Criminal-Justice Reform Inches Forward

Whether or not you’ve been following Beacon Hill developments on criminal-justice reform as closely as we have, if it seems like that debate has been going on for a couple of years now, that’s because it’s been about that long since the state’s top leadership kicked off the review process by formally inviting outside experts to undertake an assessment of our criminal-justice system.  This month, legislation that emerged from that effort—along with more than 150 other bills on criminal procedure, sentencing, prison programs, and related issues—passed the first hurdle in the legislative process, with two heavily-attended public hearings of the Legislature’s Judiciary Committee.

To recap: In July 2015, Governor Charlie Baker, SJC Chief Justice Ralph Gants, Senate President Stanley Rosenberg, and House Speaker Robert DeLeo jointly penned a letter asking for technical assistance from the Council of State Governments’ (CSG’s) Justice Center—which had already provided such help to more than a dozen other states—in using “a data-driven approach to continue to improve criminal justice outcomes”.  The request was greeted with wide acclaim from stakeholders in the system and outside advocates, who saw it as an opportunity to address long-standing inefficiencies and inequities, and to provide a framework for substantial reforms in a variety of areas that have been discussed at the State House for years—but acted on only fitfully and incrementally.  The seeds of future discontent were planted, however, by the letter’s focus on recidivism, re-entry, early release, and post-release supervision—the so-called “back end” of the system, with no mention of such “front-end” ideas as diversion, bail reform, and sentencing reductions.

Fast-forward to this past February, when the CSG group—consisting of a team of national experts alongside a star-studded panel of leaders from throughout the Massachusetts system—released its final report after 18 months of hard work.  As with the initial invitation, the report’s recommendations, which had achieved unanimous internal consensus, met with near-universal approval once made public, and a bill was filed to implement those that required legislative endorsement.  Still, some observers expressed frustration with the bill’s limited scope, pointing out missed opportunities and calling for lawmakers to expand on it when they take up the issue during the current two-year legislative session.

The first real chance to speak directly to legislators on these issues—well, the first two chances, I guess—came on June 5 and again June 19, when the Judiciary Committee, which oversees criminal-justice legislation (among many other areas), held hearings to take testimony on those bills in particular.

The BBA was there both days, along with hundreds of other interested parties, as witnesses spoke on a wide variety of proposals, including limits on how criminal-justice fees and fines are imposed on the indigent, efforts to make the bail system more evidence-based, and steps to reduce the debilitating effects of the web of collateral consequences facing ex-offenders upon re-entry to society.  (For its part, Commonwealth Magazine has been providing strong coverage of the on-going debate, including both hearings—while also weighing in itself from time to time through its MassINC research arm.)

At the June 19 hearing, Marty Murphy of Foley Hoag—BBA Secretary and an experienced criminal lawyer—testified on our behalf, focusing on mandatory minimums, which the BBA has opposed for decades in all cases except first-degree murder.  With the Committee imposing a three-minute limit on oral testimony, in order to allow everyone present an opportunity to be heard, Murphy used his time to make four key points to the panel:

  1. Mandatory minimum sentences fail every test by which we should measure the strength of our justice system: In place of proportionality—a system where the punishment fits the crime—they offer one-size-fits-all justice.  They frequently require incarceration for longer than the judge believes is either necessary or just, as demonstrated by the prevalence of “and a day” sentencing.  These overly-long sentences, in turn, delay the possibility of re-integration, restrict access to the very programs shown to help make that process a success, and often turn prisoners back to the street without support, supervision, or help to find employment or housing.
  2. Mandatory sentencing statutes effectively turn over the reins of the criminal justice system to prosecutors and strip judges of their power to impose the kind of individualized sentences that would in fact make the punishment fit the crime. Mandatory sentences are mandatory only when prosecutors want them to be; in practice, prosecutors often use them as bargaining chips in the plea bargaining process. When prosecutors use the threat of mandatory sentences to drive the plea-bargaining process, there is no transparency and no accountability. Instead, the result is justice produced behind closed doors, with the prosecutor choosing both charge and sentence.
  3. The evidence shows that mandatory minimum sentences help drive one of the most deeply disturbing aspects of our state’s criminal justice system: the problem of racial disparity. Massachusetts may have one of the lowest incarceration rates in the nation; but our criminal justice system’s record on race is nothing to be proud of.  Massachusetts rates of racial and ethnic disparity are among the highest in the United States.  For African-Americans the rate of disparity (that is, incarcerations rates of black compared to white residents) was the 13th highest in the country. For Latinos, Massachusetts ranked first.  Mandatory minimum sentences help drive that rate of disparity: Three out of every four defendants sentenced to mandatory minimum sentences are defendants of color.  As recent studies have confirmed, and as our own experiences teach, these sentences tear lasting holes in defendants’ families, and in entire communities.
  4. There is no time better than the present to address this issue. Massachusetts reduced mandatory minimums in both 2010 and 2012 without the kind of harm to public safety opponents of reform predicted. Since then, we have watched crime rates continue their historic decline. There is certainly much to praise in the CSG’s framework, and in the CSG bill.  The BBA thanks all of those who devoted so much of their time, over so many months, to producing a strong outcome.  But it is our hope that the best and longest-lasting legacy of the CSG process will be the foundation it lays on which to build additional criminal-justice reforms, continuing the work begun in 2010.

As Murphy’s prepared remarks go on to say:

Massachusetts taxpayers deserve to see their money spent wisely.  No one disputes that certain offenders deserve to be incarcerated—sometimes for a long time.  But the length of that sentence should be determined by a well-qualified judge, ruling on the unique facts and circumstances of the case, and the individual defendant’s history and background—not by the cold calculus of arbitrary justice, which is all that mandatory minimums can ever offer.

These hearings were the Legislature’s first official step toward criminal-justice reform in this 2017-18 session.  Much remains unclear at the moment: When will the Judiciary Committee report out legislation?  What form will it take?  Might they, as some have urged, report the CSG bill out first and leave the harder work of fashioning further reforms until later?  Which house will debate these issues first?  And ultimately, how far will the Legislature go in expanding on the narrow scope of the CSG recommendations?

As it happens, Murphy and former BBA President Kathy Weinman, of Collora LLP, are heading up a BBA working group that is currently exploring potential avenues for reform that were left untouched by the CSG report, but where the BBA can recommend improvements to current law and practice.  We expect the group to make those recommendations to the BBA Council soon—and that they will help shape the criminal-justice debate as it develops in the State House.

—Michael Avitzur
Government Relations Director
Boston Bar Association