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Senate Bill 167 also dovetails with a much larger reform effort that would moderate the mandatory-sentencing drug laws. That bill, known as House Bill 3302, would institute a comprehensive set of sentencing guidelines for all the state’s 1922 statutory crimes. Under the guidelines, judges would be allowed to depart from the rigid penalties dictated by the mandatory-sentencing drug laws and instead sentence addicts to treatment and intense supervision. The bill, sponsored by State Representative David Linsky (D-Natick), mirrors legislation first drafted seven years ago by the Massachusetts Sentencing Commission, a state agency dedicated to overhauling the criminal-justice system — legislation that has died at the State House every single session since.

But in these tough fiscal times, such sentencing reforms are gaining ground. Senate Bill 167, in fact, has extra appeal. According to the Sentencing Commission, approximately 2000 prisoners are currently serving mandatory minimums — out of close to 20,000 county and state prisoners. Of those, 650 people would be eligible for parole immediately if Senate Bill 167 were to pass. The commission estimates that up to 325 of these drug offenders would receive parole in the first wave. Given that it costs $36,000 per year to house one prisoner, the measure could save as much as $11.7 million almost instantly. These savings were highlighted at a packed, 100-strong May 21 hearing on the two bills before the legislature’s Joint Committee on Criminal Justice — which is expected to recommend the bills in upcoming weeks. Numerous organizations, including the Sentencing Commission, the Supreme Judicial Court, and local and state bar associations, spoke in favor of the proposed legislation. Those who attended the hearing say committee members repeatedly questioned the cost of the current drug policies. Even the state’s district attorneys, who’ve consistently opposed loosening mandatory minimums, seemed willing to compromise. Although the district attorneys reject Senate Bill 167 and House Bill 3302, they have expressed a willingness to modify certain mandatory minimums.

For those who back sentencing reform, the state’s ballooning budget crisis has opened a window of opportunity. Advocates who’ve long criticized the mandatory-drug-sentencing policies are seizing on the existing climate as a chance to change hearts and minds among fiscal conservatives and unlikely political allies. As Lynn Holbein, a member of the local chapter of Families Against Mandatory Minimums (FAMM), puts it, "Today, there’s opportunity in the midst of our budget crisis. Politicians who were unwilling to make these decisions based on what’s right may do so based on money." After all, she aptly points out, "Money has a way of causing introspection."

THERE’S NO doubt that the state’s mandatory-minimum-sentence drug laws need revamping. As it stands, Massachusetts’s mandatory sentences for drug convictions rank among the harshest in the nation. Trafficking in as little as 14 grams of cocaine — an amount equal in volume to 14 packets of sweetener — gets you three years behind bars. If you’re convicted of selling those 14 grams near school property, you get another two years. If you’re convicted of possessing those 14 grams with intent to sell to minors, it’s an additional three years on top of that. And all this happens automatically.

This rigid, one-size-fits-all approach to criminal justice — an approach that shifts discretion from judges to prosecutors, who choose what charges to pursue in the first place — has long come under fire. These laws lump disparate behaviors and people into neat categories, with no room for common sense. As a result, people who deserve less severe penalties are left languishing in jail cells for decades. People who had never broken the law before. People who had unwittingly dated a drug dealer. People whose habits put them at the wrong place at the wrong time. In Massachusetts, first-time, nonviolent drug offenders routinely spend more time behind bars than rapists and child molesters. Says Martin Rosenthal, of the Massachusetts Association of Criminal Defense Lawyers (MACDL), who’s pushed to repeal mandatory minimums for drug convictions since 1990, "Nobody likes to talk about the huge injustices. The poor drug mules and petty dealers who go away for 10, 15, and 20 years." Count Charles Ginsberg among the lot. A Web-page designer from Arlington, Ginsberg, 53, spent most of the 1990s locked up in a tiny cell in a Georgia penitentiary, serving a 10-year mandatory sentence for conspiring to sell marijuana. Because the "conspiracy" in question extended beyond Massachusetts, Ginsberg, a Winthrop native, was sentenced under federal mandatory-minimum laws, which, unlike the state’s, allow offenders to earn "good time" for early release. After nearly nine years and the successful completion of a drug-treatment program, he managed to shave six months from his prison term. Nevertheless, Ginsberg considers his punishment "out of whack" with his crime.

