Compromise Bill Removes Some Drug Minimum Sentences; No Romeo-and-Juliet

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By Matt Murphy

BOSTON — A handful of mandatory minimum sentences for drug offenses would be repealed and the state’s approach to juvenile offenders overhauled in a sweeping criminal justice bill released Friday by Massachusetts House and Senate lawmakers.

State Senator Will Brownsberger (D-Belmont), state Representative Claire Cronin (D-Easton), and state Representative Ron Mariano (D-Quincy) walked into the Senate clerk’s office Friday bearing a compromise criminal justice reform bill.

The completion of the compromise bill marks the end to months of private negotiations in the Legislature over what could become a signature achievement for the Legislature this election year.

While votes in both the House and Senate are not expected for another week, reform advocates are already celebrating the breadth of a bill they said would make a major impact for people and minority communities negatively impacted by past tough-on-crime policies that emphasized punishment over rehabilitation.

“The agreement we’ve reached is about lifting people up, not locking them up,” said Senator Brownsberger, the Senate chairman of the Judiciary Committee and the lead Senate negotiator on the bill.

He described the current system lawmakers are looking to reform as a “sprawling bureaucracy that ensnares people but from which they cannot escape.”

The bill would eliminate some mandatory minimum sentences for what lawmakers described as “low-level drug offenses,” including first and second offenses for cocaine possession, and require district attorneys to create pre-arraignment diversion programs for veterans and those suffering from mental health and substance abuse disorders.

It would also make eligible for expungement from criminal records some crimes committed by offenders up to age 21, while adults would be able to apply to have their records expunged of crimes that are no longer considered illegal in Massachusetts, such as possession of marijuana.

The compromise bill (S 2371) filed by a six-member conference committee Friday marries competing versions that passed the House and Senate last year, and will move first to the Senate floor where a vote is not expected until the first week of April.

The Senate at the same time will take up a separate piece of legislation that Governor Charlie Baker filed last year, and which passed the House on November 14, that was born out of a Council of State Governments study of the state’s criminal justice system and recommends pathways for some inmates to rehabilitate themselves and get out of prison early.

Asked whether the Senate held up the so-called CSG bill to gain leverage over the House in negotiations on the broader reform package, Brownsberger said, “I hate the word leverage, but we did think it should all happen at the end of the day.”

The bill includes a measure pushed by Baker this week that would amend the state’s fentanyl trafficking law to allow prosecutors to bring a trafficking charge, which carries a sentence of up to 20 years, for offenders caught with a mixture of 10 grams or more that contains any amount of fentanyl. Baker and law enforcement officials this week noted the current law requires prosecutors to prove that a drug sample has at least 10 grams of pure fentanyl, which the state drug lab is not equipped to detect.

The conference committee also recommended scheduling fentanyl and carfentanil, two deadly synthetic opioids that have contributed to a rising percentage of opioid overdose deaths, as Class A narcotics, and adopting the federal drug registry for all synthetic opioids so that the state can keep up with the evolving drug market.

“Let the message be clear. Fentanyl and carfentanil are not welcome in Massachusetts,” said Cronin, the House chairman of the Judiciary Committee and that branch’s lead negotiator on the bill.

Cronin said that the bill broadly aims to reduce recidivism, enhance public safety, and save money for taxpayers by diverting people that would otherwise be sent to prison to treatment and other programs.

Neither Cronin nor Brownsberger could put numbers to the amount of money the state will save, or how many people could avoid jail time as a result of the bill.

“It’s impossible to actually measure all that, but we expect it will have a significant effect. Ultimately, it depends on how people use the tools we’ve created for them,” Brownsberger said.

The final bill does not propose to raise the age of juvenile court jurisdiction from 18 to 19, but it does raise the age of criminal responsibility from 7 to 12. It also prevents correction facilities from using solitary confinement as a punishment tool for juveniles and pregnant women.

The bill also makes reforms to the bail system by making sure no one will be imprisoned for an inability to pay court fees and fines, lifts the threshold for felony larceny from $250 to $1,200, and creates new penalties for repeat offenders who are charged with their sixth, seventh, eighth, or ninth operating under the influence violation.

There is also a provision to allow for the compassionate release of terminally ill inmates, and the bill stipulates parents and children can’t be required to testify against one another in court

“Other bills made small dents. This makes a big bang,” said conferee state Senator Cynthia Creem (D-Newton).

House Majority Leader Ronald Mariano, a 27-year veteran of the Legislature who has served on numerous conference committees, said he’s never participated in one that started with as wide a philosophical gap between the House and Senate.

The Quincy Democrat said that despite times when talks grew “contentious,” the Democrats and Republicans on the committee kept an open line of dialogue that enabled them to reach a positive conclusion.

The House will get to debate and vote on the final package after the Senate before it reaches Governor Baker’s desk for his consideration. The report, which was filed with the Senate clerk on Friday, cannot be amended under legislative rules.

Baker has not filed comparable legislation, so it’s difficult to know how the administration will receive the comprehensive proposal, or if there are sections that might prompt the governor to return the bill with amendments.

“The Baker-Polito Administration is pleased that the committee has reached an agreement and will carefully review final legislation that reaches the governor’s desk,” spokesman Brendan Moss said.

Brownsberger, who published an outline of the compromise on Friday, said the conference committee opted against changing the state’s statutory rape laws, which was one of the more sensitive topics of debates when the bills were last considered in the House and Senate. Lawmakers had considered instituting a “Romeo-and-Juliet clause” that would have lowered the age of consent for minors close in age.

Lew Finfer, with the Massachusetts Communities Action Network, said he was pleased with many sections of the bill, including bail reform and the elimination of some mandatory minimums. Though he would have liked to see the age of juvenile court jurisdiction raised to 19, he said, “There’s a lot of real positives in the bill. Looking back a year ago, it’s better than we thought might have been possible.”

Senator Sonia Chang-Diaz, a Jamaica Plain Democrat, also praised the scope of the bill after many pro-reform Democrats last year publicly worried that it would get pared back due to political pressures.

“It’s going to put us on a path as a state to right a moral wrong,” Chang-Diaz said. “This is definitely a day for celebration. A massive and joyful turning point for the state, something that’s finally going to honor the needs of the communities that experience the most crime and have gone ignored for too long.”

Gavi Wolfe, legislative director of the American Civil Liberties Union, said the group was pleased to see some mandatory sentences repealed in the bill, but called it disappointing that the conference report recommends a new mandatory minimum sentence for fentanyl trafficking of three-and-a-half years.

“We have a situation where public officials acknowledge the opioid crisis is a public health problem, but remain locked into this view of using criminal interventions and putitive measures,” he said.

Overall, however, Wolfe said the ACLU was encouraged by the bill, including a provision that requires the collection and publishing of arrest data that he said would help create a more complete picture of the criminal justice system.

“This represents really important progress for criminal justice reform in Massachusetts,” he said.