SENATE DOCKET, NO. 1181        FILED ON: 1/18/2013

SENATE  .  .  .  .  .  .  .  .  .  .  .  .  .  .  No. 667

The Commonwealth of Massachusetts

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PRESENTED BY:

Cynthia S. Creem

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To the Honorable Senate and House of Representatives of the Commonwealth of Massachusetts in General
Court assembled:

The undersigned legislators and/or citizens respectfully petition for the adoption of the accompanying bill:

An Act to repeal mandatory minimum sentences for non-violent drug offenses.

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PETITION OF:

SENATE DOCKET, NO. 1181        FILED ON: 1/18/2013

SENATE  .  .  .  .  .  .  .  .  .  .  .  .  .  .  No. 667

The Commonwealth of Massachusetts

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In the Year Two Thousand Thirteen

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An Act to repeal mandatory minimum sentences for non-violent drug offenses.

Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, as follows:
 

SECTION 1. Chapter 94C of the General Laws, as appearing in the 2010 Official Edition, is hereby amended by striking out section 32, as amended by chapter 192 of the acts of 2012, and inserting in place thereof the following section:-

Section 32.  (a) Any person who knowingly or intentionally manufactures, distributes, dispenses, or possesses with intent to manufacture, distribute or dispense a controlled substance in Class A of section 31 shall be punished by imprisonment in the state prison for not more than 10 years or in a jail or house of correction for not more than 2½ years or by a fine of not less than $1,000 nor more than $10,000, or by both such fine and imprisonment.

(b) Any person convicted of violating this section after 1 or more prior convictions of manufacturing, distributing, dispensing or possessing with the intent to manufacture, distribute or dispense a controlled substance as defined by section 31 of this chapter under this or any prior law of this jurisdiction or of any offense of any other jurisdiction, federal, state or territorial, which is the same as or necessarily includes the elements of said offense shall be punished by a term of imprisonment in the state prison for not more than 15 years and by a fine of not less than $2,500 nor more than $25,000.

SECTION 2. Chapter 94C of the General Laws, as so appearing, is hereby further amended by striking out section 32A, as amended by chapter 192 of the acts of 2012, and inserting in place thereof the following section:-

Section 32A.  (a) Any person who knowingly or intentionally manufactures, distributes, dispenses or possesses with intent to manufacture, distribute or dispense a controlled substance in Class B of section 31 shall be punished by imprisonment in the state prison for not more than 10 years, or in a jail or house of correction for not more than 2½ years, or by a fine of not less than $1,000 nor more than $10,000, or both such fine and imprisonment.

(b) Any person convicted of violating sub-section (a) after 1 or more prior convictions of manufacturing, distributing, dispensing, or possessing with the intent to manufacture, distribute or dispense a controlled substance as defined by section 31 of this chapter under this or any other prior law of this jurisdiction or of any offense of any other jurisdiction, federal, state, or territorial, which is the same as or necessarily includes the elements of said offense shall be punished by a term of imprisonment in the state prison for not more than 10 years and by a fine of not less than $2,500 nor more than $25,000.

(c) Any person who knowingly or intentionally manufactures, distributes, dispenses or possesses with intent to manufacture, distribute or dispense phencyclidine or a controlled substance defined in clause (4) of paragraph (a) or in clause (2) of paragraph (c) of class B of section 31 shall be punished by a term of imprisonment in the state prison for not less than 2½ nor more than 10 years or by imprisonment in a jail or house of correction for not more than 2½ years and by a fine of not less than $1,000 nor more than $10,000, or both such fine and imprisonment.

(d) Any person convicted of violating the provisions of subsection (c) after 1 or more prior convictions of manufacturing, distributing, dispensing or possessing with the intent to manufacture, distribute or dispense a controlled substance, as defined in section 31 or of any offense of any other jurisdiction, either federal, state or territorial, which is the same as or necessarily includes, the elements of said offense, shall be punished by a term of imprisonment in the state prison for not more than 15 years and by a fine of not less $2,500 nor more than $25,000.

