MBA testifies in favor of reforms to mandatory minimum, CORI laws

Issue July/August 2009 By Jennifer Rosinski

The Massachusetts Bar Association, led by President Edward W. McIntyre, testified in favor of eliminating mandatory minimum sentences for nonviolent drug offenses, reforming CORI laws and reducing the 1,000-foot school-zone buffer, before the Joint Committee on the Judiciary at the Statehouse on July 27.

McIntyre was just one of dozens of sentencing reform supporters who presented testimony over the course of several hours in a sweltering auditorium that at its height was brimming with a standing-room-only crowd.

The committee is considering more than 80 criminal justice-related bills, including legislation filed by Gov. Deval Patrick that would make convicted drug offenders eligible for parole after serving two-thirds of their sentence. Patrick testified along with Boston Mayor Thomas Menino, Suffolk County Sheriff Andrea J. Cabral, legislators, corrections officials, police chiefs, community groups, citizens with CORI records and family members of those serving mandatory minimum sentences. 

"We need to reduce recidivism by ensuring that offenders are given the tools they need to succeed when returning to society," McIntyre said. "We need to ensure that offenders are treated the same in or out of the court system whether they live in the suburbs, the country or a city, where nearly every square inch is a school zone."

McIntyre was joined in his testimony by former MBA Criminal Justice Section Chair Lee J. Gartenberg, Boston Bar Association President Kathy B. Weinman, Massachusetts Association of Criminal Defense Lawyers President John H. Cunha and MACDL Past President Martin R. Rosenthal. The group spent about 30 minutes presenting their arguments to the committee.

Copies of a report released by the MBA in May that calls for treating rather than prosecuting nonviolent drug offenders were presented to committee members and legislators. "The Failure of the War on Drugs: Charting a New Course for the Commonwealth," a product of more than one year of research and consideration, contains provisions that could save the state more than $25 million a year. (See related story on page 1.)

Gartenberg, who has been working with the MBA on sentencing issues for more than a decade, told the committee that mandatory minimum drug sentencing laws and too-strict rules for probation violations hinder corrections officials from properly classifying and treating each prisoner.

"The use of one-size-fits-all mandatory sentences flies in the face of the method of individual sanction and treatment favored by experts. Mandatory sentences impose punishment based on the offense with no regard for information about the offender," said Gartenberg, who is director of Inmate Legal Services for the Middlesex Sheriff's Office.

For example, Gartenberg said, mandatory drug sentences often prohibit prisoners from participating in beneficial programs, including work release, and could mean they are housed in high-security areas with those who could be a bad influence.

"Given that incarceration in a correctional facility is estimated to cost up to 10 times the cost of community supervision, does it make sense to spend far more taxpayer money on a system that is widely believed by experts to be less successful?" Gartenberg said.

Judges must also have flexibility in formulating sanctions for probations violations, Gartenberg said. The Supreme Judicial Court has ruled judges have limited options: either keep the person on probation, or commit the person to serve the entire suspended sentence. Gartenberg said judges should have additional options, including committing the person to serve a portion of the suspended sentence.

"The problem with forcing the judge to impose all-or-nothing sentencing options is that often the punishment doesn't fit the crime," Gartenberg said. "It also minimizes consideration of individual factors regarding the probationer. Therefore, the court is forced to be either too lenient or too strict."

Gartenberg also reiterated the MBA's long-standing belief that CORI needs to be reformed, and reviewed for the committee a report recommending several changes approved by the House of Delegates in 2006. The MBA supports improved verification of criminal records, prompt methods for correcting incorrect information, access to criminal records for judges, prosecutors and law enforcement officials, and reduced waiting time for sealing of records of old convictions.

The MBA is committed to working with the Legislature on sentencing reforms over the coming weeks.