Pubdate: Sun, 8 Nov 1998 Source: Boston Globe (MA) Page: D1 Copyright: 1998 Globe Newspaper Company. Contact: http://www.boston.com/globe/ Author: Matthew Brelis A BIG-TIME BUST Finally, There Is Hard Evidence That Mandatory Minimum Sentencing Clogs Prisons With First-Time Offenders A prime weapon in the war on drugs since the mid-1980s has been mandatory minimum sentences that give judges no leeway in determining how many years an offender should spend behind bars. Politicians love the mandatory minimum law because it conveys a ``tough on crime'' aura. Prosecutors love it because it gives them more power, since they are the ones who decide whether to push for the mandatory sentence. But not everybody loves the law. Its critics have always asserted that the mandatory minimums, designed for big-time drug dealers, are being unfairly applied to users having their first run-in with the law. But in Massachusetts, no one knew exactly how often - until now. Figures long-requested of the state Department of Corrections, and now obtained by the Globe, show that more than 84 percent of those serving mandatory sentences on drug charges in Massachusetts are first-time offenders in the state. That means that 8 out of every 10 drug offenders are doing an average of about five years in their first prison sentence - about a year longer than the average state sentence for a violent crime. For the most part, these are drug users who are at the bottom of the supply chain. They are also overwhelmingly Hispanic and black. Meanwhile, the big-time dealers are avoiding the lengthy sentences that come with mandatory minimums because they have information to trade with prosecutors, or money that is forfeited upon their arrest - which makes law enforcement look upon them more kindly. The federal system - which operates under its own mandatory minimum sentence law that took effect 12 years ago - is similarly filled with small-time offenders. A 1992 analysis, the most recent available, found that 55 percent of all drug offenders were classified as ``low level'' either street dealers or mules, and only 11 percent were high-level dealers. Many in positions of power are rethinking the wisdom of mandatory minimum sentencing. Expect the issue to heat up on Beacon Hill next year. Eric Sterling, a former congressional lawyer who wrote the federal mandatory minimum sentencing laws in 1986, is among those who acknowlege that the law was a mistake. ``Of all the things I was involved in during my nine years on the House Judiciary Committee, my role in the creation of mandatory minimums was absolutely the worst, the most counterproductive, the most unjust,'' says Sterling, now president of the Criminal Justice Policy Foundation, a nonpartisan think tank financed in part by Boston businessman Robert Lindell. ``Thousands of men and women are serving many years in prisons unjustly as a consequence of these laws.'' One such woman is Sylvia Foster, a former corrections officer in Gainesville, Fla., now doing time at the federal prison in Danbury, Conn. Foster, 34, and mother of two children, was sentenced 13 months ago to 24 years in prison for one count of conspiring to distribute crack cocaine. According to court documents, Foster had no prior record, a good work history, and was a caring mother. Her boyfriend used her home to cook and store crack cocaine. Foster testified that she did not know about his manufacturing or dealing until she found some crack in her house, confronted her boyfriend, told him to get it out of her house, and broke up with him. Even the government prosecutor, Jerome Sanford, said at her sentencing hearing, ``This is probably one of those ... sentencing situations where I have the sense that the defense, the prosecution, and the court wish that there might be greater latitude in discretion for sentencing.'' But under the guidelines and mandatory minimums, Foster had to receive a sentence of 24 to 30 years. Supporters of the law point to the fact that overall crime rates are dropping, and suggest that the threat of a long mandatory minimum sentence is one of the reasons. But that drop may well have more to do with community policing and demographics than with locking up drug users and dealers. After all, drugs are still plentiful and cheap despite a massive prison building boom here (some 2,250 beds added since 1991) and around the country. A cottage industry of advocacy groups and think-tanks has sprung up to fight mandatory minimums, including Families Against Mandatory Minimums, which was founded in 1991. FAMM does not advocate releasing people from jail, but rather wants to return to judges the ability