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Testimony of Barbara J. Dougan
Families Against Mandatory Minimums
Governor’s Opioid Addiction Working Group
Boston Public Hearing
April 2, 2015
Governor Baker, Attorney General Healey, Secretary Sudders and members of the Working
Group, thank you for this opportunity to testify. Families Against Mandatory Minimums
(FAMM) is a nonpartisan, nonprofit organization that works at the state and federal levels to
repeal mandatory minimum sentencing laws. In Massachusetts, we focus exclusively on
mandatory minimum sentences for drug offenses. We take no position on the decriminalization
or legalization of drugs. Instead, FAMM believes that sentences for drug offenses should be
individualized, proportionate and sufficient to impose fair punishment while also protecting
public safety. A big part of public safety is getting users and addicts into treatment, which
reduces the demand for drugs.
FAMM urges this body to call for the repeal of mandatory minimum sentences for drug
offenses. Massachusetts has had over 30 years to see that they don’t work in curbing drug
abuse – we wouldn’t be here today if they did – in large part because they prevent too many
addicts from getting the services they need. They also don’t discourage people from either
using or selling drugs. The last three decades have shown that rigid sentencing laws are not the
disincentive that lawmakers thought they would be.
As for the specific services and resources are needed, we defer to those with the experience
and expertise on treatment and recovery, and in particular the Massachusetts Organization for
Addiction and Recovery (MOAR) and the Association for Behavioral Health. FAMM fully
supports their recommendations and the needs of the recovery community.
Some dealers are addicts, some addicts are dealers.
The good news: the conversation about addiction has moved past outmoded condemnation of
addicts as flawed individuals or bad people. We now talk about the best ways to treat a chronic
disease of the brain. The bad news: the new narrative is that users and sellers are two distinct
groups, as if there is a bright line that divides them. Too often we now hear that addicts
deserve help but we should come down hard on sellers.
Families Against Mandatory Minimums | Massachusetts Project
P.O. Box 54 | Arlington, MA 02476 | 617.543.0878 | [email protected] | www.famm.org
For some drug offenders, selling drugs is their occupation. They don’t use or need the products
they sell. It’s likely that they are on the higher rungs of the drug trade, where substance abuse
would interfere with their ability to conduct business. But there are many low-level players who
sell drugs, or help someone else sell drugs, to earn the money they need to support their
addictions. Some addicts may be able to work a regular job, at least until their lives start to
deteriorate. But then they start to steal or sell their bodies for money and drugs or, the most
direct route of all, sell drugs themselves. Ask the family of any addict.
When I speak to the support groups for the families of young addicts, they recognize the
overlap. At one such meeting, a father asked me, “If your child died from a heroin overdose,
wouldn’t you want to see the dealer put away for life?” Before I could respond, another parent
asked the father, “But what if it was my kid who sold to your kid? Any of our children could be
either the seller or the user.” The other parents in the room agreed.
Mandatory minimums prevent effective treatment.
It is often said that Massachusetts doesn’t send people to prison for being addicts. That’s true.
However, we do send to prison drug users and addicts whose crimes are related to their
addiction. Most drug crimes, apart from simple possession and some first-time distribution
offenses, require mandatory prison sentences. There is no alternative: no diversion-totreatment program, no drug court and no community corrections. Yet while in prison, there is
at best limited access to treatment, with long waiting lists for the programs that do exist.1
State corrections officials estimate that about 80% of all prisoners struggle with substance
abuse.2 Undoubtedly, many of those sentenced to mandatory minimums for drug offenses are
among that 80%. It’s the same at the county level.
Suffolk County Sheriff Steven Tompkins reports that over 85% of prisoners at his facility are
there for drug-related offenses. He refers to mandatory minimum sentences as “forced
sentencing.” He explains, “Because of mandatory minimum sentencing, judges are left with
little to no discretion with respect to sentencing for low-level, non-violent drug offenses. . .
Many of these people really belong in an addiction recovery program or diversionary program
instead of with us behind bars.”3
1
2
3
Massachusetts Dept. of Correction, Division of Inmate Training and Education, Program and Reentry Services
Wait List (Sept. 2012).
Massachusetts Dept. of Correction, “Two-Year Recidivism Study: A Descriptive Analysis of the January –
July 2011 Releases and Correctional Recovery Academy Participation (Jan. 2014), available at
http://www.mass.gov/eopss/docs/doc/research-reports/recidivism/cra-2yr-rec2011.pdf.
