MANDATORY SENTENCING A BIG-TIME BUST

A prime weapon in the war on drugs since the mid-1980s has been mandatory
minimum sentences that give judges no leeway in determining how many years
an offender should spend behind bars.

Politicians love the mandatory minimum law because it conveys a ``tough on
crime'' aura. Prosecutors love it because it gives them more power, since
they are the ones who decide whether to push for the mandatory sentence.

But not everybody loves the law. Its critics have always asserted that the
mandatory minimums, designed for big-time drug dealers, are being unfairly
applied to users having their first run-in with the law. But in
Massachusetts, no one knew exactly how often -- until now.

46igures obtained by the Globe show more than 84 percent of those serving
mandatory sentences on drug charges in Massachusetts are first-time
offenders in the state. For the most part, these are drug users who are at
the bottom of the supply chain. They are also overwhelmingly Hispanic and
black.

Meanwhile, the big-time dealers are avoiding the lengthy sentences that come
with mandatory minimums because they have information to trade with
prosecutors, or money that is forfeited upon their arrest -- which makes law
enforcement look upon them more kindly.

The federal system -- which operates under its own mandatory mimimum
sentence law that took effect 12 years ago -- is similarly filled with
small-time offenders. A 1992 analysis, the most recent available, found that
55 percent of all drug offenders were classified as ``low level'' either
street dealers or mules, and only 11 percent were high-level dealers.

Eric Sterling, a former congressional lawyer who wrote the federal mandatory
minimum sentencing laws in 1986, says he made a big mistake.

``Of all the things I was involved in during my nine years on the House
Judiciary Committee, my role in the creation of mandatory minimums was
absolutely the worst, the most counterproductive, the most unjust,'' says
Sterling, now president of the Criminal Justice Policy Foundation, a
nonpartisan think tank financed in part by Boston businessman Robert
Lindell.

``Thousands of men and women are serving many years in prisons unjustly as a
consequence of these laws.''

One such woman is Sylvia Foster, a former corrections officer in
Gainesville, Fla., now doing time at the federal prison in Danbury, Conn.
46oster, 34, and mother of two children, was sentenced 13 months ago to 24
years in prison for one count of conspiring to distribute crack cocaine.

According to court documents, Foster had no prior record, a good work
history, and was a caring mother. Her boyfriend used her home to cook and
store crack cocaine. Foster testified that she did not know about his
manufacturing or dealing until she found some crack in her house, confronted
her boyfriend, told him to get it out of her house, and broke up with him.

Even the government prosecutor, Jerome Sanford, said at her sentencing
hearing, ``This is probably one of those ... sentencing situations where I
have the sense that the defense, the prosecution, and the court wish that
there might be greater latitude in discretion for sentencing.''

But under the guidelines and mandatory minimums, Foster had to receive a
sentence of 24 to 30 years.

Supporters of the law point to the fact that overall crime rates are
dropping, and suggest that the threat of a long mandatory minimum sentence
is one of the reasons. But that drop may well have more to do with community
policing and demographics than with locking up drug users and dealers. After
all, drugs are still plentiful and cheap despite a massive prison building
boom around the country.

A cottage industry of advocacy groups and think-tanks has sprung up to fight
mandatory minimums, including Families Against Mandatory Minimums, which was
founded in 1991. FAMM does not advocate releasing people from jail, but
rather wants to return to judges the ability to look at a person's
background and consider extenuating circumstances before sentencing.

Judges want that, too.

``I have sat (before a) criminal (court) for 20 years and I have never had a
really top dealer before me,'' says Judge Robert Barton of Massachusetts
Superior Court. ``Invariably, they are street dealers or mules.'' Barton --
who describes himself as being ``left of the ayatollah, but that's about
it'' -- says those convicted in drug cases, ``end up taking up jail space,
and most do more time than those who commit crimes of violence against
another person.''

Barton adds: ``You get someone with a 15-year mandatory sentence for drugs,
and a second-degree murderer is eligible for parole in 15 years. There is a
certain person convicted of manslaughter, who happens to be in England'' --
a reference to Louise Woodward, convicted in the death of a Newton infant
she was caring for -- ``who was sentenced to time served.''

Even Chief Justice William Rehnquist has said mandatory minimums are ``a
good example of the law of unintended consequences'' because they ``impose
unduly harsh punishment for first-time offenders, particularly for mules who
played only a minor role in a drug distribution scheme.''

And it was an issue Justice Stephen Breyer worried about when he was an
appelate judge in Boston. ``What happens if we keep increasing mandatory
prison terms through the legislature?'' he warned. ``We will have tens of
thousands of men 20 years from now in their 50s, 60s, and 70s, and the
expense of warehousing these old men will be enormous.''

It is already staggering. In Massachusetts, the cost is an average of
$30,000 per prisoner per year. In the federal system, that cost is $23,000.

And the number of inmates serving time on drug charges keeps growing.
Consider that in 1983, one in 10 federal inmates was in prison for a drug
offense. Today it is one out of two.

In Massachusetts, the prison population in 1980 was 3,066. This year, it is
over 10,000, with more than 18 percent of those detained for drugs.

As a result, about 645 of every 100,000 Americans is behind bars, and
African-American men have a nearly 1-in-3 chance of being jailed at some
point in their lives. The United States' rate of incarceration is higher
than any other country's but Russia's.

Is it worth it? A 1997 Rand Corp. report found there are more cost-effective
ways to reduce crime and drug use. Using mathematical models, the study
found that, dollar for taxpayer dollar, mandatory minimum sentences were
less effective in reducing cocaine consumption than previous sentencing
structures. And neither was as effective as putting heavy users through
treatment programs.

The study also found mandatory minimums are less cost-effective for reducing
cocaine-related crime than either of those other alternatives.

US District Senior Judge A. David Mazzone, a member of the US Sentencing
Commission, which sets sentencing guidelines and monitors the federal court
system, said that mandatory minimum sentences conflict with guidelines
passed under the Sentencing Reform Act of 1984, which made sentencing more
uniform, but still left judges some discretion.

``In the federal system, 50 to 60 percent of inmates are drug-related and a
great deal of them are first-time offenders and most were sentenced under
mandatory sentences,'' Mazzone says.

In 1994, the Sentencing Commission recommended closing the gap in sentencing
for crack cocaine and powder cocaine. Congress virtually ignored the
recommendation, and those sentenced for crack -- nearly 90 percent of them
African-Americans -- still face sentences 100 times longer than those guilty
of powder cocaine offenses.

``There is a lot that can be done to the system,'' Mazzone says, ``but
without the political will you can't do it, and there is no political
will.''

There is little desire in the White House or on Capitol Hill to tinker with
mandatory sentencing, and, as a result, be tagged as ``soft on crime.'' But
at least one powerful politician in Massachusetts is making mandatory
sentencing overhaul a centerpiece of next year's legislative session.

``There are political currents and themes that this is left-wing,
soft-on-crime squishy, but I don't view it that way at all,'' said Thomas M.
Finneran, the Massachusetts House speaker, not a man to coddle criminals.
``To the extent that we can eliminate rigidity and defer to the judgment of
hopefully wisely chosen jurists, we are better off. One-size-fits-all
solutions designed by a legislative body that sits far away from the
instance of a specific case does not make sense.''

46inneran is motivated by an interest in the bottom line. ``I am not
convinced we are getting the full mileage for taxpayers dollars,'' he says.
``Some of the people sentenced could remain productive members of society
and pay back communities for whatever crime they committed.''

Predicted the speaker, ``This is a battleground that will develop in 1999.''

Checked-by: Rolf Ernst