Voice of the Judiciary
Sentencing reform is now at the center of debate in Massachusetts. A reconstituted Massachusetts Sentencing Commission is reviewing state sentencing guidelines. Chief Justice Gants of the Supreme Judicial Court has called for the elimination of mandatory minimum sentences for drug crimes. The debate is a welcome development. I come to this judgment from my experience not only as a trial judge of thirty years in the Commonwealth and in the Federal Courts, but also as the Chair of the United States Sentencing Commission. I write on my judicial perspective on mandatory minimum sentences with the hope that the federal experience with mandatory minimums and guidelines will be helpful in the state’s reform discussion.
In 2011, the United States Sentencing Commission, an independent, bipartisan agency, unanimously reported to Congress that current mandatory minimum penalties, particularly for drug offenses, contribute to growing prison populations and can lead to unfair results. In the past several years, the Commission has prioritized reducing incarceration costs and prison overcapacity. Last year, the Commission reduced drug penalties and made that change retroactive, making up to 40,000 incarcerated offenders eligible for early release by an average 25 months.
The Commission’s 2011 report to Congress on mandatory minimum penalties determined that some mandatory minimum provisions apply too broadly, are set too high, or both. The Commission found that their use, particularly in the drug context, contributed significantly to over-incarceration. The Federal Bureau of Prisons is more than 38 percent over-capacity. Federal prisons and detention pending trial cost well over $6 billion a year and account for about a quarter of the overall Department of Justice budget. This means fewer resources for law enforcement and other key public safety programs. The number of offenders in federal prison convicted of an offense carrying a mandatory minimum penalty increased from 40,104 offenders in 1995 to 111,545 in 2010, an increase of 178.1 percent. Drug offenders currently make up 51 percent of those in federal prison and comprise the majority of those offenders subject to mandatory minimum penalties.
The Commission found that certain severe mandatory minimum sentences lead to disparate charging decisions by prosecutors and to vastly different sentences for similarly situated offenders. These differences were particularly acute with respect to filing notices under section 851 of title 21 of the United States Code for drug offenders with prior felony drug convictions, which generally doubles the applicable mandatory minimum sentence. In some districts, filing was routine. In others, it was more selective, and in one district it was almost never filed at all.
We further found that, in the drug context, mandatory minimum penalties often resulted in severe sentences for lower-level offenders, rather than just for the high-level drug offenders who it appears Congress intended to target. For example, a courier may be carrying a large quantity of drugs, but may be a lower-level member of a drug organization. The Commission found that 23 percent of all drug offenders were couriers, and nearly half of these were charged with offenses carrying mandatory minimum sentences. The category of drug offenders most often subject to mandatory minimum penalties at the time of sentencing were street-level dealers, who were many steps below high-level suppliers and leaders of drug organizations.
In addition, Black offenders were much less likely to get “safety valve” relief from mandatory minimum penalties than other offenders and therefore were more likely to remain subject to those mandatory minimum penalties. Only about 14.4 percent of Black offenders qualified for safety valve relief compared to 46.3 percent of Hispanic offenders and 39.5 percent of White offenders. This difference is largely attributable to the criminal history of Black drug offenders. About three quarters of Black drug offenders convicted of a drug offense carrying a mandatory minimum penalty had a criminal history score of more than one point under the sentencing guidelines, which disqualified them from application of the safety valve.
Significantly, the Commission has found that, in at least some circumstances, modestly reducing drug sentences did not make it more likely that people would commit new crimes or less likely that they would plead guilty or cooperate with authorities. Crack cocaine offenders we studied, who were released in 2008 after having their sentences reduced by more than two years because of an amendment to the sentencing guidelines, had a 30.4 percent recidivism rate. The group of similarly situated offenders who had served their full sentences had a 32.6 percent recidivism rate.
