Samuel Goldberg has been a Massachusetts criminal defense attorney for 20 years. Prior to that, he was a New York state prosecutor. He has published various articles regarding the practice of criminal law and frequently provides legal analysis on radio and television, appearing on outlets such as the Fox News Channel, Court TV, MSNBC and The BBC Network. To speak to Sam about a criminal matter call (617) 492 3000.

ARE THERE FEWER UNFAIR CRIMINAL SENTENCES IN MASSACHUSETTS IN DRUG CRIMES ?

This past Sunday, you may have woken up early. 7:00 AM-type early. At the time, perhaps you were listening to Emerson College’s radio station, WERS, located at 88.9 FM on your radio dial. If so, you may have heard me talking about, what else, the criminal justice system.

The topic of the overall program was to discuss progress in various areas of our sociological life. I was there to discuss what progress has been made in criminal sentences involving incarceration. Specifically, whether the unfairness’s and inequities we have seen in the past persist.

Unfortunately, I was not exactly a beacon of hope.

Well, that is not entirely true. As I said on the program, and have said in my blogs, I refuse to believe there is no hope. However, the light shining off of the “progress” thus far made is more tantamount to a dim “moth-stained naked light” as described in Alice Cooper’s “The Quiet Room” than one the bright lights of Emerald City of the more well-known land of Oz.

Attorney Sam’s Take On The Realities Of Criminal Sentencing

To be sure, there are some reasons for hope.

For example, there is some attention now being paid to the drug and alcohol addicted and the recognizing that they suffer from an illness…not simply a wish to create havoc.

However, such programs are quite limited and, I would suggest, short-sighted. They do not seem to recognize that the road to recovery in these areas often has bumps, if not boulders, midway through. The approach that seeks to give aid instead of incarceration in most instances is a one-shot deal. If the defendant backslides, it is often into a room surrounded by steel bars.

This is particularly troubling as the defendant’s daily existence has now, simply by being arrested and arraigned, become even more difficult. Simply by donning the last name of “defendant”, he or she has a criminal record which will be seen by anyone considering that person for a job or higher education.

Such branding and newly presented barriers would bring stress and difficulty for anyone. I would suggest that for an addict it is even worse.

Such difficulties also complicate hope for recovery in another way. Once one has even more difficulty “bettering themselves”, whether by work or education, one’s finances tend to suffer. This may seem obvious, but it is not really recognized by the criminal justice system.

There are various fees and fines that the system expects a criminal defendant who has been “given a break” to pay…in a timely manner no less. These include such luxuries as GPS bracelets, probation fees, program costs, etc.

“Well, Sam, what if you simply can show that you cannot pay?”

Then you are likely to be surrendered by the Department of Probation and incarcerated as you might have been in the first place.

While inequities of criminal sentences may have improved a bit between the races of “black” and “white”, they are alive and well between the seeming races of “destitute” and “respectable”.

Today’s criminal justice system has a difficult time making allowances to those without homes, jobs or emotional stability. You are more likely to find them people incarcerated.

By the way, if you wonder if the resulting labeling and experiences of the above help to perpetuate the problem, if not make it worse, I would opine that the answer is a resounding “Yes!”.

Another area in which the misinformed assume great progress is the changed law regarding marijuana.

Folks assume that if they are found smoking marijuana with their friends, they are not likely to be facing criminal charges from the Commonwealth of Massachusetts (as opposed to the federal government, which is an example of the personification of “Ludicrous” for another day).

They are incorrect.

You see, the way Massachusetts law stands, you can have up to a certain amount for your own personal use. However, if you are possessing that marijuana with intent to distribute it, then you are not only committing the misdemeanor that straight possession of marijuana once was, but you are committing a felony! That felony charge is possession with intent to distribute.

Distribution does not have to be for a price. If you share, give or donate the weed, you are distributing under Massachusetts law.

If you are smoking that joint and sharing some of that weed with your friends, under the law, you are distributing the marijuana. Clearly, having distributed it, you had the intent to distribute it. So you can be charged with Possession With Intent To Distribute as well as the distribution itself.

The result? You are at risk to be arrested for the felony charge(s). But that’s not all!

Since the charge is Intent to Distribute, especially if you are in Suffolk County, you are probably going to be charged with having done so in a “School Zone”. This means that you are now facing a mandatory minimum sentence of two years.

Even if it is your first offense.

Such mandatory minimum sentences, by the way, are our legislatures’ answer (with cheer-leading encouragement by district attorneys) to satisfying our demand to be “tough on crime”.

These days, being labeled as being “lenient on crime” is a political death knell. Even Massachusetts judges have been attacked and drummed off the bench for having be seen as too lenient. Thus, the politicians pass these laws which strip judges and prosecutors of exercising discretion in the appropriate handling of a particular case.

“Well, don’t the judges and prosecutors do all they can to come as close to the line as possible and give ‘breaks’ when they deem appropriate?”

The problem is that nobody likes to appear in the news the next day should things go wrong. The line I hear so often is “What if I give him a break and he goes out and kills somebody?”

I try to explain that the defendant is facing a charge like “disorderly conduct” or “Possession With Intent” and has no history of violence. You would be surprised how often that does not seem to matter.

The cowardice of the political approach to “throw raw meet at the rabble” notwithstanding the fact that they know the problems the quick fix will cause, is forgiven because, frankly, the general public will never know. Ignorance, in this case, is bliss.

And dangerous.

It all changes when you or someone you love is suddenly facing criminal charges.

That’s when the light becomes quite bright.

Harshly bright.

Wouldn’t it be better if we could work on admitting and fixing the problem before that particular spotlight?

This is why blogs like this, by the way, are written. If the public does not know, they can do nothing to make changes.

And the machine will just keep on keeping on regardless of those crushed beneath it.

“Aren’t You over-stating it a bit, Sam?”

I am barely scratching the surface.

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