to look at a person's background and consider extenuating circumstances before sentencing. Judges want that, too. ``I have sat [before a] criminal [court] for 20 years and I have never had a really top dealer before me,'' says Judge Robert Barton of Massachusetts Superior Court. ``Invariably, they are street dealers or mules.'' Barton - who describes himself as being ``left of the ayatollah, but that's about it'' - says those convicted in drug cases, ``end up taking up jail space, and most do more time than those who commit crimes of violence against another person.'' Barton adds: ``You get someone with a 15-year mandatory sentence for drugs, and a second-degree murderer is eligible for parole in 15 years. There is a certain person convicted of manslaughter, who happens to be in England'' - a reference to Louise Woodward, convicted in the death of a Newton infant she was caring for - ``who was sentenced to time served.'' Even Chief Justice William Rehnquist has said mandatory minimums are ``a good example of the law of unintended consequences'' because they ``impose unduly harsh punishment for first-time offenders, particularly for mules who played only a minor role in a drug distribution scheme.'' And it was an issue Justice Stephen Breyer worried about when he was an appelate judge in Boston. ``What happens if we keep increasing mandatory prison terms through the legislature?'' he warned. ``We will have tens of thousands of men 20 years from now in their 50s, 60s, and 70s, and the expense of warehousing these old men will be enormous.'' It is already staggering. In Massachusetts, the cost is an average of $30,000 per prisoner per year. In the federal system, that cost is $23,000. And the number of inmates serving time on drug charges keeps growing. Consider that in 1983, one in 10 federal inmates was in prison for a drug offense. Today it is one out of two. In Massachusetts, the prison population in 1980 was 3,066. This year, it is over 10,000, with more than 18 percent of those detained for drugs. As a result, about 645 of every 100,000 Americans is behind bars, and African-American men have a nearly 1-in-3 chance of being jailed at some point in their lives. The United States' rate of incarceration is higher than any other country's but Russia's. Is it worth it? A 1997 Rand Corp. report found there are more cost-effective ways to reduce crime and drug use. Using mathematical models, the study found that, dollar for taxpayer dollar, mandatory minimum sentences were less effective in reducing cocaine consumption than previous sentencing structures. And neither was as effective as putting heavy users through treatment programs. The study also found mandatory minimums are less cost-effective for reducing cocaine-related crime than either of those other alternatives. US District Senior Judge A. David Mazzone, a member of the US Sentencing Commission, which sets sentencing guidelines and monitors the federal court system, said that mandatory minimum sentences conflict with guidelines passed under the Sentencing Reform Act of 1984, which made sentencing more uniform, but still left judges some discretion. ``In the federal system, 50 to 60 percent of inmates are drug-related and a great deal of them are first-time offenders and most were sentenced under mandatory sentences,'' Mazzone says. In 1994, the Sentencing Commission recommended closing the gap in sentencing for crack cocaine and powder cocaine. Congress virtually ignored the recommendation, and those sentenced for crack - nearly 90 percent of them African-Americans - still face sentences 100 times longer than those guilty of powder cocaine offenses. ``There is a lot that can be done to the system,'' Mazzone says, ``but without the political will you can't do it, and there is no political will.'' There is little desire in the White House or on Capitol Hill to tinker with mandatory sentencing, and, as a result, be tagged as ``soft on crime.'' But at least one powerful politician in Massachusetts is making mandatory sentencing overhaul a centerpiece of next year's legislative session. ``There are political currents and themes that this is left-wing, soft-on-crime squishy, but I don't view it that way at all,'' said Thomas M. Finneran, the Massachusetts House speaker. ``To the extent that we can eliminate rigidity and defer to the judgment of hopefully wisely chosen jurists, we are better off. One-size-fits-all solutions designed by a legislative body that sits far away from the instance of a specific case does not make sense.'' Predicted the speaker, ``This is a battleground that will develop in 1999.'' - --- Checked-by: Patrick Henry