Suffolk County District Attorney Dan Conley
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 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,” said Suffolk District Attorney Dan Conley.

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.”

Conley added: “And back before mandatory minimum sentences, there were whole swaths of the city that many people thought were simply uninhabitable.”

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 that 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. “In cases where a judge is not constrained by statutes requiring a minimum mandatory sentence, a judge will sentence a defendant with a set of best practices that will ensure individualized, evidence-based sentences handcrafted for each defendant,” he said.

Gants added that there aren’t mandatory minimum sentences for attempted murder, armed robbery, arson, bribery or perjury, among other crimes. Mandatory minimums also have a “disparate impact” on racial and ethnic minorities, he said, noting that out of 450 defendants given minimum mandatory sentences in fiscal year 2013, racial and ethnic minorities made up 32 percent of those sentenced.
States like Michigan, New York, Rhode Island, and South Carolina have eliminated or “substantially” reduced the scope of mandatory minimum sentences in drug cases, Gants added. “At a time of budget cutting, when the Department of Correction population is at 130 percent design capacity, we can ill afford to incarcerate drug offenders longer than they deserve,” he said.

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, adding that the state’s 11 district attorneys exercise their discretion “judiciously and wisely.”

“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,” said Conley, “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.