by Rahsaan Hall
During the Massachusetts Sentencing Commission hearing on Tuesday, November 18, seven of the Commonwealth's District Attorneys provided testimony as a part of a panel to justify the continued use of mandatory minimum drug sentences. When asked about Massachusetts' rate of incarceration compared to other nations in the world, Cape and Islands District Attorney Michael O'Keefe responded:
"There are places in the world where their penalties for certain activities are much more draconian than incarceration. For example, they kill people. They cut off the hands of people who deal drugs in certain parts of the world."
Flag on the Argument! This is a strawman. O'Keefe is deflecting by saying that Massachusetts is better than most states, but then raises the draconian practices of other nations to justify their low incarceration rates.
This, however, is not surprising. O'Keefe previously pivoted when testifying on the repeal of mandatory minimum drug laws before Massachusetts' Joint Committee of the Judiciary this June, and raised the red herring of "Black-on-Black crime." So let's look at some of those more draconian countries that have much lower incarceration rates.
Uruguay, with an incarceration rate of 281 people incarcerated per 100,000 residents compared to Massachusetts' 377 per 100,000, seems like a throwback to the middle ages. The torturous Australia is at 130. Our beloved yet draconian ally France is at 98, and the despotic Sweden has an incarceration rate of 67. I'm not sure I recall any accounts of hands being cut for drug sales in any of these countries. Despite having lower incarceration rates than all but five states and one territory, Massachusetts still has an over-incarceration problem largely attributable to the failed War on Drugs.
Unfortunately, the continued justification of a failed policy and lost war is not unique to DA O'Keefe. Each of district attorneys stood by this tool of law enforcement under the argument that it keeps the worst of the worst off of the streets. This assumes that prosecutors are the most appropriate individuals to determine what a sentence should be for someone accused of selling drugs, as opposed to a judge who is sworn to "faithfully and impartially discharge and perform all [their] duties...according to the best of their abilities and understanding, agreeably, to the rules and regulations of the constitution, and the laws of this Commonwealth."
It also suggests that everyone who is serving a sentence on a mandatory minimum drug sentence is a drug trafficker as opposed to someone who is a user or an unwitting participant in the illicit activity of a friend or loved one. There have been multiple advocates, experts and individuals who have provided testimony about their own experiences. All have pulled back the cover on how ineffective mandatory minimums are for preventing and addressing the problem of illegal drug use and sales. The experts have made clear that treatment is a better tool than lengthy prison sentences. The advocates have pointed out that although Black and Latino residents make up less than 20% of the Commonwealth's population, they make up roughly 45% of those serving sentences on drug offenses, and 75% of those serving sentences on mandatory minimum drug sentences, (despite the lack of empirical evidence of disparities in drug use).
There has also been testimony from individuals who served lengthy sentences for activity they were not directly involved with. The district attorneys' response to all of this? Outright dismissal of the arguments, requests to see cases of those unfairly treated, pivoting to other issues and proclamations of prosecutorial discretion.
Is this the same type of discretion they sought to exercise in a recent Supreme Judicial Court case Bridgeman vs. District Attorney for Suffolk County? When confronted with the reality of vacating the convictions of victims of the Annie Dookhan drug lab scandal, prosecutors argued they could bring back any harsher charge—including a mandatory minimum charge—that had been dismissed as part of a plea bargain.
I proudly served as a prosecutor for the Suffolk County District Attorney's Office. My tenure began in 2000 under then District Attorney Ralph Martin, and continued until 2008 under the current District Attorney Daniel Conley. As a prosecutor, I would always charge mandatory minimum sentences when applicable. They provided me the leverage to resolve most of my cases, because I had a powerful bargaining chip. The mandatory minimum sentence. My recollection of those eight years is that an overwhelming majority of the cases I prosecuted for violations of the Controlled Substances Act resulted in guilty pleas to lesser offenses. This was because the defendants would accept the sentence I chose as opposed to facing the stiffer penalty that the mandatory minimum charge carried.
Most of the people who are serving sentences on drug offenses plead to those charges because the mandatory minimum charges were dropped in exchange for a plea. These are the people who are the users, addicts and low level non-violent drug offenders. These are the people who are in need. These are the people who need access to programming that has been shown to reduce recidivism, but access is often times restricted given the nature of their sentence. These are the ones who would benefit from earning good time or having supervised release prior to being let out on the last day of a mandatory sentence with no treatment, transition or supervision. So while the district attorneys continue to pivot in defense of an ineffective tool and lost war, they are cutting off the hands of the ones who are reaching out for help.
Rahsaan Hall directs the Racial Justice Program of the ACLU of Massachusetts