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March 16, 2015

Massachusetts Chief Justice taking on prosecutors concerning drug mandatory minimums

This lengthy local article, headlined "Chief justice: Prosecutors “hold the cards” on sentencing," spotlights a war of words in the Bay State over the impact and import of mandatory minimums for drug offenses. Here are excerpts:

The chief justice of the state’s highest court lashed into the mandatory minimum sentencing of drug offenders on Monday, saying the current set-up needs to be abolished because it is “unfair” to minorities, fails to address the drug epidemic and is a “poor investment” of public funds.

In a sharp rejoinder, Boston’s top prosecutor said Monday that Supreme Judicial Court Chief Justice Ralph Gants was advocating for a “return to a failed policy” from 30 years ago. When judges had “unfettered” discretion, they exercised it “poorly,” Suffolk District Attorney Dan Conley said.

Conley, who holds an elected position, said he has not seen judges appear at community meetings in response to crime in Dorchester, Mattapan and Roxbury.  “Have you ever seen a judge out there listening to the community? No,” Conley said.  “Maybe they don’t see that as their position, but they’re operating in a vacuum. They don’t understand how drug traffickers and drug dealers and gang members are turning some neighborhoods in our city into very, very violent communities.”...

In a speech to attendees of a criminal justice conference at UMass Boston, Gants, who has emerged as a vocal critic of mandatory minimum sentencing in drug cases, acknowledged prosecutors have concerns about eliminating the mandatory minimums policy. “Now, let’s be honest: When some district attorneys say they fear judicial leniency, they really are saying that they do not want to relinquish to judges the power to impose sentences that minimum mandatory sentences give to prosecutors,” Gants said.  “They would prefer that prosecutors decide what sentence a drug dealer receives.”

Gants, who worked as a federal prosecutor for eight years, said prosecutors are seeking to maintain “leverage” to induce a plea by dropping the mandatory minimum charge. “I understand why they would like to preserve their power to sentence,” he said.  “What card player would agree to surrender the cards that yield a superior hand? For as long as prosecutors, rather than judges, hold the cards that determine sentences, we will not have individualized, evidenced-based sentences and we will not be applying any of the three principles of just and effective sentencing.”

According to Gants, the three principles are considering the circumstances of the crime and the role of the defendant; ensuring that “the sentence should be no greater than necessary to accomplish the first principle”; and crafting a sentence that enables the defendant to “get past the past” and reduce recidivism.

Gants said the judiciary will implement the three principles through a “best practices” committee created by each trial court department with criminal jurisdiction. The committees will have a first draft prepared by Thanksgiving, and Gants is aiming for implementation of the “best practices” by next spring for cases where mandatory minimums don’t apply....

Gants’ remarks were the keynote address at a summit put together by the Massachusetts Criminal Justice Reform Coalition. During one of the panels that followed Gants’ talk, Conley responded to the chief justice, calling himself “the skunk at the garden party” and the “only alternate voice” in the room.

“I hope at the next summit that we have some more alternate voices and more vigorous debate on the efficacy of minimum mandatory sentences and how they’ve impacted our communities,” Conley said.

Conley said the state’s 11 district attorneys exercise their discretion “judiciously and wisely.” “There needs to be consistency across courtrooms, across counties, across regions, and I would argue that the 11 district attorneys, who are responsive to the public, are in the best position to exercise that discretion,” he said.

Out of a population of about 6.75 million residents, Massachusetts has about 1,000 individuals serving mandatory minimum drug sentences, according to Conley. Massachusetts “ought to be held up, frankly, as a beacon of how other states ought to do it,” Conley said. Conley added: “We shouldn’t leave to chance the idea that 400 judges with 400 different views on how defendants who commit drug offenses ought to be sentenced, and give them full and unfettered discretion. It is a recipe for disaster, I believe.”

During Conley’s response, Gants sat a few feet away from the stage with a smile. When Conley walked off the stage, Gants stood up, smiled again and they shook hands. Gants said he has also spoken to prosecutors about his views. “I deal in a court [in] which there are often dissents, so I’m comfortable with disagreement. It’s respectful disagreement, and we’ll keep talking,” he said.

March 16, 2015 at 11:15 PM | Permalink


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the biggest change I have seen in the over forty years in the courtroom is the shift of power over sentencing from judge's to prosecutors. I believe it has gotten to the point that mandatory minimums violate the separation of powers clause of the constitution.


Posted by: bruce cunningham | Mar 16, 2015 11:46:30 PM

The New Jersey Supreme Court basically held that MMs *did* violate state separation of powers, which is why NJ (which has appointed, not elected, DAs) now has plea bargaining guidelines for drug cases: http://caselaw.findlaw.com/nj-supreme-court/1456585.html.

Posted by: John Pfaff | Mar 17, 2015 12:56:20 AM

Mandatory minimums saved the judicial system. It was for its own good. Crime was out of control in the 1970's and 1980's. The public was fed up. They wanted to do damage to pro-criminal judges who owed their jobs to the criminals, and did better if crime increased, would lose their jobs if crime decreased.

Even the prosecutor owes his job to the criminal. That is why, if you shoot a violent criminal, you get prosecuted not the violent criminal. When crime begins to rise in about 15 years, it will be time to criminalize rent seeking, and to arrest the hierarchy of lawyer traitors.

Defense lawyers are at least honest about their dependence on a high crime rate. They are openly seeking the coddling and especially the freeing of ultra-violent predators to generate more defense lawyer jobs. Naturally, the public sees defense lawyers as scum, not better than their clients. They then lie to themselves saying they are not defending the indefensible but the constitution. They are, of course, only defending their incomes by wasting time and money. Most of their clients lose, They are no better than pro se litigants in their track records. They are just stealing money, being utterly worthless to anyone, including worthless to their clients. They are mere messengers for plea deals, running back and forth, with the plea on a velvet pillow. The client would be better off thinking independently of these lackeys for the prosecution.

The prosecutors and judges are less open about their conflict of interest. They are more morally reprehensible than the defense bar.

Eventually, they should all be replaced by accuracy rated robots, and this profession will be replaced. Until that happens, the Chief Justice should be impeached, not for any collateral corruption. He should be impeached by the legislature for his views.

Posted by: Supremacy Claus | Mar 17, 2015 1:24:02 AM

Judges: We want the power.

Executive: We want the power.

Legislature: We will give the power to the Executive.

Where is the constitutional problem? It is simply a power struggle, and the judges have lost. They now want the power back. Judges can come up with all sorts of arguments about why mandatory minimums are bad, but at the end of the day the judges are just mad that the legislatures have taken away some power from the judiciary.

Posted by: hmmm | Mar 17, 2015 11:04:04 AM

Hmmm. The legislature did that first in Congress, then in in imitation across the states, for a reason. The crime rate under the power of the judges was soaring. The legislature was correct. The crime rate dropped 40% across the board, as a result of this measure to promote incapacitation, rather than the agenda of the judges. That was to coddle criminals to maintain their cushy government make work jobs. Now we have lawyer unemployment, and they are fighting back. They do not care if their louse make work jobs come at the cost of victimizing millions of people, especially black people. They are the ultimate heartless racists. Blacks get murdered, they get their jobs.

Posted by: Supremacy Claus | Mar 17, 2015 11:15:13 AM

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