It’s not as if he didn’t sell pot. Indeed, he readily admits he became the pot dealer of choice for customers in and around Winthrop. "But I was a small fish in a big tank," he says. At the time of his November 1991 arrest — when a buyer who’d been charged with conspiracy to sell gave him up — Ginsberg had been in trouble with police only once, when, at 19, he was arrested for possessing pot. He had never owned or fired a gun. Two years before his arrest, he had stopped selling marijuana at all. And so, he says, "I didn’t deserve 10 years. If you’re a small fry and you don’t hurt anyone, I see no reason to go to prison that long." Ginsberg’s time behind the wall provided him with firsthand lessons on the failed results of mandatory minimums — not just the injustices of their severity, but also the racial disparities they deepen. More than 80 percent of people convicted under Massachusetts’s mandatory-sentencing drug laws are minorities, according to the Sentencing Commission. And the same holds true at the federal level — even though blacks and Latinos consume drugs at the same rate as whites. Ginsberg recalls meeting black and Latino men who’d done, as he puts it, "a lot less than me," yet faced much stricter penalties. Some were teenagers who had run with the wrong crowd, gotten caught with an ounce of crack, and been sentenced to 20 years. Others smoked joints inside their homes in cities, like Boston, where entire neighborhoods fall within a school zone. The experience left him convinced of the need for reform. He adds, "I feel a duty to speak out with whatever breath I have in me."

So does Nancy Brown, who heads the New England chapter of FAMM. Brown got involved in FAMM back in 1991, when her son, then 20, was charged with conspiracy to transport a controlled substance across state lines. When she heard her son, who had followed the Grateful Dead, was facing a 10-year mandatory, "I was floored," she says. "I thought, ‘Oh, my God. He must have killed someone.’" On the contrary, her son, whose name Brown asked the Phoenix not to publish, had sent an envelope containing several tabs of LSD through the mail to a friend. To this day, the sentence — which her son served in various penitentiaries until his 1999 early release for good behavior — strikes Brown as extreme. She explains, "My son used illegal substances and should pay the consequences." Yet for a young college student who’d never been in trouble, she adds, "the sentence did not fit his crime."

It’s a message that Brown and FAMM advocates have tried to send to Massachusetts legislators for years now. Ever since 1996, when the Sentencing Commission composed its set of comprehensive sentencing guidelines, advocates have fought to ease mandatory drug sentences — to no avail. When it comes to these sentences, the commission’s recommendation seems nothing if not modest: it would simply give judges discretion to sentence drug offenders to less than the mandated minimum. By having to provide written reasons for the departure, judges would be held accountable. And prosecutors could appeal such decisions at any time.

Despite these safeguards, the law-and-order brigade has sounded off against the commission’s guidelines in every legislative session since 1996. Legislators and prosecutors have criticized the measure as too soft — principally because it eliminates mandatory minimums for drug convictions. Last legislative session, however, reformers came closer than ever to success. In October 2001, the Criminal Justice Committee reported favorably on a tinkered version of the commission’s guidelines, one that would have allowed for some deviation from mandatory sentences for drug convictions. The bill specified "six mitigating circumstances" under which a judge could veer from the mandated minimums — if, for instance, a defendant has little or no prior record, is a minor player in the offense, and didn’t cause grave injury or death. Later that month, then–House minority leader Francis Marini led the effort to tighten the guidelines with an amendment that would have ratcheted up punishment for 30 crimes, from weapons possession to child molestation, but that would have left the drug-sentencing-reform measures intact. The House passed the amended bill (currently filed as House Bill 2749) on a voice vote — only to watch it die in the Senate.

