Let the Criminal-Justice Reform Debate Begin

After months of anticipation, the Council of State Governments’ Justice Center (CSG) finally released its report and recommendations on the Massachusetts criminal-justice system.  Eighteen months ago, the leaders of all three branches of government — Governor Charlie Baker, Chief Justice Ralph Gants of the Supreme Judicial Court, Senate President Stanley Rosenberg, and Speaker of the House Robert DeLeo — formally invited CSG to undertake such a review, and a Tuesday-morning press conference attended by all four leaders heralded the end product.

Governor Baker immediately filed legislation to implement some of CSG’s recommendations, while emphasizing that the full report represents a consensus among all the leaders, who collectively made up the steering committee that worked closely with CSG staff throughout the process — as did a broader working group of 25 additional stakeholders.  The legislation will be taken up by the Legislature, as will additional bills to address issues that were not included in the report.  Collectively, this criminal-justice reform debate will be one of the top priorities on Beacon Hill between now and the July 2018 end of this legislative session.

Look back at the July 2015 letter that started the review process — with Massachusetts now one of 26 states to have brought CSG in for their technical assistance and data-driven approach to help improve efficiencies and outcomes in criminal justice.  You’ll see that it was carefully crafted to achieve initial consensus among the signers, with language targeted at very specific aspects of the system and discrete goals for the project.  Here’s the key sentence:

“Without limiting the scope of your data analysis, we hope, looking at the data as a whole, to better understand how we can further reduce recidivism and enable successful re-entry, and whether we can further reduce our prison and jail populations through early release programs while ensuring appropriate punishment and preserving public safety.”

Reform advocates were concerned from the outset that the scope of the review would thus be too limited — in particular, that it would be focused on the so-called back-end of the system, recidivism and re-entry, to the exclusion of “front-end” issues such as diversion, bail, and sentencing.  As it turned out, there is indeed more or less a straight line from the request letter to the final report, which doesn’t extend the scope beyond what was initially proposed.  State leaders argue that this was the only way to achieve consensus, and that there will be time this session for both houses to consider the many legislative proposals for further action.

These proposals cover not only the three areas cited above but also issues like:

  • further reform of the state’s laws on criminal offender record information (CORI)
  • relieving the burden of fees and fines on defendants and ex-offenders
  • lifting or alleviating more of the hundreds of collateral consequences that are tied to criminal records and, like the above two, create roadblocks to successful reintegration after release from incarceration — or any involvement with the justice system, even short of incarceration — by making it difficult to secure employment, housing, government benefits, and so on
  • allowing greater opportunity to seek expungement of criminal records
  • providing a way for elderly or disabled inmates to obtain extraordinary release, as in the federal system
  • increasing the threshold for felony-level larceny, which has remained unchanged for decades, in spite of erosion by inflation
  • making parole a presumption to be denied only when justified

Despite growing political pressure, as it became clear that the report would likely hew to its original narrow scope, the report unveiled this week was silent on all of the above.  On perhaps the biggest such flash-point, efforts to roll back some of the state’s mandatory-minimum sentences, however, state leaders were quick to point to a recommendation that had not been publicly-broached before — one that would offer all inmates, including those serving mandatory sentences for certain drug offenses (not involving opioids, minors, firearms, or violence), a greater opportunity to accrue “earned time” for participation in programs designed to improve their chances of successful re-integration.  This would, in turn, reduce recidivism.

It gets somewhat complicated here, but basically, earned time will be available, within limits, to move up a DOC inmate’s parole-eligibility date.  Those who are not paroled and instead “wrap up” their sentences will also be released earlier based on earned time, but they will be under supervision for the remaining period of their sentences.  This addresses one key CSG finding — which was not exactly a secret beforehand: Too many inmates are serving out their sentences and being released directly to the street with no supervision — a recipe for unnecessarily high recidivism rates.  But it also addresses the concern that any mandatory post-release supervision program not have the effect of extending an inmate’s time within the system.

Many questions remain about this approach: Will it have the effect of reducing time served under mandatory sentences without actually changing the statutes that impose them?  Will prison programming be made available to meet the anticipated increased need that this change seeks to create?  Will judges modify their sentencing practices by reducing the use of “and a day” sentences — those in which the minimum is set at the mandated level but the maximum is only one day later?  (These are viewed by some as a judicial expression that the mandatory minimum in a given case is too high, but they also result in releases without supervision, because parole is not a real possibility.)

These contours of the debate to come at the Legislature were explored by an all-star panel at a BBA event held the day after the CSG report — with both praise for the final recommendations and some calls for further action on display from panelists, all of whom worked with CSG.  For his part, Michael O’Keefe, District Attorney for the Cape & Islands, argued that with incarceration rates near the bottom in the US, and continuing to decline, the CSG focus on recidivism — what he called the “weak point” in our justice system — was properly placed.  Massachusetts recidivism rates are in the middle of the pack, but we can do better, he argued, if we invest in programming and supervision.

State Senator Will Brownsberger, Senate Chair of the Legislature’s Judiciary Committee, told attendees that the system isn’t broken, yet it does create a footprint that’s too big.  He sees prisons and jails that are too full by historical standards, and in comparison to other developed democracies, and he wants to try to reduce collateral consequences as well.

To Randy Gioia, Deputy Chief Counsel of the Public Defender Division at the Committee for Public Counsel Services (CPCS), the CSG report creates a “once in a lifetime opportunity” to do something big on criminal-justice reform but won’t generate enough savings by reducing incarceration.  Those savings are needed, he says, to invest in the same high-risk communities that have been devastated by the upswing in imprisonment over the past several decades.  Only then will the cycle of recidivism be broken.

Former State Representative John Fernandes, recently retired as House Chair of the Legislature’s Judiciary Committee, pointed out that the report had to be as limited as it is, so that all participants could emerge pledging to see its recommendations through to execution.  The review, he said, “was never intended to change everything in one package.”  Nevertheless, it represents a first step that can be built upon later.

Lon Povich, Chief Legal Counsel to Governor Baker, noted that the Governor’s recent budget already provides $3.5 million to fund the first-year costs of implementing the report’s recommendations.  He’d like to see the CSG legislation passed soon, with further reform efforts taken up thereafter, and he particularly pointed to collateral consequences as an important area to work on in order to drive down recidivism rates.

Superior Court Judge Jack Lu took part in his role as chair of the Sentencing Commission, which is working on a rewrite of the state’s sentencing guidelines.  Those guidelines remain advisory, because they have never been enacted.  Judge Lu promised the Commission would offer “state of the art” data-driven guidelines but predicted that they would “move the needle” rather than call for sweeping sentencing changes.

Judge Paula Carey, Chief Justice of the Trial Court, praised the CSG’s work as an unprecedented cooperative effort by all three branches, resulting in a three-pronged approach going forward: legislative (in the form of the bill filed by the Governor), but also administrative and budgetary.

So implementation is now in the hands of the leaders who kick-started this effort a year-and-a-half ago.  How it plays out over the year-and-a-half (actually a little less) remaining in the 2017-18 session — and beyond — remains to be seen.  But with an internal working group already reviewing the CSG report and contemplating recommendations for reforms that would go further toward improving our system of justice, you can be sure the BBA will be a part of that debate.

—Michael Avitzur
Government Relations Director
Boston Bar Association