Back in the late 1980s when I did a lot of criminal defense work, the “war on drugs” adopted minimum mandatory sentences as its tactic of choice. The most onerous and ill-considered was a mandatory minimum 5 year sentence for a second offense of distribution of heroin. In the abstract, such a sentence might seem reasonable: the offender already had one chance and heroin was (and still is) ruinous to our community. But as is usually the case, reality is much more complicated.

The typical Lowell-defendant in these second offense cases was a street level addict/dealer who was selling to supply his or her own habit. The junkie would buy five bags for $100 and then sell four of them for $25 apiece. The markup allowed the junkie to consume the fifth bag himself. The marketplace was typically a sidewalk in the Acre (today’s version of which bears no resemblance to the blight of the 1980s) that served as a drive through window for suburban addicts. The police would spot the junkie/dealer transacting business and haul him into Lowell District Court, where he would quickly – sometimes at his arraignment – plead guilty to distribution or possession with intent to distribute, receive a suspended sentence, and be released to the street, often within hours of his arrest.

Craving his next fix, it was inevitable that he would head straight to the street and repeat the cycle. Only this time, the criminal justice system handled it very differently. Facing a five year minimum mandatory sentence, the defendant would be held without bail, indicted, and arraigned in Superior Court. The maximum possible sentence for second offense distribution of heroin was 15 years, but because it was a non-violent crime, anyone sentenced to the maximum would be eligible for release on parole after serving one-third of the sentence – that being five years. Because the maximum possible sentence would yield the same time in jail as a the minimum mandatory sentence on a guilty plea, there was no incentive for the defendant to plead guilty and so every one of these cases went to trial. Most were slam dunks for the prosecution, but in some the defendant was acquitted.

The irony of all this was that a steady stream of dealer/addicts headed to prison for five years, while robbers, rapists and other violent offenders received sentences of far greater leniency and much less time in prison because the offenses with which they were charged did not carry minimum mandatory sentences. The reality was that non-drug offenders had to do something really, really bad to get locked up for five years, yet the prisons were being filled with non-violent drug offenders who, if given the appropriate treatment and intensive supervision, could likely have stayed out of trouble and maybe even become a productive member of society rather than a long-term inmate in one of our prisons.

I share this experience as background for the coming debate on Governor Patrick’s proposal to modify another drug law with a minimum mandatory sentence – that being for selling drugs within 1000 feet of a school. That crime includes a mandatory minimum two year jail sentence, even if only for a first offense. And it’s not just selling, it also includes “possession with intent to distribute” which is a more nebulous crime, with proof often dependent on the arresting officer’s “expert opinion” that the amount of drugs possessed by the defendant were greater than normally seen for “personal use” which would just be the crime of possession. But the governor want to retain the two year mandatory minimum but collapse the “zone” to just 100 feet rather than 1000.

Selling illegal drugs anywhere is a bad thing, but given our fiscal crisis, we can’t build an unlimited supply of prisons. It seems that the prison beds now available would be better used housing violent offenders rather than people who but for a mandatory minimum sentence, would get at worst a short stay in the House of Correction and more likely, probation with drug treatment and drug testing. While the governor has proposed this change, it will be up to the legislature to vote on it. This is a case where the correct vote might not be the politically popular vote, so it will be interesting to see what ultimately becomes of this proposal.