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SJC-11970

                 COMMONWEALTH   vs.   IMRAN LALTAPRASAD.



            Suffolk.    April 5, 2016. - October 14, 2016.

  Present:     Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk,
                             & Hines, JJ.1



Massachusetts Sentencing Commission. Practice, Criminal,
     Sentence, Judicial discretion. Supreme Judicial Court,
     Superintendence of inferior courts. Controlled Substances.



     Civil action commenced in the Supreme Judicial Court for
the county of Suffolk on August 20, 2015.

     The case was reported by Cordy, J.


     Thomas C. Maxim, Assistant District Attorney, for the
Commonwealth.
     Matthew R. Segal (Keith J. Nicholson, Adriana Lafaille, &
Nancy Gertner with him) for the defendant.
     Benjamin H. Keehn & Paul R. Rudof, Committee for Public
Counsel Services, & Barbara J. Dougan, Michael B. Keating,
Daniel N. Marx, & Daniel McFadden, for Committee for Public
Counsel Services & others, amici curiae, submitted a brief.
     Emma Quinn-Judge, Monica R. Shah, & Daniel K. Gelb, for The
Constitution Project & others, amici curiae, submitted a brief.




     1
       Justices Spina, Cordy, and Duffly participated in the
deliberation on this case prior to their retirements.
                                                                    2

     BOTSFORD, J.   In this case we consider whether G. L.

c. 211E, § 3 (e), authorizes a sentencing judge to depart from

the mandatory minimum terms specified by statute for subsequent

drug offenses.   We conclude that because the Legislature has not

yet enacted into law sentencing guidelines recommended by the

Massachusetts Sentencing Commission (commission), a sentencing

judge currently may not impose a sentence that departs from the

prescribed mandatory minimum term.   We do not reach in this case

the constitutional claims that the defendant has raised for the

first time in this court.2


     2
       We acknowledge the amicus brief submitted by the Committee
for Public Counsel Services; Families Against Mandatory
Minimums; American Friends Service Committee, Arise for Social
Justice; Black and Pink; Blackstonian; Brookline PAX; Center for
Church and Prison, Inc.; Charles Hamilton Houston Institute for
Race and Justice; Coalition for Effective Public Safety;
Coalition for Social Justice; Community Resources for Justice;
Criminal Justice Policy Coalition; Ex-Prisoners and Prisoners
Organizing for Community Advancement; Families for Justice as
Healing; Greater Boston Interfaith Organization; Greater Boston
Legal Services; Jewish Alliance for Law and Social Action; Jobs
Not Jails; Lawyers' Committee for Civil Rights and Economic
Justice; Massachusetts Association of Criminal Defense Lawyers;
Massachusetts Black Lawyers Association; Massachusetts
Conference of the United Church of Christ; Massachusetts
Institute for a New Commonwealth; Massachusetts Law Reform
Institute; Massachusetts Organization for Addition Recovery;
NAACP, New England Area Conference; National Association of
Social Workers, Massachusetts Chapter; National Lawyers Guild;
Massachusetts Chapter; New Start Project; Out Now; Partakers;
Prison Policy Initiative; Prisoners' Legal Services of
Massachusetts; Real Cost of Prisons Project; Social Workers for
Peace and Justice; South Asian Bar Association of Greater
Boston; Span; Trinity Chapel; Union of Minority Neighborhoods;
and Universalist Unitarian Mass Action. We also acknowledge the
amicus brief submitted by the Constitution Project, Drug Policy
Alliance, and National Association of Criminal Defense Lawyers.
                                                                      3

