Privacy SOS

New poll shows Massachusetts voters support ending mandatory minimums. Here’s why it matters.

A MassINC poll out today confirms that two-thirds of Massachusetts residents support treating substance use as a public health—not criminal justice—problem. An even larger margin supports ending mandatory minimum sentencing; only 8% of people polled said they preferred mandatory minimums to other forms of sentencing. That’s great news, because mandatory minimum sentencing laws contribute towards racial disparities in the system, threaten due process, and even delay the institution of electronic privacy rights. 
 
Despite the fact that Black and Latinx people make up only about 22% of Massachusetts residents, they constitute 57% of those sentenced to prison and a shocking 75% of people serving sentences for mandatory minimum drug offenses.
 
 
Mandatory minimum sentencing laws harm due process rights by allowing prosecutors to pressure defendants into forgoing trials and entering guilty pleas instead. If a prosecutor can charge someone with a mandatory minimum drug offense, the defendant risks being sentenced to that mandatory minimum if they’re found guilty at trial. Even if the sentence seems disproportionate to the judge or a jury, it won’t matter; prosecutors can control the process simply by charging a mandatory minimum. For that reason, just the threat of facing a mandatory minimum charge is often enough to pressure defendants into pleading guilty. 
 
That unfair sentencing system, which places far too much power in the hands of prosecutors, is part of the reason why nearly 95% of state level criminal prosecutions end in plea agreements, without ever going to trial. But due process isn’t the only loser here. Privacy rights are also substantially harmed by a system that, so reliant on plea deals, rarely presents electronic surveillance evidence before juries—and therefore rarely presents defendants with opportunities to challenge warrantless surveillance. 
 
Take the development of legal authorities governing law enforcement access to private text messages. In Massachusetts, there is no statute explicitly requiring prosecutors or cops to get a warrant to access text messages held by our phone companies. But courts across the country, including our high court in Massachusetts, have increasingly made it clear that the constitutions of the United States and the Commonwealth protect our digital data with warrant requirements. Despite that clear trend in the courts, the Boston District Attorney continued to obtain text messages without a warrant—an unconstitutional policy that only days ago was finally addressed by the courts.  Last week, the Supreme Judicial Court ruled that state prosecutors are required to obtain warrants before demanding our text messages from phone companies. 
 
What does privacy law have to do with mandatory minimums? If criminal cases don’t go to trial, there isn’t substantial opportunity for defense attorneys to challenge evidence on constitutional grounds. Those challenges are crucial in establishing 21st century electronic privacy law. 
 
Take the following example: The cops use a stingray device, without a warrant, to track a drug suspect. The stingray finds the suspect, and the cops arrest him. The prosecutor charges the person with drug trafficking, for which there is a mandatory minimum of 2.5 years, but says he’ll accept a plea deal for one year. The suspect’s defense lawyer, looking at the drugs on the table, tells her client that he faces a stark choice: Go to trial and risk serving the mandatory 2.5 year sentence if convicted, or plead guilty to the drug trafficking and serve one year instead. Hardly any lawyer is going to counsel her client to reject the plea.
 
But what about the warrantless stingray spying that helped the cops build their case and find their suspect? No one will ever hear about it, because there won’t be a trial. Therefore there won’t likely be substantial discovery, which would alert a defense attorney to the use of the stingray without a warrant. And so, in a system where plea agreements have effectively replaced trials for the vast majority of criminal defendants, the cops can go on using stingrays without warrants, simply because no judge has yet told them not to.
 
That’s how we get to a place where it takes two decades for a court to apply a warrant protection to text messages, despite the fact that law enforcement has apparently been obtaining them without warrants for perhaps as long as we’ve been sending them to one another. Mandatory minimums mean fewer trials. Fewer trials means fewer constitutional challenges. And fewer constitutional challenges means more warrantless surveillance. In this system, it takes an awfully long time—and just the right ingredients—for a constitutional challenge to find itself before a court (which is one of the main reasons legislatures must step in and pass comprehensive electronic privacy law). 
 
Our criminal justice system badly needs reform, and ending mandatory minimum sentencing for drug crimes is a crucial first step. Only then will drug defendants have a meaningful opportunity to seek due process in their cases. And that expansion of meaningful due process rights will yield important benefits for the rest of us, too, in the form of more and more constitutional challenges to warrantless electronic surveillance. Thus far the courts have been consistent on that issue in Massachusetts, meaning more trials and more constitutional challenges can only mean one thing: more privacy for everyone.
 
For racial justice, due process, and electronic privacy: tell your state representative and senator to support reforms to end mandatory minimum drug sentencing in Massachusetts.

© 2017 ACLU of Massachusetts.