SECTION 3. Chapter 94C of the General Laws, as so appearing, is hereby further amended by striking out section 32B, as amended by chapter 192 of the acts of 2012, and inserting in place thereof the following section:-

Section 32B.  (a) Any person who knowingly or intentionally manufactures, distributes, dispenses or possesses with intent to manufacture, distribute, or dispense a controlled substance in Class C of section 31 shall be imprisoned in state prison for not more than 5 years or in a jail or house of correction for not more than 2½ years, or by a fine of not less than $500 nor more than $5,000, or both such fine and imprisonment.

(b) Any person convicted of violating this section after 1 or more prior convictions of manufacturing, distributing, dispensing or possessing with the intent to manufacture, distribute or dispense a controlled substance as defined by section 31 under this or any prior law of this jurisdiction or of any offense of any other jurisdiction, federal, state or territorial, which is the same as or necessarily includes the elements of said offense shall be punished by a term of imprisonment in the state prison for not less than 2½ nor more than 10 years, or by imprisonment in a jail or house of correction for not more than 2½ years and by a fine of not less than $1,000 nor more than $10,000, or both such fine and imprisonment.

SECTION 4. Chapter 94C of the General Laws, as so appearing, is hereby further amended by striking out section 32E, as amended by chapter 192 of the acts of 2012, and inserting in place thereof the following section:-

Section 32E.  (a) Any person who trafficks in marihuana by knowingly or intentionally manufacturing, distributing, dispensing or cultivating or possessing with intent to manufacture, distribute, dispense or cultivate, or by bringing into the commonwealth a net weight of 50 pounds or more of marihuana or a net weight of 50 pounds or more of any mixture containing marihuana shall, if the net weight of marihuana or any mixture thereof is:

(1) Fifty pounds or more, but less than 100 pounds, be punished by a term of imprisonment in the state prison for not less than 2½ nor more than 15 years or by imprisonment in a jail or house of correction for not more than 2½ years and by a fine of not less than $500 nor more than $10,000, or both such fine and imprisonment.

(2) One hundred pounds or more, but less than 2,000 pounds, be punished by a term of imprisonment in the state prison for not more than 15 years and by a fine of not less than $2,500 nor more than $25,000.

(3) Two thousand pounds or more, but less than 10,000 pounds, be punished by a term of imprisonment in the state prison for not more than 15 years and by a fine of not less than $5,000 nor more than $50,000.

(4) Ten thousand pounds or more, be punished by a term of imprisonment in the state prison for not more than 15 years and by a fine of not less than $20,000 nor more than $200,000.

(b) Any person who trafficks in a controlled substance defined in clause (4) of paragraph (a) or in clause (3) of paragraph (c) of Class B of section 31 by knowingly or intentionally manufacturing, distributing or dispensing or possessing with intent to manufacture, distribute or dispense or by bringing into the commonwealth a net weight of 18 grams or more of a controlled substance as so defined, or a net weight of 18 grams or more of any mixture containing a controlled substance as so defined shall, if the net weight of a controlled substance as so defined, or any mixture thereof is:

(1) Eighteen grams or more but less than 36 grams, be punished by a term of imprisonment in the state prison for not more than 15 years and by a fine of not less than $2,500 nor more than $25,000.

(2) Thirty-six grams or more, but less than 100 grams, be punished by a term of imprisonment in the state prison for not more than 20 years and by a fine of not less than $5,000 nor more than $50,000.

(3) One hundred grams or more, but less than 200 grams, be punished by a term of imprisonment in the state prison for not more than 20 years and by a fine of not less than $10,000 nor more than $100,000.

(4) Two hundred grams or more, be punished by a term of imprisonment in the state prison for not more than 20 years and by a fine of not less than $50,000 nor more than $500,000.

(c) Any person who trafficks in heroin or any salt thereof, morphine or any salt thereof, opium or any derivative thereof by knowingly or intentionally manufacturing, distributing or dispensing or possessing with intent to manufacture, distribute or dispense or by bringing into the commonwealth a net weight of 18 grams or more of heroin or any salt thereof, morphine or any salt thereof, opium or any derivative thereof or a net weight of 18 grams or more of any mixture containing heroin or any salt thereof, morphine or any salt thereof, opium or any derivative thereof shall, if the net weight of heroin or any salt thereof, morphine or any salt thereof, opium or any derivative thereof or any mixture thereof is:

(1) Eighteen grams or more but less than 36 grams, be punished by a term of imprisonment in the state prison for not more than 20 years and by a fine of not less than $5,000 nor more than $50,000.

