Suffolk County District Attorney Dan Conley Makes Ridiculous Argument About Mandatory Minimum Sentencing

In response to comments made by Massachusetts Supreme Judicial Court Chief Justice Ralph Gants about mandatory minimum prison sentences, Suffolk County District Attorney Dan Conley argued that prosecutors, rather than judges, are in the best position to determine how long a defendant ought to serve in prison.

Multiple media outlets have been reporting about comments made by Gants and Conley at the Massachusetts Criminal Justice Reform Coalition being held at UMass-Boston.  An excellent summary of the Chief Justice’s comments, and the District Attorney’s response, can be found here.  Since being elevated to chief justice last summer, Gants has suggested that mandatory minimum sentencing in drug cases should be eliminated.

Here’s how mandatory minimum sentencing works.  A defendant who is charged with trafficking drugs is subject to a mandatory minimum prison sentence.  Trafficking is defined as possessing a certain weight of a drug with the intent to distribute it.  For cocaine, heroin, and Oxycontin, the first level of trafficking starts at 18 grams.  A judge has no authority to reduce or eliminate a mandatory minimum prison sentence, even if there are very good reasons to impose a less severe sentence on a particular defendant.  Therefore, in bringing the charges against the defendant, the prosecutor decides what the defendant’s mandatory minimum sentence will be.  Once the case is in court, the prosecutor has enormous power to try to force the defendant to plead guilty.  For example, a defendant who is charged with trafficking between 100 and 200 grams of cocaine is subject to a mandatory minimum state prison sentence of 8 years.  The prosecutor might tell the defendant that he will “break down” the case (reduce the charges) to a lower level (for example, trafficking cocaine between 36 and 100 grams), but only of the defendant is willing to accept whatever sentence the prosecutor is offering.  A defendant who is facing a mandatory minimum 8-year sentence if he loses at trial will seriously consider a prosecutor’s offer to break down a case (to serve, for example, 5 years instead of 8), even if he has a strong defense to the charges.  The risk of losing at trial and getting hit with a long mandatory minimum is often too daunting for defendants.

According to Commonwealth Magazine, Chief Justice Gants correctly stated that prosecutors don’t want mandatory minimum sentences eliminated because they don’t want to lose their negotiating power.  Gants also said that the type of sentencing agreements prosecutors make in drug trafficking cases penalizes defendants who want to exercise their constitutional rights to a trial and who might actually win their cases.  As long as prosecutors are allowed to control the length of defendants’ sentences, Gants said, there will not be “individualized, evidence-based sentences.”

The Chief Justice’s comments were predictably met with protests by the Commonwealth’s district attorneys, including Suffolk District Attorney Dan Conley.  According to the Boston Herald, Conley said that eliminating mandatory minimum sentencing and allowing judges to use their discretion in sentencing drug defendants is a “failed policy.”  Conley argued that mandatory minimum sentencing has reduced crime and that prosecutors are in a better position than judges to decide how much time drug defendants should serve in prison.

The suggestion that a prosecutor is in a better position than a judge to decide an appropriate sentence is laughable.  Many prosecutors have had no job other than working for the District Attorney’s Office.  Their only responsibility during their entire careers has been to argue forcefully that every defendant should be convicted and punished.  And that’s fine – the system is set up for a prosecutor to argue forcefully for conviction and punishment and for a defense attorney to argue forcefully for acquittal and, if necessary, mercy.  An independent judge is in the best position to consider all of the attorneys’ arguments and impose a just sentence.  Sentencing should absolutely not be the role of the prosecutor.

Conley’s argument also fails to acknowledge that in prosecuting cases, assistant district attorneys do not make decisions based only on the law.  District attorneys are politicians, elected by constituents who are often supportive of lengthy, severe prison sentences.  A district attorney who is seen as soft on crime will likely be voted out of office.  Prosecutors make decisions every day in court for political reasons, from sentencing arguments to the Middlesex District Attorney’s Office’s outrageous response to the Jared Remy murder case in 2013 (in which prosecutors began requesting bail in every single domestic violence case in a misguided effort to appear tough on crime).  Judges, on the other hand, are appointed in Massachusetts and cannot be voted out of office for imposing an appropriate, yet politically unpopular, sentence.  Judges should be making all sentencing decisions, without prosecutors being permitted to use minimum mandatory prison sentences as weapons.

Chief Justice Gants pointed out that mandatory drug sentencing has had a disparate impact on racial minorities and he argued that we “cannot incarcerate our way out of the drug problem.”  He’s exactly right.  Mandatory minimum sentencing doesn’t work and it should be abolished.  The superior court judges who preside over drug trafficking cases are perfectly capable of handing out appropriate sentences, just as they are with any other crime such as rape or robbery (neither of which carries a mandatory minimum sentence).