     Background.     In August, 2013, a Middlesex County grand jury

indicted the defendant, Imran Laltaprasad, on a charge of

possession with intent to distribute heroin, subsequent offense,

G. L. c. 94C, § 32 (a), (b); and two charges of possession with

intent to distribute cocaine, subsequent offense, G. L. c. 94C,

§ 32A (c), (d).    In July, 2015, a jury found the defendant

guilty of possession with intent to distribute heroin, and one

count of possession with intent to distribute cocaine; the

defendant was found not guilty on the other count of that crime.3

The defendant pleaded guilty to the subsequent offense portion

of each of these charges.    See G. L. c. 94C, §§ 32 (b) (heroin),

32A (d) (cocaine).    Both counsel presented their sentencing

recommendations,4 and after hearing, the trial judge stated that


     3
       The facts underlying the charges, in summary, are the
following. The defendant was arrested in 2013 by Somerville
police officers who were conducting surveillance of the home of
a resident in the city. The defendant picked up the resident
from her house, drove in a short loop, then let her out of the
automobile in front of her house. The police stopped the
resident and found six small bags of cocaine on her person.
Police then stopped and subsequently searched the defendant,
finding $350 in cash and, inside the defendant's prosthetic leg,
ten small bags of cocaine weighing an unknown amount (the police
had mixed the cocaine found on the defendant with the cocaine
recovered from the resident), and two small bags of heroin
weighing a total of 0.81 grams.
     4
       The Commonwealth recommended concurrent sentences of from
three and one-half to five years on the two convictions; the
defendant recommended that the judge depart downward from the
statutory mandatory minimum, and if the judge were to determine
that she had no discretion to depart, that she sentence the
defendant to concurrent sentences of from three and one-half
years to three and one-half years and one day.
                                                                       4

she would depart downward from the mandatory minimum sentence

provisions of the two subsequent offense statutes, each of which

requires a minimum term of three and one-half years in State

prison, and would impose instead a sentence of two and one-half

years in a house of correction.    In a written memorandum of

decision, the trial judge explained her reasons:

    "(1) The defendant does not have a prior conviction for
    drug trafficking at seriousness levels 7 or 8; and

    "(2) The facts and circumstances surrounding this matter
    warrant a lesser sentence. Specifically, the defendant was
    arrested with less than 1 gram of the controlled
    substances. Further the defendant was severely injured
    when another individual shot a firearm at him. He suffered
    11 gunshot wounds and endured 21 surgeries prior to trial.
    The defendant also lost his leg and sustained serious
    abdominal damage due to those injuries. Evidence of his
    current medical condition was presented at trial. Given
    both the relatively small amount of contraband involved in
    the arrest and the extreme medical condition of the
    defendant, the Court will depart downward and impose a
    sentence of 2.5 years in the House of Correction."

    On July 30, 2015, the Commonwealth filed a motion to

reconsider the sentences imposed, which the judge denied.        The

Commonwealth then filed in the county court a petition for

relief pursuant to G. L. c. 211, § 3.    In October, 2015, the

single justice reserved and reported the case to the full court

without decision.

    Discussion.     1.   Statutory authority.   The sentencing

provisions of three statutes are at issue in this case.      The

first two are the statutory drug crimes of which the defendant

was convicted:   possession of heroin with intent to distribute,
                                                                     5

second or subsequent offense, G. L. c. 94C, § 32 (b); and

possession of cocaine with intent to distribute, second or

subsequent offense, G. L. c. 94C, § 32A (d).     Upon a defendant's

conviction and regardless of the amount of heroin or cocaine

involved, the Legislature has prescribed in each of these

statutes a mandatory minimum period of incarceration, three and

one-half years, to be served in State prison.5

     The third statute, G. L. c. 211E, § 3 (e), is part of a

chapter of the General Laws entitled "Massachusetts Sentencing


     5
         General Laws c. 94C, § 32 (b), provides in relevant part:

     "Any person convicted of violating this section after one
     or more prior convictions of manufacturing, distributing,
     dispensing or possessing with the intent to manufacture,
     distribute, or dispense . . . [heroin] shall be punished by
     a term of imprisonment in the state prison for not less
     than [three and one-half] nor more than fifteen years. No
     sentence imposed under the provisions of this section shall
     be for less than a mandatory minimum term of imprisonment
     of [three and one-half] years and a fine of not less than
     two thousand and five hundred nor more than twenty-five
     thousand dollars may be imposed but not in lieu of the
     mandatory minimum [three and one-half] year term of
     imprisonment, as established herein."

