A Mandatory Minimum Spat:

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.



  1. Much thanks again. Want more.

  2. correction: “they max them out”

  3. “…the prosecutor is concerned with what is best for the community.”

    Really? Projecting much? I think Russell Caswell of Tewksbury, Massachusetts would disagree with that statement:

    • Ed:

      You’ll see I covered the Caswell matter in great depth going back to the time it was happening. You can search back to see my position. Don’t confuse federal prosecutors with state prosecutors. The latter do hundreds more than the federals. They operate in a totally different environment. Sure I agree with you if all the prosecutors were as dumb and vindictive as those involved in the Caswell Motel then they should have no power to do anything.

  4. The Feds are different. If someone refuses to roll, they them max them out pretty much regardless of the individual circumstances. If you take it to trial, and, lose, you get double-on-the-bump for standing-up.

    • Khalid:

      Which sort of proves my point; it’s the judges who do the heavy hitting – they can always go under the prosecutions recommendation.

  5. What Gants actually said about 75 State Street:
    “That was a very tough case to prove. We ultimately could not prove it. We ultimately declined prosecution,” Gants said.
    Gants said investigators and prosecutors did not think they could win the case because the evidence was not strong enough.

    • Bob;

      That’s usually the way prosecutors decide cases. If you cannot prove a crime was committed you don’t prosecute. There was no crime involved in 75 State Street despite your wish otherwise.

  6. Henry:

    First off, halfway house is worse torture than doing time. Most hard cons skip it, and, do their bit right to the door. Sharp’s book is for fearful “white collar” offenders who want to somehow play the system, and, shorten their time. Once you hit the GULAG all that crap goes out the window. The BOP is a different universe with its’ own rules. I’ve only known a handful of guys who have beaten their cases, or, gotten some relief on their sentences, usually, after years of tedious hard work researching in prison libraries. I knew a guy named Spartacus who found a glitch in an HA guy’s conviction. He saved the dude twenty years. Late one night, his door slammed open. The Red&White carried him to a private place where they tatted him in. No book can teach you the rules.

  7. No. No. No.

    I don’t think it helps justice when a Prosecutor can threaten someone like Aaron Schwartz with 50 years unless he gives up his right to trial and takes the proffered six months sentence.

    Do you feel lucky kid? You know we’ll pull out the stops and bankrupt your family if you don’t take our offer. And then it’s fifty years hard time for illegal Xeroxing.

    That smacks of extortion and I don’t care how “efficiently” it allows the system to run.

    And please tell me in what venue has having the charging power run for office not led to more and more draconian sentences as they compete to be “tough on crime”.

    • Jeff:

      Can’t quite follow you. It has been the tradition in our criminal justice system since it was created to give the prosecutors the power to decide who and when to prosecute and the sentence that is to be recommended. You point to an abuse by the Boston prosecutor’s office which has a reputation for doing that. Most of the cases, the thousands upon thousands you haven’t heard about run through the situation fairly. Pleas bargaining usually is done because it favors the defendant reducing his sentence in return for recognition of his act. The extortion you talk about rarely happens.

  8. You could always buy the manual from Amazon:

    Reduce My Prison Sentence: Effective Tips, Tricks, Secrets and Strategies to Reduce A Federal Prison Sentence – Real Case Examples (Volume 1) Paperback – August 7, 2013 By Stephen Sharp

    The complete prison sentencing book to help understand many of the federal laws that control a prison sentence and time that is actually spent behind bars. Read true testimony about life in federal prison and how to cope and survive a prison sentence. Discover amazing stores and facts inside on the 5K1 Rule, Plea Bargaining, What Your Attorney Doesn’t Tell You, Getting to the Halfway House, Safety Relief Valve, Drug Charges, New Crack Cocaine Laws and more

  9. There’s only one good thing about mandatory minimums. It exposes rats. If a guy gets a departure from the “mins” you know for sure that he is no good. When folks meet in Fed joints, they exchange PSIs. If you see a departure in someone’s PSI, you know, automatically, despite all the bull-shit they might put out, that that person rolled. When a guy can’t seem to find his PSI, you know he’s a cheese-eater. The rat-jacket sticks to dudes for their whole bit. Prison can be a lonely place for squeakers.

    • Khalid:

      Can’t agree. I operated on the state side and the federal side may be different. I reduced mandatory minimums or refused to charge them based on the circumstances involved and the person who committed the offense. The dispute I’m talking about is on the state side.

  10. That’s “spit out the Kool Aide”

  11. Disagree Matt. How about the defense being the ideal person to know the best sentence.
    That was scary shit Conley said. The Mass Declaration of Rights gave us the judiciary for a reason. The chief arbitrator. The lifetime appointment.
    Hitler reduced crime to all time law. So didn’t Stalin.
    Spit the look aide out Matt 🙂

    • Ernie:

      Never met a defense lawyer who wouldn’t suggest probation was a good sentence for his client. Plea bargaining involves a defense counsel who makes the deal with a prosecutor. You have to have been in court when some of the “kind hearted” judges walked people and see some of the havoc that was subsequently brought about. In district court you don’t have minimum mandatory sentences for the most part and you should see the constant merry-go-round of probation, probation, probation, 1 month, probation, 3 months, probation etc. The judges at that level are just processing things without much thought. How many guys from the Houses of Correction end up going in and out until they finally get a real sentence to prison. For crimes against people and crimes against property such as home break ins, arsons, or stealing cars, there is a real victim. Have you ever had your car stolen or home broken into? Do you know the feeling after that of the victim?
      Neither Hilter nor Stalin reduced crime; they caused it to increase massively because they were the sponsors of the crime. That’s a poor analogy. Conley is absolutely right; the judges are too removed from the rough and tumble to get it right. Look at the crime statistics; they’ve been going down. Do you think there is any relationship between that and the effectiveness of the present situation. Conley is only for continuing what has always been done; doing what the chief justice suggests is the scary thing. We know that because in the past it did little to put a dent in crime.