It’s reportedthat the Suffolk DA Dan Conley had a spat with the Chief Justice of the Massachusetts Supreme Court Ralph Gants over the issue of mandatory minimum sentences. I have to side with Conley and that’s not because our names sound the same; nor, because I was an assistant DA for so many years. I do so for the simple reason that the need for mandatory minimum sentences came about because the members of the legislature who make our laws looked at the way the judges were sentencing criminals and decided they were not doing their jobs properly.
Justice Gants who by the way was the one who cleared Billy Bulger of any criminal involvement in the 75 State Street matter when he worked as an assistant U.S. attorney when Jerry O’Sullivan was acting U.S. attorney is reported to have said: “As long as prosecutors, rather than judges, hold the cards that determine sentences, we will not have individualized, evidence-based sentences.”
That is so wrong that I do not know where to begin. Let me start with what Conley is reported to have said: “Prosecutors who are making decisions on what sentences to bring and what charges to bring has driven down crime to unprecedented levels. It’s part of prosecutors’ toolbox, and I don’t know how anyone can argue with it.” That is true that taking much of the sentencing decision out of the hands of the judges and leaving it in the hands of the DA, an elected official accountable to the public, is the way a system should function and how it has always functioned.
We have always had mandatory minimum sentences for murder. I don’t think that Justice Gants is proposing the judges be permitted to ignore them and come up with “individualized, evidence-based sentences.” If not for murders, why should they be allowed to do it for other crimes?
I suppose there are few of you who don’t know how the criminal justice system operates. Conley gave a hint when he is quoted as saying that district attorneys are “in a better position than a member of the judiciary to make the call on the amount of time those individuals ought to be incarcerated.” That has been the case for as long as I have been around which is part of what is known as “plea bargaining.” The DA and the defense lawyer in most cases figure out a reasonable sentence and then give it to the judge to stamp his approval on. Well over 90% of the cases are handled that way with the judge following along with what the parties have agreed upon as a fair disposition.
The DA’s are in that position because they deal with the cops and the victims and the representatives of the defendant in informal sessions. They can get a better understanding of many factors that the judge would never gather from the mere probation report and the minimum time the defendant stands in court before him. The DA’s primary job is to deal with the criminals in his jurisdiction and this ongoing involvement gives him a clear understanding not only of the criminal act in relation to other acts but also the effect it may have had on the neighborhood. The judges come into the jurisdiction on a temporary basis and move to another one; they also deal with matters of civil nature. They are less likely to have the critical understanding necessary to make the right sentences.
It is precisely the type of state that Justice Gants wants us to return to that has proven not to work. Here’s another term: “judge shopping.” Why do you think such a term exists? It is simply because some judges will always give unconscionably light sentences to any defendant who stands before him rather than a sentence that is appropriate to the crime and the person.
I experienced it often. When judges were in town who gave fair sentences the defense counsel would try to avoid them by coming up with all sorts of reason to kick the case down the road to a judge who was noted for throwing marshmallows. That’s what a good defense counsel does. He is concerned with what is best for his client; the prosecutor is concerned with what is best for the community.
In an ideal world judges would not be all over the road in handing out sentences but in our world that’s what exists. Two defendants with similar records and crimes can get totally disparate sentences depending on the judge they stand before. The legislature has recognized that some crimes are so detrimental to society that a uniformity in sentencing is a must. History has shown that it is right.
There is one caveat I add to this. The DA must truly look at each case in the minimum mandatory area carefully. There are some where the person committed an act that calls for such a sentence but the history and background of the defendant and the circumstances suggests another type charge be made that will not send the person to prison. The DA frames the charges; the wise DA frames them so as not to do an injustice; the wise DA is also not afraid of using a nol pros taking away the mandatory minimum sentence in the appropriate cases.
Historically the DA decides whether to charge a crime; he also decides what crime will be charged. He controls the process up to the time he moves for sentencing after the defendant admits his guilt. That must continue. So must the knowledge that judges have so fumbled the ball in the past in sentencing defendants that in some cases they can no longer be trusted to do the right thing.