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opinion | Daniel Medwed and Michael Meltsner

Time to end mandatory minimum sentencing

The long-simmering debate over mandatory minimum sentencing in Massachusetts has reached a boiling point.

Chief Justice Ralph Gants of the Supreme Judicial Court has admirably lobbied against mandatory minimum sentencing in drug cases, a legislative proscription that compels judges to sentence drug offenders to a minimum amount of time in prison without the ability to impose a more lenient punishment if warranted. As Gants has aptly noted, this one-size-fits-all philosophy has produced absurd results, including draconian sentences for relatively benign offenses, equally harsh terms for low-level drug couriers as for major drug lords, and disproportionately harsh effects on people of color. Earlier this week Suffolk County District Attorney Daniel Conley blasted Gants and defended mandatory minimum sentencing. He attributed the recent decline in crime rates at least partially to such sentencing and noted that a departure from that approach would be a return to the failed policies of a bygone era. But Conley’s claims are misguided.


In our criminal justice system, prosecutors wield near absolute power. They determine which and how many criminal charges to file, with a grand jury typically rubber stamping the charges. Prosecutors then decide whether to offer a plea bargain and dictate its conditions. Given that more than 90 percent of criminal cases are resolved through pleas rather than trials, these choices by prosecutors effectively determine the outcome of the vast of majority criminal cases, even if judges nominally oversee the entry of the plea. In the words of one scholar, ours is a system of “prosecutorial adjudication.”

Traditionally, when a case went to trial and resulted in a conviction, judges were tasked with tailoring sentences to match the offender’s characteristics, making sure “the punishment fit the crime.’’ Now, however, when the prosecutor puts in play a charge that requires a mandatory minimum sentence, individualized justice is radically circumscribed.

Are there any benefits to mandatory minimum sentencing? By incapacitating drug offenders through imprisonment, to be sure, those particular people are no longer in a position to commit crimes on the streets, but at what cost? First, the bulk of the scholarly research suggests that mass incarceration does not have a significant impact on overall crime rates. A recent report by New York University’s Brennan Center concluded that since 2000 “increased incarceration had a negligible effect on crime.” In the introduction to the report, Nobel laureate Joseph E. Stiglitz added that our “present prodigious rate of incarceration is not only inhumane, it is economic folly.”


Second, there is the exorbitant financial cost of incarcerating nonviolent drug offenders in state correctional facilities — the average cost per year to house an inmate in 2014 in Massachusetts was $53,040. Third, there is the reality that those offenders will eventually be released into society after years behind bars, with any underlying personal problems largely untreated.

Perhaps our money is better spent on treating the symptoms that give rise to drug offenses —addiction, poverty, discrimination — through rehabilitation rather than incarceration. And even if incarceration is warranted in certain drug cases, as it surely is, then shouldn’t that decision rest with the judge? After all, our system is adversarial, and the prosecutor represents one side of the equation while the judge’s role is to ensure impartiality. The judge is the one person for whom the public interest is paramount and supposedly untainted by any need to appear tough on crime.

Mandatory minimum sentencing is unjust, expensive, and unwise, especially in the context of drug cases. Judges should be allowed to adjudicate in a sphere in which they are in the best position to do so: sentencing.


Daniel Medwed and Michael Meltsner are professors at Northeastern University School of Law.


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