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Massachusetts Criminal Justice Reform and Public Health: Part 2, Drug Crimes and Mandatory Minimum Sentences

By Elisabeth J. Ryan

In April 2018, Massachusetts Governor Charlie Baker signed a major criminal justice reform bill, the result of years of efforts by legislators and advocates to implement changes to many existing “tough-on-crime” laws. The bill, at more than 120 pages, contains a plethora of changes, including raising the minimum age for juvenile justice involvement from 7 to 12, restricting the use of solitary confinement, and eliminating mandatory minimums from most drug crimes except for trafficking. However, the bill also creates new crimes, like trafficking in carfentanil.

PHLW will be looking at various provisions of the bill and how they intersect with public health. In Part 1, we looked at the creation of “medical parole” in the Commonwealth. In today’s Part 2, we look at drug crimes and mandatory minimum sentences.

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One of the earlier versions of this reform bill contained a provision that would have allowed people with opioid use disorders to have access to medication assisted treatments (MAT) while in prison. That would have been a major public health triumph, as illustrated by its success in Rhode Island prisons. MAT remains the gold standard of care for opioid use disorders; studies show that people on MAT are more than twice as likely to remain opioid-free. Incarcerated individuals have much higher than usual rates of substance use disorders and are 129 times more likely to die of an overdose within two weeks of release from prison, compared to the general population.  The Rhode Island program that gave its incarcerated population access to MAT not only resulted in much higher rates of adherence to treatment after release, but also corresponded with a 12% reduction in overdose deaths statewide. Unfortunately for Massachusetts, which has one of the highest overdose death rates in the country, the provision that would have provided MAT is prisons did not make it to the final criminal justice bill. Instead, the bill takes a split approach to drug crimes – it reduces the reach of “school zone violations,” shores up “Good Samaritan” laws, and eliminates some mandatory minimum sentences, but it also creates a new trafficking crime with a new mandatory minimum sentence, which is what this part of our series focuses on.

While mandatory minimums have existed in the United States for serious crimes since the 18th century, Congress expanded them to drug crimes in 1986 as part of the “tough on crime” and “war on drugs” era. The Anti-Drug Abuse Act of 1986 created especially harsh penalties for offenses involving of crack cocaine, which resulted “disproportionately harsh prison sentences for defendants who are disproportionately black.” Massachusetts, like many other states, passed similar mandatory minimum sentences for drug crimes in the 1980s, which resulted in similar disproportionate impacts on communities of color.

Almost thirty years after first instituting mandatory minimum sentences for drug crimes, Massachusetts began to scale them back in 2012 with an Act Relative to Sentencing and Improving Law Enforcement Tools. However, instead of actually getting rid of any minimum mandatory sentences as then-Governor Deval Patrick had aimed for, that law only reduced the length of some sentences. While the most recent criminal justice reform bill certainly did not abolish mandatory minimum sentences for drug offenses, it did eliminate them for distribution of Class B (most commonly cocaine) and Class C substances (which includes many prescription narcotics, such as Valium and Vicodin). The bill, however, leaves mandatory minimums in place for trafficking in all classes of drugs.

Notably, the law actually creates new mandatory minimums specifically applicable to trafficking in fentanyl and carfentanil. While fentanyl was added to the list of Class A substances in 2016, this new bill also adds carfentanil to that list. Fentanyl already had a separate trafficking (over 10 grams) sentencing scheme, with a maximum of 20 years imprisonment but no mandatory minimum. This was in contrast to the trafficking sentencing scheme for other Class A drugs, which had mandatory minimum sentences ranging from 3.5 to 12 years, depending on the amount of substance at issue. The new bill adds a mandatory minimum of 3.5 years to trafficking in fentanyl or carfentanil, and though it does not distinguish levels of amounts, the new law allows charges based on whether any mixture of substances weighing 10 grams or more tests positive for fentanyl. Law enforcement had pushed for this change to make charging easier, as fentanyl is rarely found “pure”; instead, it is found mixed with other drugs such as heroin.  This could be seen as simply an adjustment to bring the punishment for fentanyl/carfentanil in line with those for analogous drugs. But it also highlights the particular alarm that these two synthetic opioid drugs in particular have caused in the country’s current “opioid crisis,” some of which is warranted and some of which is not.

The law’s elimination of some mandatory minimum sentences for certain drug crimes while keeping others in place and even creating new ones illustrates the ongoing tension between treating drug use as both a crime and a public health issue. It also reinforces an imaginary line between those who use drugs (increasingly viewed as people with a health or medical condition) and those who sell drugs (viewed as the evil drivers of the opioid crisis). Governor Baker in particular has sought to increase punishment for “dealers.” Last December, he introduced a bill that would have created a new crime of manslaughter for anyone who “manufactures, distributes, or dispenses" any controlled substance if "a death...results from the injection, inhalation, or ingestion of that substance." While his particular bill has not moved far in the legislature, this notion of treating the “sellers” as responsible for overdose deaths has gained traction across the country. One major problem, however, is that most of the people being prosecuted are not the high-level, kingpin dealers that the political rhetoric targets. Instead, they are the friends, significant others, and acquaintances of the decedents who almost always suffer from opioid use disorder as well.

Easing the punishment for some drug crimes while strengthening the punishment for others reflects a “two steps forward, one step back” approach to drug crime in the Commonwealth. Whether such changes will have an impact on incarceration rates and/or opioid overdose deaths remains to be seen.

Elisabeth Ryan