Reforming Sentencing for Retail Drug Dealing Offenses

Representative Will Brownsberger, June 2008

June 3, 2008 Representative Will Brownsberger 2

Retail Drug Dealing

• Distribution or possession with intent to distribute

• Quantities below 14 gram thresholds for trafficking mandatories under Section 32E

• Variables affecting sentencing exposure– Drug class – Place (school zone – the usual case)– Buyer (sales to minors – very rare)

June 3, 2008 Representative Will Brownsberger 3

Issues in Retail Sentencing

• Failure to effectively protect schools – zone so large that all areas school zones

• Excessive incarceration in some instances due to mandatories

• Uncertainty that encourages risk-taking by defendants – Uncertainty of applicable law (school zone)– High but unknown probability of plea bargain

June 3, 2008 Representative Will Brownsberger 4

Most retail cases occur in school or park zones – study of 1998 data:

• Fall River, 84%

• New Bedford, 79%

• Springfield, 79%

• Corroborating data– Boston and other locations -- anecdotal– New Jersey Sentencing Commission

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Usual Retail Sentencing Exposure

• School zone (County HOC) – two years

• Second offense (State DOC)– five years

• History: Shift of incarceration burden from DOC to HOC after passage of school zone

June 3, 2008 Representative Will Brownsberger 6

Proposed retail reform

• Consistent 6/18 month (first/second) for heroin and cocaine

• Consistent 3/12 month (first/second for Class C – relatively rare)

• Elimination of mandatories for marijuana

• Zone enhancement only within 100 feet of schools (roughly 10% of cases)

June 3, 2008 Representative Will Brownsberger 7

Pre-trial detention for dangerousness

• Currently available for second offense retail, but not first

• Expand availability to first offense• Detention combined with reduced

exposure will result in higher plea rate– Benefits defendants

• Early warning• Fewer big sentences

– Steamlines system

June 3, 2008 Representative Will Brownsberger 8

Possible Amendments to 1336

• Eliminate five year upgrade for remaining school zones

• Change section 10 language (amendment to s.32H) to allow parole eligibility (but not suspension)8

• Limit or define standards for retail pre-trial detention under dangerousness– Class A and B only– Pattern of dealing on more than one day