Moreover, the overall rates at which these defendants pleaded guilty remained relatively stable after crack cocaine penalties were reduced. In the fiscal year before the 2008 amendment took effect, the plea rate was 93.1 percent, and in the two consecutive fiscal years following effect, the plea rate was 95.2 percent and 94.0 percent. Similarly, in the fiscal year before the amendment took effect, the overall rates at which crack cocaine defendants received substantial assistance departures for their cooperation with law enforcement was 27.8 percent, and in the two consecutive fiscal years afterward, the substantial assistance departure rate was 25.3 and 25.6. Thus, while some prosecutors have worried that reducing drug penalties would affect the incentive to cooperate, this reduction did not appear to have that result.
While there was a spectrum of views among the Commissioners as to whether mandatory minimums are a good idea, the Commission has unanimously recommended statutory changes to reduce and limit mandatory minimum penalties. These recommendations include the following:
- Congress should reduce the length of current mandatory minimum penalties for drug trafficking.
- Congress should consider expanding the so-called “safety valve,” allowing sentences below mandatory minimum penalties for non-violent, low-level drug offenders, to offenders with slightly greater criminal histories than the currently narrow requirements permit.
Congress is now considering bipartisan legislation consistent with these recommendations. Many states, like California, Texas, South Carolina and others, have recently reconsidered their sentencing policies and been able to reduce prison populations and save money without increasing crime.
It is important to note that while the Commission has recommended reducing the mandatory minimum penalties, it continues to believe that guidelines can reduce unwarranted disparity among judges and increase fairness in sentencing. The federal courts have advisory guidelines that provide a strong anchoring effect in most federal cases. In a 2013 survey of federal district judges, we learned that more than three-quarters of judges prefer advisory guidelines to any other sentencing system — including one with no guidelines.
As a veteran of the Superior Court, I think that the federal experience is very relevant to the current Massachusetts debate on issues of over-incarceration and sentencing proportionality. I believe that the work of the United States Sentencing Commission can help inform that discussion and the urgent need for reform. Fairness and sound public policy are powerful arguments, indeed.
United States District Judge Patti B. Saris is the Chair of the United States Sentencing Commission and the Chief Judge of the United States District Court for the District of Massachusetts. Judge Saris was an Associate Justice of the Massachusetts Superior Court before her appointment to the United States District Court.
Voice of the Judiciary
The role of the Judiciary is not only to do justice but to solve problems, and the sensible resolution of problems often is how we do justice. Working in close partnership with the trial court leadership team of Chief Justice Paula Carey and Court Administrator Harry Spence, we are committed to four new initiatives that we hope will assist us in our efforts to solve problems and do justice. The judiciary, however, can achieve none of these alone; each requires collaboration with and the support of the Legislature, the Executive branch, and the Bar.
Our first initiative is in the area of sentencing reform. We need our sentences not merely to punish and deter, but also to provide offenders with the supervision and the tools they will need to maximize the chance of success upon release and minimize the likelihood of recidivism. I have asked every trial court department with criminal jurisdiction to recommend protocols for their department that will incorporate best practices, informed by social science evidence regarding which sentences reduce the risk of recidivism and which may actually increase that risk. Further, I will work with the Legislature and encourage them to abolish mandatory minimum sentences for drug offenses in favor of individualized, evidence-based sentences that will not only punish and deter, but also minimize the risk of recidivism by treating the root of the problem behind many drug offenses — the problem of addiction.
The impact of mandatory minimum drug sentences is far greater than the number of defendants who are actually given mandatory sentences. Prosecutors often will dismiss a drug charge that carries a mandatory minimum sentence in return for a plea to a non-mandatory offense with an agreed-upon sentence recommendation, and defendants often have little choice but to accept a sentencing recommendation higher than they think appropriate because the alternative is an even higher and even less appropriate mandatory minimum sentence. As a result, where there is a mandatory minimum sentence, a prosecutor’s discretion to charge a defendant with a crime effectively includes the discretion to sentence a defendant for that crime.
Mandatory minimum sentencing in drug cases has had a disparate impact upon racial and ethnic minorities. In 2013, which is the most recent year for which data are available, racial and ethnic minorities comprised 32% of all convicted offenders, 55% of all those convicted of non-mandatory drug distribution offenses, and 75% of all those convicted of mandatory drug offenses. I do not suggest that there is intentional discrimination, but the numbers do not lie about the disparate impact of mandatory minimum drug sentences.
