prison.
But Brownsberger indicated that last provision might not have the effect the Senate desires.
“We do not intend that people who are serving duly imposed sentences should be immediately eligible for parole regardless of the time they have served,” he said in an e-mail. “Rather, they should be eligible to start earning good time. We will continue to work with all stakeholders on this issue.”
The bill can still be amended during the debate Thursday.
Under current law, judges are required to sentence 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, giving judges and parole board members much wider discretion on how long a man or woman convicted of such crimes should be locked up.
Section 231 of the Senate criminal justice reform bill:
Advocates say mandatory minimums are a failed tactic from the war on drugs, one that has unnecessarily ensnared generations of people, particularly from communities of color, in the criminal justice system. States around the country are paring back “tough on crime” laws for nonviolent offenses, emphasizing diversion and rehabilitation instead of locking people up.
And at least two key prosecutors in Massachusetts — including Middlesex District Attorney Marian T. Ryan, the top law enforcement official in the state’s most populous county — have expressed openness to a legislative repeal of some mandatory minimum sentences for nonviolent drug offenses.
But that was before the bill was changed to make the repeal retroactive. A Ryan spokeswoman did not offer a comment on the provision in response to e-mails seeking one.
Other law enforcement officials are speaking out, however.
“The change that they are proposing is going to let traffickers and dealers out,” Norfolk District Attorney Michael W. Morrissey said. “That is of some concern.”
Giving people already in prison a chance for earlier release is not without precedent in Massachusetts.
A 2012 crime law allowed 600 nonviolent drug offenders to plead their cases to the Parole Board, then-governor Deval Patrick said at the time.
But the Massachusetts Constitution limits how far the Legislature can go in changing punishments meted out by the judiciary branch. Lawmakers cannot, for example, undo an existing sentence imposed by a judge.
“The legislative department shall never exercise the executive and judicial powers,” the Constitution mandates, “to the end it may be a government of laws and not of men.”
But, lawyers familiar with the issue say it is legally kosher for the Legislature to allow incarcerated individuals to use some existing legal mechanisms to get out earlier.
The broader Senate criminal justice bill is sweeping. It would make changes to everything from when consensual sex is illegal between teens to how often men in the state’s toughest solitary confinement get a hearing.
The House of Representatives is expected to soon release its own wide-ranging criminal justice proposal.
Joshua Miller can be reached at firstname.lastname@example.org.