General Laws c. 94C § 32A (d), provides in relevant part:

     "Any person convicted of violating the provisions of
     subsection (c) [of G. L. c. 94C § 32A,] after one or more
     prior convictions of manufacturing, distributing,
     dispensing or possessing with the intent to manufacture,
     distribute, or dispense [cocaine] . . . shall be punished
     by a term of imprisonment in the state prison for not less
     than [three and one-half] nor more than fifteen years and a
     fine of not less than two thousand five hundred nor more
     than twenty-five thousand dollars may be imposed but not in
     lieu of the mandatory minimum term of imprisonment, as
     established herein."
                                                                    6

Commission" that was added by the Legislature in 1996.    See St.

1996, c. 12, § 9 (1996 act).   Section 3 of c. 211E focuses

specifically on the responsibility of the commission to

recommend sentencing guidelines for use in the District Court,

the Boston Municipal Court, and the Superior Court.   See St.

1993, c. 432, § 1 (a).    Although the sentence ranges to be set

by the guidelines are to be presumptive in most circumstances,

§ 3 (e) provides:

    "Except for the crimes set forth in [G. L. c. 265, § 1,
    (murder)], the sentencing judge may depart from the range
    established by the sentencing guidelines and impose a
    sentence below any mandatory minimum term prescribed by
    statute if the judge sets forth in writing reasons for
    departing from that range on a sentencing statement . . .
    based on a finding that there exists one or more mitigating
    circumstances that should result in a sentence different
    from the one otherwise prescribed by the guidelines and
    below any applicable mandatory minimum term."

    The trial judge did not expressly reference G. L. c. 211E,

§ 3 (e), in sentencing the defendant or in her sentencing

memorandum, but the record indicates that in departing from the

mandatory minimum sentencing provisions, she relied on § 3 (e)

for authority to do so.   The Commonwealth argues that the judge

lacked authority to reach this result because the mandatory

minimum sentence departure authorization in § 3 (e) only becomes

operative when the commission's recommended sentencing

guidelines are "enacted into law" by legislative vote, as
                                                                    7

mandated by c. 211E, § 3 (a) (1),6 and the Legislature has not

done so to date.    The defendant argues, however, that the plain

language of § 3 (e) authorizes judges to depart from mandatory

minimum sentences independently of the enactment of any

sentencing guidelines and, even if § 3 (e)'s language and

meaning were not so clear, applicable principles of statutory

interpretation compel a construction that allows judges to

depart downward from mandatory minimum sentences.       For the

reasons that follow, we are constrained to agree with the

Commonwealth.

     a.    History of G. L. c. 211E, § 3.   Chapter 211E has its

origins in earlier legislation, specifically, St. 1993, c. 432

(1993 act).    The 1993 act created the commission as an

independent commission within the judicial branch for the

purpose of "recommend[ing] sentencing policies and practices for

the commonwealth," St. 1993, c. 432, § 2, including, in

particular, recommended sentencing guidelines to be used by

trial courts in every criminal case.    Id. at § 3 (a) (1), (2).

The guidelines were to establish a target sentence for each

offense within a range to be set by the commission with a


     6
         Section 3 (a) (1) of G. L. c. 211E provides:

     "The commission, by affirmative vote of at least six
     members of the commission and consistent with all pertinent
     provisions of this chapter and existing law, shall
     recommend sentencing guidelines, which shall take effect
     only if enacted into law" (emphasis added).
                                                                   8

maximum range not greater than the maximum penalty established

by statute for the offense, and a minimum no less than two-

thirds of the maximum, and not "below any mandatory minimum term

prescribed by statute."   See id. at § 3 (a) (3) (C), (e).

However, with the exception of murder, a judge in imposing a

sentence would be entitled to "impose a sentence below any

mandatory minimum term prescribed by statute," provided the

judge set forth the reasons in a sentencing memorandum.   Id. at

§ 3 (e).7   Section 5 of the 1993 act directed the commission to

submit to the Legislature "initial sentencing guidelines" within

twelve months of the act's effective date, and further stated

that "[t]he guidelines shall take effect only if enacted into

law."8   St. 1993, c. 432, § 5.


