Prosecutor Deciding Disparate Sentencing for Drug Convictions
by Mark Wilson
The Massachusetts Supreme Court held that the prosecutor, not the judge, determines the applicable sentence under drug laws that authorize two different sentences for the same conduct.
Massachusetts General Law, chapter 94C, section 32A criminalizes the distribution of controlled substances. Subsections (a) and (c) criminalize first-time distribution of forty class B controlled substances. Subsections (b) and (d) criminalize subsequent distribution of those controlled substances. Subsections (b) and (d) punish possession with intent to distribute a class B substance, but subsection (b) requires a 24 month mandatory minimum sentence while subsection (d) requires a 42 month mandatory minimum sentence.
Moses Ehiabhi was convicted under sections 32A(c) and (d) of a second charge of possession with intent to distribute cocaine. The judge asked the prosecutor why she charged Ehiabhi under section (d), which carries a 42-month mandatory minimum sentence while section (b) carried only a 24 month mandatory minimum sentence, and the elements of both offenses are identical.
The prosecutor explained that she "typically" brings cocaine charges under the enhanced section because cocaine is "considered a more dangerous substance than other" drugs like pills. She also defended her charging decision by arguing that Ehiabhi was on federal supervised release for the same crime when he committed the new offense.
The trial court rejected both arguments, finding ambiguity in the conflicting mandatory minimum sentences for repeat cocaine distributors, of 24 months under section 32A(b) and 42 months under section 32A(d). Due to that conflict, the court concluded that the rule of lenity required it to sentence Ehiabhi to the less severe sentence under section 32A(b).
The Massachusetts Supreme Court reversed, concluding that "the statutory scheme, when read as a whole and in the context of its history, is not ambiguous, and therefore the rule of lenity is not applicable."
The court then found that the prosecutor had broad discretion to decide which section to charge Ehiabhi under. Therefore, that decision did not violate the separation of powers provision of the Massachusetts Declaration of Rights.
"Indeed, a prosecutor has the discretion to charge a defendant under multiple enhancement statutes, retaining that discretion up to the sentencing stage," the Court observed. "Accordingly, a prosecutor does not infringe on the court's sentencing power merely by selecting charges from among multiple applicable subsections."
As such, "section 32A ... does not represent an executive usurpation of judicial sentencing powers, but an appropriate exercise of prosecutorial discretion," the Court concluded. "The judge's decision not to sentence the defendant pursuant to the statutes under which he was properly charged and convicted -- § 32A(c) and (d) — was error."
See: Commonwealth v. Ehiabhi (Mass. 2017)
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Commonwealth v. Ehiabhi