An Act Relative to Criminal Justice Reform Part 3

This is the third post in a multi-post series where I will discuss some of the changes in the law that were a result of An Act Relative to Criminal Justice Reform. On April 13, 2018, Governor Charlie Baker signed An Act Relative to Criminal Justice Reform into law, signaling a major shift in the Massachusetts criminal justice system. One of the goals of this law was to update our criminal justice system. In doing so, several statutes were amended and others were created.

Some of the biggest changes made through the implementation this Act were to the various narcotics-related statutes.

To begin with, the crime of Knowingly Being Present Where Heroin Was Kept (G.L. c. 94C § 35), was repealed. This change has been met with applause by the defense bar, as often, this charge was used to punish family members of addicts.

In addition to the elimination of the crime of Knowingly Being Present Where Heroin Was Kept, certain minimum mandatory sentences have also been eliminated. In particular, the mandatory
minimum sentences to the house of correction and state prison have been eliminated for
convictions of unlawful manufacture, distribution, dispensing or possessing with intent to
manufacture, distribute dispense, or cultivate the following controlled substances,
including subsequent offenses:

(1) Class B Substances – G.L. c.94C, §§ 32A(b), (c), & (d);

(2) Class C substances – G.L. c.94C, § 32B(b);

(3) Class D substances – G.L. c.94C, § 32C(b); and

(4) Selling, possessing, purchasing with intent to sell, or manufacturing with intent to sell drug paraphernalia to a person over the age of eighteen years of age G.L. c. 94C, § 32I.

Another major change to the narcotics laws was the reclassification of Fentanyl, Carfentanil, and other derivatives of fentanyl as class A substances. As a result of this, these substances have been added to the trafficking statute, G.L. c. 94C, § 32E(c), that covers heroin, morphine, and opium.

Furthermore, subsection (c1⁄2), which provided an enhanced penalty for trafficking more than 10 grams of fentanyl has been amended to prohibit trafficking of 10 grams or more of any mixture that contains fentanyl or derivative of fentanyl. The penalty has also been enhanced to establish a minimum mandatory state prison sentence of no less than three and one-half years for a conviction under that section. Additionally, a new offense of trafficking in any amount of carfentanil, including a mixture containing carfentanil or any carfentanil derivative, has been created (G.L. c. 94C, § 32E(c3⁄4)) and makes a violation punishable by up to twenty years in state prison with a mandatory minimum sentence of no less than three and one-half years.

The final major change to the narcotics laws was a change to the School Zone Enhancement pursuant to G.L. c. 94C, § 32J. The school zone statute has been rewritten to require that, in addition to committing a drug offense within 300 feet of a school between 5 a.m. and midnight or within 100 feet of a public park, the
Commonwealth must also prove that the offender:

1. Used violence or threats of violence or possess a firearm, rifle, shotgun, machine gun or dangerous weapon or induced another to do so during the offense; or

2. Directed another person to commit a felony drug offense; or

3. The offense consisted of unlawfully manufacturing, distributing, dispensing or possessing with intent to manufacture, distribute, dispense, or cultivate a controlled substance to minors in violation of G.L c. 94C, § 32F, or induced a minor to distribute or sell a controlled substance in violation of G.L. c. 94C, § 32K.

While all the changes have been celebrated by the defense bar, this change to the School Zone Enhancement has been particularly well received. It has been the opinion of many that the previous version of this statute had been abused by many police departments. This was often the case when officers would know that a person was in possession of narcotics, but instead of effectuating the arrest immediately, they would follow the person into a school zone, which would result in the enhancement. The changes have resulted in ensuring that this tactic could no longer be used.