     7
       Section 3 (e) of St. 1993, c. 432 (1993 act), provides in
relevant part:

     "The maximum sentence within the range established by the
     sentencing guidelines for each offense shall not exceed the
     maximum penalty for the offense as set forth in the General
     Laws. The minimum sentence within said range shall not be
     below any mandatory minimum term prescribed by statute.
     However, except for the crimes set forth in [G. L. c. 265,
     § 1, (murder)] the sentencing judge may depart from said
     range, and impose a sentence below any mandatory minimum
     term prescribed by statute, if the judge sets forth in
     writing reasons for departing from that range, on a
     sentencing statement . . . based on a finding that there
     exists one or more mitigating circumstances that should
     result in a sentence different from the one otherwise
     prescribed by the guidelines and below any applicable
     mandatory minimum term."
     8
       In September, 1995, the commission sought an extension of
its deadline to April, 1996. See Commonwealth v. Russo, 421
                                                                    9

       In November, 1995, this court decided Commonwealth v.

Russo, 421 Mass. 317 (1995), a case that answered two questions

reported by a District Court judge concerning § 3 of the 1993

act:   (1) whether § 3 (e) allowed a sentencing judge to impose a

sentence that departed from a statutorily prescribed mandatory

minimum sentence if the judge were to find one or more

mitigating circumstances warranted the departure; and (2) if so,

whether the authority of a judge to so depart became operative

only on the promulgation of sentencing guidelines.   Id. at 319.

The court answered that § 3 (e) was clearly intended, "at some

time, to empower judges with discretion to impose a sentence

below a mandatory minimum sentence established by statute."     Id.

at 322.   However, based on the "plain and unambiguous language,"

id. at 323, of the statute, "§ 3 (e) of the [1993 act] is

addressed to judges acting at some future time -- a time after

the commission recommends guidelines, and after those guidelines

are accepted by the Legislature and enacted into law."    Id.




Mass. 317, 322 n.5 (1995). On April 10, 1996, the commission
submitted recommended sentencing guidelines. Massachusetts
Sentencing Commission, Report to the General Court (1996)
http://www.mass.gov/courts/docs/admin/sentcomm/
sentencing-comm-report-to-the-general-court-96.pdf
[https://perma.cc/R8XL-DFA4]. The suggested guidelines in the
report were incorporated into proposed sentencing guidelines
legislation, which is still pending before the Legislature.
Massachusetts Sentencing Guidelines, Sentencing Guide (Feb.
1998), http://www.mass.gov/courts/docs/admin/sentcomm/guide.pdf
[https://perma.cc/FX59-JKPX].
                                                                   10

     The Legislature passed St. 1996, c. 12 (1996 act), a few

months after Russo was decided.   The 1996 act repealed the

sections of the 1993 act that pertained to the commission, see

St. 1996, c. 12, § 16, and effectively replaced those provisions

with G. L. c. 211E, inserted into the General Laws by § 9 of the

1996 act.   Most, but not all, sections of c. 211E are identical,

in substance and frequently in language, to the repealed

sentencing commission provisions of the 1993 act.   Compare G. L.

c. 211E, §§ 1-3, as enacted by St. 1996, c. 12, § 9, with St.

1993, c. 432, §§ 1-5.9   Of particular relevance here is the

comparison between c. 211E, § 3 (a) (1), and St. 1993, c. 432,

§§ 3 (e) and 5.   Both c. 211E, § 3 (e), and § 3 (e) of the 1993

act, using the same language, authorize a sentencing judge to

depart from a statutorily prescribed mandatory minimum sentence

on any charge except murder, based on the judge's written

"finding that there exists one or more mitigating circumstances

that should result in a sentence different from the one

otherwise prescribed by the guidelines and below any applicable


     9
       Thus, G. L. c. 211E, § 1, establishes the Massachusetts
Sentencing Commission (commission) and outlines its powers and
duties -- compare St. 1993, c. 432, § 1; c. 211E, § 2, defines
the purposes the commission is intended to fulfill -- compare
St. 1993, c. 432, § 2; c. 211E, § 3, describes the sentencing
guidelines to be prepared and recommended by the commission, and
also how the guidelines are to function once in effect --
compare St. 1993, c. 432, § 3; and c. 211E, § 4, preserves a
defendant's and the Commonwealth’s right to appeal a sentence in
certain circumstances -- compare St. 1993, c. 432, § 4.
                                                                    11

mandatory minimum term."   And both provide that the commission's

recommended sentencing guidelines "shall take effect only if

enacted into law."   See G. L. c. 211E, § 3 (a) (1); St. 1993,

c. 432, § 5.10

     The salient difference between the provisions relating to

the commission in the 1993 act and in G. L. c. 211E is that the

1993 act expressly prohibited the commission from proposing

guidelines that contained recommended minimum sentence ranges

below any mandatory minimum sentence imposed by statute, see St.