Maybe it’s a coincidence that legislators seemed more open to flexible sentencing for drug offenders during the last legislative session, just as the state’s escalating fiscal crisis began to take hold. But then, maybe it’s not. As legislators grapple with a projected budget deficit of $3 billion and counting, Beacon Hill’s law-and-order culture has begun to give way to financial realities. According to Michael Cutler, a Boston attorney who heads the Drug Policy Forum of Massachusetts, a pro-drug-reform group, the problem for advocates has always come down to money. Legislators, he notes, "have had plenty of money to persecute drug users and to pay for schools and all the other services." They’ve never had to make a choice — until today. Now, no one at the State House can deny that a dollar more for prison cells equals a dollar less for classrooms, human services, and health care. Those who don’t fit the mold of what Cutler calls "the true moral crusader" can acknowledge the failures of the mandatory-sentencing drug laws without fear of attracting the weak-on-crime label. "At some point," Cutler observes, "morality falls victim to cost. Legislators can no longer afford to be moral."

Lawmakers who’ve pushed for reform agree. More and more these days, Linsky, the Natick representative, sees his colleagues "starting to scrutinize the costs of our criminal-justice system." As a result, he says, "We’re asking questions about whether or not these mandatory sentences serve the public purpose." For those eager to stop the hemorrhage of red ink, the new guidelines and parole measures offer new incentive. Adds Senator Creem, "The budget crisis means that these bills can appeal to a broader base of people. Even past opponents of reform may see a way to support" these bills.

THE MASSACHUSETTS legislature is not alone. Desperate to avert projected budget deficits, legislatures in states across the nation have begun to curtail corrections spending by moderating tough sentencing laws. As many as 20 states have loosened mandatory minimums for drug convictions since 2001, when states first began to encounter huge revenue shortfalls. So pervasive is the state-government fiscal crisis that similar sentencing reforms have unfolded even in places that pride themselves on getting tough, such as Ohio, Louisiana, Kansas, and Oklahoma.

By far, the most dramatic effort has occurred in Michigan, which boasted the harshest mandatory-sentencing drug laws in the US. The state has become notorious for its "650 Lifer Law," which sentenced even first-time offenders caught with over 650 grams of cocaine or heroin to life in prison without parole — the same term meted out to a first-degree murderer. Criminal-justice experts and advocates had been lobbying to ease the strict drug penalties for six years. But it wasn’t until last December, when lawmakers began slashing expenditures to make up for a $500 million shortfall, that the campaign gained momentum. On December 27, then–Michigan governor John Engler, a conservative Republican, signed into law a bill repealing the state’s mandatory sentences and replacing them with flexible guidelines similar to those proposed in Massachusetts — a step that’s already reduced the number of first-time offenders going to jail. Not only did the effort enjoy across-the-board support from politicians, but it was trumpeted even by long-time opponents like the Prosecuting Attorneys Association. The turnaround isn’t surprising, given that the elimination of mandatory drug minimums in Michigan has saved the state an estimated $41 million in 2003 alone.

To be sure, money isn’t the sole factor fueling this trend. Criminal-justice issues in general have become less politicized than in, say, the mid 1990s, when politicians and the public ate up measures like three-strikes-you’re-out mandatory sentences and prisoner chain gangs. Michael Mauer, of the Washington, DC–based advocacy group the Sentencing Project, explains that the "level of tension and emotion" surrounding these issues is lower today partly because of the reduced crime rate, which, despite a recent slight rise, plummeted during the 1990s. Part of the shift in attitudes, too, has to do with the success of such incarceration-alternative programs as the nation’s 800 drug courts, which divert first-time, nonviolent drug offenders into drug-treatment programs rather than jail. But even so, Mauer views money as the main force behind the reforms. "There’s no question that the fiscal crisis is driving these efforts," he says. "Legislators have got to balance their budgets, so they see these get-tough policies come with an expensive price tag."

