The Kickham Comment - Boston Criminal Attorney Blog
Readers of this blog know my disdain for mandatory sentencing, whether for Massachusetts drug offenses, or a variety of other crimes. I’ve blogged previously about this subject, on more
than one occasion.
Some headway was made on this subject just the other day, when U.S. Attorney General Eric Holder endorsed proposals made by an independent commission, to shorten prison sentences for nonviolent drug offenders, and provide judges with more discretion in sentencing. Holder offered his endorsement in appearing before the U.S. Sentencing Commission, which is an independent agency that sets criminal sentencing policies. If you haven’t read any of my previous posts on mandatory sentencing, these laws handcuff judges after a guilty verdict is returned by a jury: The judge must sentence the defendant to the minimum stated by a statute – regardless of the facts or circumstances surrounding the case. He or she has no choice. The number of injustices this approach has created, are many and troubling. This is true for a variety of drug crimes: Massachusetts drug possession charges, Massachusetts drug trafficking charges, Massachusetts Drug Possession with Intent to Distribute charges, even Massachusetts marijuana charges. (Many Massachusetts residents still don’t know that possession of more than one ounce is still a crime in this state – and the police love to find people with anything over one ounce – even 1.1 ounces.)
Care for just one example, or think this couldn’t happen to someone you know? Exhibit A: Massachusetts school Zone drug offenses. Laws like this provide that if a drug crime occurs within a set number of feet from a “school zone” – which is pretty much ¾ of any average city or town – a convicted defendant must be sentenced to a mandatory minimum sentence. Laws like this were passed to “crack down” on major dealers who sold to our recruited school kids. Sound good in theory, but what outcomes can that produce in practice? Consider the following all-too-real example: Someone sells two ounces of marijuana to a friend, with no intention of “trafficking” or “distributing” on any kind of a “dealer” level. Just one friend selling to another, for purely recreational purposes. But the transaction took place within the boundaries of a school zone: If the defendant were found guilty, bam – the judge has no choice but to sentence that person to a severely long mandatory jail sentence.
How’s that strike you? These types of legal outcomes can and do happen.
So I’m glad to see that some headway is being made to hopefully stop this practice. The war on drugs in this country – whether on the federal or state level – has been a massive, abysmal, embarrassing failure. That is not just my own professional opinion, as a Boston Massachusetts drug crimes lawyer. It’s a fact that has been recognized by expert after expert, commission after commission, even a national group of law police and law enforcement officers who are dedicated to bringing an end to the madness that current criminal drug laws produce – Law Enforcement Against Prohibition, (LEAP.) I hope you recognize the word “Prohibition” in the title of this admirable organization” Criminalizing (as opposed to medically treating) drug use has done NOTHING but produce the same black markets, drug cartels and the crime that alcohol prohibition produced 80+ years ago.
The average person has no idea how much money or taxpayer resources go in to prosecuting and incarcerating drug defendants. It’s stunning and it’s scary. Did you know that over 50% of all federal prisoners are behind bar for drug offenses – almost 8.000 – and worse, that most of them are nonviolent drug offenders? The space in our prisons should be reserved for violent criminals – of whatever kind, not for nonviolent drug offenders.
Holder previously instructed U.S. prosecutors last August to stop charging many nonviolent drug defendants with offenses that can trigger mandatory minimum sentences. All this is good news, but it applies to federal courts only. When is the Massachusetts Legislature and Massachusetts court system going to wake up and literally wise up to making the same changes in this state? It can’t happen fast enough.