1993, c. 432, § 3 (e), whereas c. 211E, § 3 (c), lifted this bar

and specifically authorized the commission to recommend

guidelines that departed from mandatory minimum or maximum

sentence terms set by the Legislature.     After the 1996 act was

passed by both legislative branches, the then Governor, William

F. Weld, vetoed or disapproved certain sections that related to

the sentencing guidelines.     He indicated that his veto was based

on his belief that the commission should not be empowered to

recommend sentencing guidelines that ignored the legislatively

set mandatory minimum terms.    See Letter from the Governor to




     10
       Further, G. L. c. 211E and the 1993 act both provide that
following the effective date of any sentencing guidelines
enacted by the Legislature, any amendments to the guidelines are
only to take effect "if enacted into law." See G. L. c. 211E,
§ 3 (g); St. 1993, c. 432, § 3 (g).
                                                                    12

the Legislature, 1996 House Doc. No. 5843, at 1-2.11    The

Legislature voted to override the Governor's veto, and therefore

St. 1996, c. 12, § 9, in its entirety became law as G. L.

c. 211E.

     b.    Authority to depart from mandatory minimum sentence

terms.    The Russo case addressed whether the 1993 act permitted

a judge to deviate from a mandatory minimum sentence term before

the Legislature enacted sentencing guidelines recommended by the

commission; we concluded that judicial deviation was not

authorized.    Russo, 421 Mass. at 319.   In effect, the present

case raises the same question in relation to the 1996 act, and

G. L. c. 211E, § 3 (e), in particular.    The Commonwealth argues

that given the nearly identical language in the 1993 act and

c. 211E, § 3 (e), Russo controls and requires the same answer.

The defendant disagrees, arguing that Russo considered a

different statute, one that was uncodified, and considered it at

a time before the commission had recommended any sentencing

guidelines.




     11
       In his letter explaining his partial vetoes, the then
Governor, William F. Weld, explained his disapproval of the
provision in the 1996 act empowering the commission to disregard
mandatory minimum sentences, but he did not indicate any
disagreement with the provision in G. L. c. 211E, § 3 (e),
authorizing judges to depart from mandatory minimum sentence
terms. In fact, the Governor had approved and signed the 1993
act, which included the same provision authorizing judicial
departures from mandatory minimum sentences.
                                                                   13

     It is true that Russo considered an uncodified act, and we

consider in this case a statute that is codified.   However,

"[t]he same standards of construction are applicable to both

codified and uncodified provisions of the General Laws."    Chin

v. Merriot, 470 Mass. 527, 532 (2015).12   There does not appear

to be any meaningful distinction between the 1993 act and G. L.

c. 211E based on the different codification status of the two

enactments.

     Apart from the codification issue, however, the defendant

is correct that Russo does not directly control our inquiry in

this case because the provisions of G. L. c. 211E that we

consider here are part of a different statute from the one

considered in Russo.   That being said, there is no dispute that

the substantive language of G. L. c. 211E, § 3 (a) (1) and (e),

is the same as §§ 3 (e) and 5 of the 1993 act and these were the

specific provisions that served as the basis for the court's

decision in Russo.   See Russo, 421 Mass. at 323.   Given that the

Legislature enacted the 1996 act, including c. 211E, § 3 (a) (1)