(2) Thirty-six grams or more but less than 100 grams, be punished by a term of imprisonment in the state prison for not more than 20 years and by a fine of not less than $5,000 nor more than $50,000.

(3) One hundred grams or more but less than 200 grams, be punished by a term of imprisonment in the state prison for not more than 20 years and by a fine of not less than $10,000 nor more than $100,000.

(4) Two hundred grams or more, be punished by a term of imprisonment in the state prison for not more than 20 years and by a fine of not less than $50,000 nor more than $500,000.

SECTION 5. Chapter 94C of the General Laws, as so appearing, is hereby further amended by striking out section 32H, as amended by chapter 192 of the acts of 2012, and inserting in place thereof the following section:-

Section 32H.  Prosecutions commenced under section 32F or section 32K shall not be placed on file or continued without a finding, and the sentence imposed upon a person convicted of violating any provision of said sections shall not be reduced to less than the mandatory minimum term of imprisonment as established in said section, nor shall any sentence of imprisonment imposed upon any person be suspended or reduced until such person shall have served said mandatory minimum term of imprisonment.

A person convicted of violating said sections shall not, until the person shall have served the mandatory minimum term of imprisonment established in said sections, be eligible for probation, furlough, or receive any deduction from his sentence for good conduct under section 129C and 129D of chapter 127, nor shall he be eligible for parole; provided, however, that the commissioner of correction, on the recommendation of the warden, superintendent or other person in charge of the correctional institution, or a sheriff, on the recommendation of the administrator of a county correctional institution, may grant to said offender a temporary release, subject to the rules and regulations of the institution and under the direction, control and supervision of the officers thereof, for the following purposes: (1) to attend the funeral of a relative, to visit a critically ill relative, to obtain emergency medical or psychiatric services unavailable at said institution; (2) to participate in education, training, or employment programs established under section 48 of chapter 127; (3) to engage in employment pursuant to a work release program under sections 49, 49A, 86F or 86G of chapter 127; or (4) to participate in a program to provide services under section 49B or 49C of chapter 127.  Section 87 of chapter 276 shall not apply to any person, 17 years of age or older, charged with a violation of said sections, or to any child between age 14 and 17, so charged by indictment under section 54 of chapter 119.

SECTION 6. Chapter 94C of the General Laws, as so appearing, is hereby further amended by striking out section 32J, as amended by chapter 192 of the acts of 2012, and inserting in place thereof the following section:-

Section 32J. Any person who violates the provisions of section thirty-two, thirty-two A, thirty-two B, thirty-two C, thirty-two D, thirty-two E, thirty-two F or thirty-two I while in or on, or within 300 feet of the real property comprising a public or private accredited preschool, accredited headstart facility, elementary, vocational, or secondary school if the violation occurs between 5:00 a.m. and midnight, whether or not in session, or within one hundred feet of a public park or playground shall be punished by a term of imprisonment in the state prison for not less than two and one-half nor more than fifteen years or by imprisonment in a jail or house of correction for not more than two and one-half years.

Lack of knowledge of school boundaries shall not be a defense to any person who violates the provisions of this section.

SECTION 7. Notwithstanding any general or special law to the contrary, a person serving a mandatory minimum sentence in state prison as of the effective date of this act, for violating any provision of sections 32, 32A, 32B, or 32J of chapter 94C:

(a) shall be eligible for parole after serving one-half of the minimum term of the sentence,

(b) shall be eligible to participate in education, training, employment, or work release programs established pursuant to Sections 49, 49B, 49C, 86F and 86G of Chapter 127; and

(c) shall be eligible to receive deductions from his sentence for good conduct under Sections 129C and 129D of Chapter 127, provided that such deductions shall accrue as of the effective date of this section.