Press release, “Sheriff Tompkins Decries Mandatory Minimums during Boston Ten Point Coalition Meeting,”
(Feb. 12, 2015), available at http://www.scsdma.org/news/press/2015/150212.shtml.
2
Norfolk County Sheriff Michael Bellotti has also gone on record as opposing mandatory
minimums for low level, nonviolent drug offenses. “Since being elected sheriff in 1998, I have
seen an increasing number of inmates coming to us on drug charges. In recent years, the
problem has been compounded by the opiate drug epidemic.”4 No matter how good our drug
courts may be, an addict facing a mandatory prison sentence can’t even get in the door. “The
problem with mandatory minimum sentences is that they limit options open to us when it
comes to treating the issue of addiction. The state has established a number of successful drug
courts . . . But the drug courts cannot order the alternative treatments when mandatory
minimum sentences force their hands.”
Mandatory minimums result in lengthy sentences for low level, nonviolent offenders.
It is a common assumption that only dangerous and violent drug offenders are sentenced to
mandatory minimums. But mandatory drug sentences aren’t based on the drug offender’s
actions, role in the offense, or even prior criminal history. Instead, they are typically based on
the weight of the drugs and nothing more. For example, a drug offender who plays any part in
the sale of 100 grams of cocaine or heroin (the equivalent of a box of pudding mix) faces a
minimum sentence of eight years.5 When we ignore all other relevant factors (such as motive,
coercion or addiction), we cast too wide a net. But mandatory minimums forbid judges from
adjusting these one-size-fits-all sentences. Inevitably, people who don’t deserve harsh
sentences are punished out of proportion to their offenses. Worse, they are denied the
treatment they need.
Here are four real life examples:
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A young widow with two small children self-medicated with cocaine after her husband’s
death. She became involved with her supplier and was arrested after accompanying him
to a drug deal. On the advice of her attorney, she turned down a 3-year plea agreement
– the length of time that prosecutors thought would hold her accountable for her
actions. When convicted at trial, the judge was forced to sentence her to a 15-year
mandatory minimum.
A young man who was addicted to cocaine fell behind in his payments to his dealer. He
agreed to sell small amounts of the drug to pay off his debt. The police learned that he
was an addict from another dealer who offered information in exchange for reduced
charges. Instead of intervening or confronting him, the police waited until he had sold
4
Boston Globe, “Should Massachusetts repeal its mandatory minimum drug sentences?” (Feb. 28, 2015),
http://www.bostonglobe.com/metro/regionals/south/2015/02/28/two-views-whether-massachusetts-shouldrepeal-its-mandatory-minimum-drug-sentences/Gc7HEQXDwGKQVg3K4cwt8M/story.html.
5
M.G.L. c. 94C, section 32E(b)(3.
3
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enough cocaine to trigger a 15-year mandatory minimum sentence. He pleaded guilty
and received a 13-year sentence. The only treatment programs available to him in
prison were AA and NA meetings.
A young mother who was addicted to Percocet faced a 15-year mandatory minimum.
She accepted a plea deal for a 7-year mandatory minimum, but with no provision for
treatment – she had to get clean on her own. The judge who sentenced her said, “Had I
the authority, I would send you to jail for no more than one year . . . and a [treatment]
program after that.”
A young man who struggled with substance abuse since a teenager was addicted to
oxycodone by his early 20’s. He was arrested as he attempted to buy enough cocaine to
sell to finance his $300/day addiction. He is currently serving a 15-year mandatory
minimum sentence.
Prisons aren’t meant to be treatment centers. Professional services in a rehabilitative setting
should be the first choice for those who do not require incarceration to protect the public.
In conclusion, public safety is best served by acknowledging and treating the addiction that
fuels the demand side of the drug trade. FAMM does not argue that drug offenders who need
treatment should never be incarcerated. Instead, the courts should be able to craft thoughtful
and effective sentences that are tailored to the individual drug offender and his/her
circumstances. Doing away with mandatory minimums will not hamper the courts’ ability to
impose lengthy prison sentences for those who deserve them.6 But for addicts, treatment or a
combination of sentence to some incarceration and treatment would hold them accountable
for their crimes while also getting to the root of the problem. That will curb addiction, reduce
incarceration and recidivism, and contribute to healthy communities.
6
Last session, the Legislature increased the maximum possible sentence for heroin offenses to 30 years. M.G.L. c.
94C, sections 32E(c)(1) through (4).
4