     12
       The defendant cites Chin v. Merriot, 470 Mass. 527, 532
(2015), and specifically the statement in Chin that "[a]s a
general matter, uncodified provisions of an act . . . are not
the source of the substantive provisions of the law." However,
it is clear from the context of the quoted language in Chin that
the court was specifically referring to those uncodified
provisions that serve to provide direction about an act's
operation, such as when some or all of the provisions in the
legislation will take effect; we did not intend to suggest in
Chin that uncodified provisions cannot or by definition do not
serve as a source of substantive law.
                                                                    14

and § 3 (e), soon after Russo was decided, it is appropriate to

infer that the Legislature intended the relevant provisions of

the 1996 act to have the same meaning as Russo had opined that

they had in the 1993 act.   See, e.g., Commonwealth v. Colturi,

448 Mass. 809, 812 (2007).13

     The Russo case, however, is not the sole source of guidance

on which we rely in interpreting the pertinent provisions of

G. L. c. 211E.   We also look to the language of c. 211E, §

3 (e), examined "in the context of the entire statute."     Chin,

470 Mass. at 532.   See Commonwealth v. Doe, 473 Mass. 76, 80

(2015).   When read in conjunction with c. 211E as a whole, it is

clear that the grant of authority to a judge under § 3 (e) to

sentence below a statutory mandatory minimum is tied to the

guidelines and does not operate as an independent grant of

judicial departure authority.   First, G. L. c. 211E, § 3 (e),

itself explicitly references the sentencing guidelines in

conferring authorization to depart from mandatory minimum

     13
       The defendant suggests that in contrast to Russo, here
the commission has promulgated and proposed guidelines to the
Legislature, so the guidelines should be deemed "in effect" for
purposes of our analysis. This argument fails. If one accepts,
as the defendant does and we as well, that the Legislature
intended that the commission's recommended guidelines would not
be operative until enacted into law, it is illogical to conclude
that the Legislature intended G. L. c. 211E, § 3 (e), which is
tied to the guidelines, to be effective as soon as the
commission filed its proposed guidelines with the Legislature,
regardless of whether the guidelines would ever get enacted and
become operative. We avoid construing a statute in a manner
that leads to an absurd result. See, e.g., Attorney Gen. v.
School Comm. of Essex, 387 Mass. 326, 336 (1982).
                                                                   15

sentence provisions:   "the sentencing judge may depart from the

range established by the sentencing guidelines and impose a

sentence below any mandatory minimum term prescribed by statute"

(emphasis added).   The section then states that such departure

is permitted if the judge provides reasons for "departing from

that range" based on "one or more mitigating circumstances."

Id.   Reading this language in conjunction with other provisions

in c. 211E, it is clear that the "mitigating circumstances" are

those that the sentencing commission is charged with

establishing pursuant to c. 211E, § 3 (a) (2) and (d), in order

"to guide the sentencing judge."    G. L. c. 211E, § 3 (a) (2).

Further, c. 211E, § 3 (e), references a judge's duty to "set[]

forth in writing reasons for departing from the range on a

sentencing statement as set forth in paragraph (h)" (emphasis

added).   The term "paragraph (h)" is a reference to c. 211E,

§ 3 (h), which charges the Chief Justice of the Trial Court, "in

consultation with the sentencing commission," with the duty to

promulgate "the form of a sentencing statement, conforming to

the sentencing guidelines, which shall be used by the sentencing

judge in the application of the guidelines when imposing a

sentence."   As these examples show, the close interconnection

between the judicial departure authorization in § 3 (e) and the

sentencing guidelines is obvious.
                                                                  16

     In sum, we are persuaded that G. L. c. 211E, § 3 (e), is

appropriately construed to mean that the authority to depart

from mandatory minimum sentences set by statute was not intended

to operate independently of sentencing guidelines recommended by

the commission, and the guidelines themselves must be enacted by

the Legislature before they take effect.   As we concluded about

the 1993 act, see Russo, 421 Mass. at 323, this result is

consistent with the plain meaning of the language of c. 211E,

§ 3 (e), and reinforced when the section is considered within

the context of c. 211E as a whole.14,15

     We add a final point.   Although G. L. c. 211E, § 3 (e),

does not permit a judge to impose a sentence below any

prescribed mandatory minimum term in the absence of

legislatively endorsed sentencing guidelines, it is clear that

at the time § 3 (e) was enacted in 1996, both the Legislature

and the Governor supported a policy of authorizing a sentencing

     14
       We have examined the legislative history of the 1996 act,
and found nothing in it that supports the defendant's
interpretation that the 1996 act was intended to provide judges
the authority to depart from mandatory minimum sentences
independently of the Legislature's enactment of sentencing
guidelines.
     15
       Because we conclude that the meaning of G. L. c. 211E,
§ 3 (e), is clear, we do not reach the defendant's alternative
argument that the statute is ambiguous and therefore should be
interpreted to avoid a reading that raises substantial
constitutional concerns -- a result that he claims arises if
§ 3 (e) is not read to include a judicial "safety valve," i.e.,
authorization for a judge to impose a sentence that departs from
a mandatory minimum term set by statute.
                                                                  17

