EXPANDING MANDATORY MINIMUMS- A STEP IN THE WRONG DIRECTION

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EXPANDING MANDATORY MINIMUMS- A STEP IN THE WRONG DIRECTION

April 8, 2010 by David Walsh-Little

It has now been thirty some years of fighting and losing our continuing “War on Drugs”. Stressing the quantity and not the quality of the cases charged, drug users and low level dealers account for the majority of the arrests and prosecutions. As corners are targeted and “cleared”, a new set of faces claim the territory creating the fodder for the next undercover drug bust. Prison populations and the needed new prison construction have increased proportionally. Although illegal drugs exist in all neighborhoods, the targets of the war are in poor and minority communities. The narcotics offensive has left many distrustful of law enforcement, unemployable because of their criminal record, and further marginalized from civil society.

A fresh approach that curtails the more draconian penalties of the narcotics laws would allow more resources to be diverted to drug treatment and grassroots economic development in these communities. Such an approach though, still isn’t carrying the day in the Maryland House of Delegates. In a unanimous vote the lower legislative body passed House Bill 517 which expands the mandatory minimum sentence of twenty five years without parole for certain repeat drug offenders. The bill is now pending in the Maryland Senate where more progressive voices will hopefully prevail.

In Maryland, like many jurisdictions, drug crimes can be punishable by mandatory minimum penalties- ten years without parole for a second offense, twenty five years without parole for a third, forty years without parole for a fourth offender. The last being more punitive than the maximum penalty for the crimes of robbery, assault, and burglary. Some state legislatures, New York for example, have recognized the problems with these mandatory sentences and have curtailed their scope. Unfortunately, The House of Delegates wants to pursue a different path.

Under present law, a defendant has to serve a 180 day sentence in a correctional institution for a drug felony and additionally be convicted of another drug offense to qualify for the twenty five year without parole sentence. If House Bill 517 becomes law, a prosecutor can seek the mandatory minimum when the 180 day sentence is served after being convicted of only a conspiracy to commit one of these narcotics crimes.

Proving a conspiracy requires no evidence of any overt act, but just an agreement between two or more people to commit a crime. Under Maryland law, a conspiracy to commit a drug felony, such as distribution of cocaine, is itself a misdemeanor, not a felony. The proposed change broadens the scope of the mandatory sentence to include defendants who have no prior felonies on their record. Two prior misdemeanor convictions of conspiring to sell drugs will do. As long as the required 180 day sentence was served on one of them, then off to prison for twenty five years if the bill becomes law.

This same bill was rejected in 2008 and 2009 and should be rejected again. The bill applies to narcotics crimes, the centerpiece of the drug war, but not cases involving hallucinogenic drugs. If this bill was based on sound policy and not on looking tough on crime in a gubernatorial election year, why not try and change it for both sets of drugs? It is hard to know how many additional people would be subject to a twenty five year sentence without parole if this proposal becomes law. More people doing more prison time for non-violent drug offenses does little to solve the intractable social problems that underlie and feed the drug trade. This bill is more of the same problem instead of a solution. It is time to move in a more humane and just direction.

It has now been thirty some years of fighting and losing our continuing “War on Drugs”. Stressing the quantity and not the quality of the cases charged, drug users and low level dealers account for the majority of the arrests and prosecutions. As corners are targeted and “cleared”, a new set of faces claim the territory creating the fodder for the next undercover drug bust. Prison populations and the needed new prison construction have increased proportionally. Although illegal drugs exist in all neighborhoods, the targets of the war are in poor and minority communities. The narcotics offensive has left many distrustful of law enforcement, unemployable because of their criminal record, and further marginalized from civil society.

A fresh approach that curtails the more draconian penalties of the narcotics laws would allow more resources to be diverted to drug treatment and grassroots economic development in these communities. Such an approach though, still isn’t carrying the day in the Maryland House of Delegates. In a unanimous vote the lower legislative body passed House Bill 517 which expands the mandatory minimum sentence of twenty five years without parole for certain repeat drug offenders. The bill is now pending in the Maryland Senate where more progressive voices will hopefully prevail.

In Maryland, like many jurisdictions, drug crimes can be punishable by mandatory minimum penalties- ten years without parole for a second offense, twenty five years without parole for a third, forty years without parole for a fourth offender. The last being more punitive than the maximum penalty for the crimes of robbery, assault, and burglary. Some state legislatures, New York for example, have recognized the problems with these mandatory sentences and have curtailed their scope. Unfortunately, The House of Delegates wants to pursue a different path.

Under present law, a defendant has to serve a 180 day sentence in a correctional institution for a drug felony and additionally be convicted of another drug offense to qualify for the twenty five year without parole sentence. If House Bill 517 becomes law, a prosecutor can seek the mandatory minimum when the 180 day sentence is served after being convicted of only a conspiracy to commit one of these narcotics crimes.

Proving a conspiracy requires no evidence of any overt act, but just an agreement between two or more people to commit a crime. Under Maryland law, a conspiracy to commit a drug felony, such as distribution of cocaine, is itself a misdemeanor, not a felony. The proposed change broadens the scope of the mandatory sentence to include defendants who have no prior felonies on their record. Two prior misdemeanor convictions of conspiring to sell drugs will do. As long as the required 180 day sentence was served on one of them, then off to prison for twenty five years if the bill becomes law.

This same bill was rejected in 2008 and 2009 and should be rejected again. The bill applies to narcotics crimes, the centerpiece of the drug war, but not cases involving hallucinogenic drugs. If this bill was based on sound policy and not on looking tough on crime in a gubernatorial election year, why not try and change it for both sets of drugs? It is hard to know how many additional people would be subject to a twenty five year sentence without parole if this proposal becomes law. More people doing more prison time for non-violent drug offenses does little to solve the intractable social problems that underlie and feed the drug trade. This bill is more of the same problem instead of a solution. It is time to move in a more humane and just direction.