I expect that the abolition of mandatory minimum sentences in drug cases would likely result in some reduction in the length of incarceration in drug cases. This would free up money that could be reinvested in programs proven to reduce the rates of recidivism, in treatment programs, and in long overdue salaries increases for assistant district attorneys and CPCS attorneys.
Our second initiative involves our civil justice system. We will develop a menu of options in civil cases to ensure that litigants have cost-effective means to resolve their dispute in a court of law. I do not want a Commonwealth where those with a civil dispute think that they can resolve it efficiently and sensibly only through private arbitration rather than in our civil courts. Arbitrators generally do not publish their decisions; they make use of our common law but they generally create none of their own. If complex and difficult cases no longer come to our courts, our common law does not adapt and evolve, and our legal infrastructure becomes old and outdated. We must ensure that our courts through our published decisions, especially our appellate decisions, continue to create the common law that is the legal infrastructure of our civil society.
I have asked each trial court department to devise a menu of litigation options appropriate to the cases adjudicated by that department. That menu will include the full range — from the “three course meal” option including full discovery, a jury trial (in cases where there is a right to jury trial), and full rights of appeal, to less costly and more expeditious “a la carte” options that might offer, for instance, limited discovery, a bench trial, and, perhaps, limitations on the right or scope of appeal. With a menu of options in each department, litigants can agree on the option that makes most sense in their case, with the three course meal the fallback option if they are unable to reach agreement.
Our third set of initiatives focuses on access to justice. It is not enough to establish legal rights; we need our residents to know their rights, to know how to invoke them, and to know how to find the legal assistance or information that can help them to do so. We will soon make available to all litigants an information sheet that will help self-represented litigants find the legal resources that are available to them, including lawyer for the day programs, voluntary mediation services, limited assistance representation, and court service centers, where available. We plan to expand access to court service centers by adding four more in the coming year, and to have one in each of our fifteen largest courthouses, which serve half the litigants in the Commonwealth, by 2017. Finally, we will propose legislation to give every resident of Massachusetts access to a Housing Court. Currently, nearly one-third of our residents have no such access, which means that they have no access to Housing Court judges, housing specialists, the Tenancy Preservation Program, and no forum to enforce building and safety codes efficiently.
Our fourth initiative involves jury voir dire. An SJC Committee chaired by my colleague, Justice Barbara Lenk, is working to improve the quality of jury voir dire — to give attorneys a meaningful role in the selection of a fair and impartial jury while, at the same time, protecting the privacy and dignity of our jurors, and respecting our need to try cases in a timely and efficient manner. We shall improve the quality of voir dire in every court department, recognizing that a method of voir dire that may be sensible in one trial court department may not be sensible in all.
By February, 2015, when St. 2014, c. 254, sec. 2 takes effect, an interim Superior Court standing order will establish protocols for attorney participation in voir dire in that department. The Superior Court will also establish a pilot project in which judges who volunteer to do so will conduct “panel voir dire.” The Superior Court and the SJC Committee will monitor response to both the interim standing order and the pilot project and then make further recommendations.
As I said when I was sworn in — if we are willing to search for new ways to solve old problems, if we are willing to put our egos aside and remember that it is not about us, if we are willing to work our tails off, if we are willing to work together, I know that we can build a justice system that will not only dispense fair, sensible, and efficient justice, that will not only help to address the formidable problems faced by so many of the residents of this Commonwealth, but that will be a model for the nation and for the world.
Ralph D. Gants is the Chief Justice of the Supreme Judicial Court. Chief Justice Gants was appointed as an Associate Justice of the Superior Court in 1997 by Governor William Weld. Governor Deval Patrick first appointed him as a Justice to the Supreme Judicial Court in January 2009. In July 2014, he was appointed as the thirty-seventh Chief Justice by Governor Patrick.