judge, in certain circumstances, to depart from statutes

imposing mandatory minimum sentences, so long as the judge

provides a written statement of reasons for the departure.     See

note 11, supra, & accompanying text.    Amici point out that in

the twenty years since c. 211E, § 3 (e), was enacted, the

Federal government16 and at least twenty-three States17 have

enacted "safety valve" statutes authorizing judges to depart

from mandatory minimum sentences in certain circumstances at

least for drug offenses, and in some instances, more generally.

The efficacy, or lack of efficacy, of mandatory minimum

sentences, particularly in drug crimes, is the subject of

substantial public debate.    But apart from the question of

efficacy in terms of the purposes to be served by criminal

sentences, data concerning convictions for drug offenses in


     16
          See 18 U.S.C. § 3553(f) (2006 & Supp. IV).
     17
       Amici cite the following State statutes: Ala. Code § 15-
18-8(a) (2016); Conn. Gen. Stat. § 21a-283a (2016); Del. Code
Ann. tit. 11, § 4221 (2016); Fla. Stat. § 775.084(3)(a)(6),
3(c)(5), 4(e) (2012); Ga. Code Ann. §§ 16-13-31(2), 16-13-31.1
(2015); Haw. Rev. Stat. § 706-622.5 (2015); Ind. Code § 35-50-2-
2.1(b) (2016); Me. Rev. Stat. Ann. tit. 17-A, § 1252(5-A)(B)
(2015); Md. Code Ann. Crim. Law § 5-609.1 (2016); Mich. Comp.
Laws §§ 333.7410(5), 333.7413(4) (2016); Minn. Stat. § 152.025
(2010); Miss. Code Ann. § 41-29-139(h) (2014); Mo. Rev. Stat.
§ 558.046 (2016); Mont. Code Ann. § 45-9-202 (2015); N.J. Stat.
Ann. § 2C:35-7 (2010); N.M. Stat. Ann. § 31-18-17(A) (2016);
N.Y. Penal Law § 70.70(2)(c) (2011); N.D. Cent. Code § 12.1-32-
02.3 (2015); Okla. Stat. tit. 22, § 985.1 (2016); S.C. Code Ann.
§§ 44-53-370, 44-53-375 (2015); S.D. Codified Laws § 22-42-2.3,
22-42-19 (2016); Va. Code Ann. § 18.2-248 (2014). See also
State v. Dycus, 456 S.W.3d 918, 925 (Tenn. 2015).
                                                                   18

Massachusetts raise a serious concern about the disparate impact

of mandatory minimum sentences on defendants who are part of

racial or ethnic minority groups.18

     We recognize that "[i]t is the province of the Legislature

to define crimes and set penalties in the first instance."

Commonwealth v. Brown, 466 Mass. 676, 684-685 (2013), S.C., 474

Mass. 576 (2016), and cases cited.    However, twenty years have

passed since G. L. c. 211E, § 3 (e), was enacted.   It may be

appropriate for the Legislature to consider anew, guided by the

work of the commission, the issue of authorizing sentencing

judges to depart from mandatory minimum sentences in relation to

certain types of drug offenses in appropriate circumstances.