This isn’t necessarily unusual. According to Jack Levin, who directs Northeastern University’s Brudnick Center on Violence and Conflict, changes in criminal-justice policy often result from economic necessity. While reaction to extraordinary events can drive such changes — when Somerville resident Eddie O’Brien stabbed his best friend’s mother 98 times in 1996, for instance, his case became the exemplar for trying juveniles as adults, now a favored criminal-justice policy — fiscal concerns can exert similar pressure. Levin points to the trend of de-institutionalizing the mentally ill during the 1970s, a time of comparable financial turmoil. Back then, the state adopted a policy of emptying out the institutions and integrating the mentally ill back into the community, where they’d receive services. Community-based mental-health care was touted as humanitarian reform. But, Levin says, "the real reason for this policy shift was to cut costs at the expense of mentally ill people who needed services." In the same way, he adds, "the underlying motivation for relaxing mandatory minimums has an economic basis."

For many, this economic impetus says something troubling about how we determine our criminal-justice policy. Experts like Mauer find it "sad commentary" that money has become the catalyst for drug-sentencing reform. "For years," he says, "legislators have overlooked all the evidence about the injustices, racial disparities, and inefficiencies of this system. Only when cost becomes an issue do we see this rising concern." Levin, too, thinks the latest trend shows how politicians and the public have "an infinite capacity to rationalize criminal-justice policy based on money." He then echoes the sentiment among many advocates when he concludes: "It’s not a very pretty picture whether you agree with the outcome or not. But, at least in this case, it’s positive. We’re doing the right thing for the wrong reason."

HERE IN Massachusetts, of course, it remains to be seen whether the pain of incessant budget cuts will cause lawmakers to rethink the state’s mandatory-sentencing drug laws. Although the May 21 hearing brought out scores of supporters for the parole and sentencing-guidelines measures, it also attracted opponents — namely, the district attorneys. Hampden County prosecutor William Bennett testified at the hearing on behalf of the Massachusetts District Attorneys Association. He told the Phoenix that the DAs reject Creem’s bill because it wouldn’t "maintain the integrity of mandatory sentences." Rather than parole drug offenders, he and his colleagues propose placing them on supervised work release. That way, they would be able to reintegrate into society by working outside the prison walls while still serving out their sentences. The DAs also oppose Linsky’s proposed sentencing-guidelines measure. But they’ve made a nod toward compromise by embracing the last session’s House Bill 2749, which does call for some deviation from the mandatory-sentencing drug laws. Explains Bennett, "There is merit in considering exceptions to the mandatories in certain circumstances," particularly as they relate to school zones.

And so, for the most part, the prosecutors aren’t too keen on easing the mandatory-sentencing drug laws. Bennett even implies that the state has no need for full reform because it doesn’t have mandatory sentences for drug possession, as other states do. Only 1.8 percent of the state’s drug convictions involve a mandatory sentence, he says, explaining that DAs turn to mandatory minimums only to prosecute "aggravating factors," such as large quantities, repeat offenders, and sales to minors. Claims Bennett, "We have a much different set-up than other states do."

As the Criminal Justice Committee weighs the opposition and support for sentencing reform in upcoming months, all advocates can do is wait and hope. No doubt, many reformers feel saddened that budget woes — as opposed to concerns about justice and fairness — are moving their agenda forward. As Ginsberg bluntly puts it, "I think it’s sickening that once the money gets tight legislators are willing to listen." Then again, even he can see the silver lining in the current financial clouds. If money causes state legislators to re-examine and reduce mandatory minimums for drug convictions, so be it. To look at it another way, advocates say, it’s sadder still that Massachusetts has remained behind while other states enact their sentencing reforms. And saddest of all, that legislators here are debating only partial reforms, despite the fact that mandatory minimums have proven a failed and costly experiment. http://72.166.46.24/boston/news_features/other_stories/multipage/documents/02931078.htm

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