     2.   Constitutionality of statutory mandatory minimum

sentences for subsequent drug offenses.    The defendant argues

that even if G. L. c. 211E, § 3 (e), did not permit the judge to

impose a sentence below the otherwise applicable mandatory

minimum sentences associated with his convictions, the sentence

     18
       The Survey of Sentencing Practices, FY 2013, published by
the commission in 2014 (the most recent fiscal year reflected in
published data) indicates the following: 55.3 per cent of
defendants convicted of all drug offenses in Massachusetts were
white, and 43.7 per cent were racial or ethnic minorities; of
drug distribution offenses with nonminimum mandatory sentences,
44.1 per cent of defendants convicted were white, and 55.0 per
cent were racial or ethnic minorities; of distribution offenses
with mandatory minimum sentences, 25.3 per cent of the
defendants convicted were white, and 74.7 per cent were racial
or ethnic minorities. Massachusetts Sentencing Commission,
Survey of Sentencing Practices, FY 2013 (Dec. 2014), http://
www.mass.gov/courts/docs/admin/sentcomm/fy2013-survey-
sentencing-practices.pdf [https://perma.cc/SH4C-U3GK].
                                                                  19

she imposed should be affirmed because the subsequent offense

provisions at issue here, G. L. c. 94C, § 32 (b), and § 32A (d),

are unconstitutional -- "in every case" and as applied to him.

Specifically, he claims that mandatory minimum sentences for

subsequent drug offenses are unconstitutional because they (1)

inflict disproportionate punishment against people of color,

evidencing a discriminatory purpose in violation of equal

protection guaranteed by art. 1 of the Massachusetts Declaration

of Rights; (2) severely punish drug addicted defendants who sell

small amounts of drugs, constituting cruel or unusual punishment

in violation of art. 26 of the Declaration of Rights; and (3)

strip the judiciary of its inherent powers to sentence in

violation of art. 30 of the Declaration of Rights.   Specifically

as applied to him, the defendant argues that the mandatory

minimum sentence of three and one-half years violates his right

to equal protection as a person of color, and his right to

protection from cruel or unusual punishment in light of his

compromised physical state and the small amount of drugs found

on him.19

      The defendant did not raise any constitutional challenge to

the subsequent offense provisions in the Superior Court, either


     19
       In support of his equal protection challenge, the
defendant presents the statistical evidence included in the
report of the commission concerning sentencing practices in
fiscal year 2013. See note 18, supra.
                                                                  20

at the time of sentencing or before.     Although we may reach

constitutional issues raised for the first time on appeal, this

is not an appropriate case to do so, because the record is

inadequate to consider the defendant's claims.20    See Gagnon,

petitioner, 416 Mass. 775, 780 (1994).    See also Commonwealth v.

Guzman, 469 Mass. 492, 500-501 (2014).

     Conclusion.   The defendant's sentences must be vacated

because they are not in accord with the statutes defining the


     20
       Although the statistical data on which the defendant
relies for his equal protection claim are certainly troubling,
the data alone likely would not suffice to support the claim.
See United States v. Irizarry, 322 Fed. Appx. 153, 155 (3d Cir.
2009); United States v. Lewis, 40 F.3d 1325, 1344-1345 (1st Cir.
1994); United States v. Frazier, 981 F.2d 92, 95 (3d Cir. 1992),
cert. denied, 507, U.S. 1010 (1993). In support of the claim
that mandatory minimum sentences without a safety valve may
inflict cruel or unusual punishment on subsequent drug
offenders, the defendant points to the growing public consensus
that substance use disorder is a disease whose sufferers require
treatment, not imprisonment. In light of this public
recognition about substance use disorder, the defendant avers
that without a safety valve, there is great risk of imposing
sentences that are disproportionate to the crime committed by
drug offenders, citing Cepulonis v. Commonwealth, 384 Mass. 495,
497 (1981). Again, this claim lacks evidentiary support in the
particular record before us. Similarly, the defendant's third
constitutional challenge -- that statutory mandatory minimum
sentences violate separation of powers principles -- also fails
based on the present record.

     Finally, the record does not establish that the imposition
of a three and one-half year sentence in State prison violates
the defendant's equal protection rights or results in a severe
and disproportionate punishment. See Commonwealth v. King, 374
Mass. 5, 18 (1977) ("any inference of [discrimination] as
applied . . . can rest only on conjecture"). The defendant's
criminal record, before the sentencing judge in connection with
the Commonwealth's motion to reconsider the sentence, clearly
qualifies the defendant as a subsequent offender.
                                                                 21

offenses of which the defendant was convicted.   The

Commonwealth's petition for relief under G. L. c. 211, § 3, is

allowed, and the case is remanded to the Superior Court for

resentencing and further proceedings consistent with this

opinion.

                                   So ordered.
