New BBA Report Recommends Comprehensive Criminal Justice Reform

In July 2015, when the leaders of all three branches of government in Massachusetts invited the technical assistance of the Council of State Governments’ Justice Center (CSG) in conducting a comprehensive review of the Commonwealth’s criminal-justice system, it wasn’t just the report from CSG they were eyeing.  They were also looking ahead to the criminal-justice debate that the Legislature will take up over the coming weeks.

And as the CSG team, with the guidance of a working group composed of a few dozen stakeholders from Massachusetts, prepared its final report at the start of 2017, then-BBA President Carol Starkey, of Conn Kavanaugh, was also anticipating this debate. In response,  she appointed a BBA working group to not only review and analyze the CSG work product, but also consider further reforms that the BBA could recommend. Led by former BBA President Kathy Weinman of Hogan Lovells LLP and BBA Treasurer Martin Murphy, the Working Group spent the first half of the year studying which areas of reform would be most necessary and effective in producing a fairer and more effective criminal-justice system for the Commonwealth.

We’ve previewed this moment several times in recent months, but have now finally reached the point when the criminal-justice reform package that we’ve been waiting more than two years for is about to take shape and actual votes are being cast at the State House.  In just the past several days, two new bills have advanced one step closer to a floor debate (more on that below), and we are proud to let you know that the BBA’s working group on criminal justice has also released its report and recommendations, entitled “No Time to Wait: Recommendations for a Fair and Effective Criminal Justice System.”

You can find the full report here.  And listen to Kathy Weinman discuss the report on WGBH’s All Things Considered here.

In brief, the report commends the CSG proposals, but calls for broader reforms to reduce recidivism and make Massachusetts’ criminal justice system fairer and more cost-efficient.  The recent research conducted by the CSG, and others, highlights this need for wider reforms , including to address the critical issue of racial disparities. In Massachusetts, racial disparities in incarceration are among the worst in the country: the disparity between Hispanic individuals and white individuals is the highest in the nation, and the disparity between black individuals and white individuals is thirteenth among the fifty states. As President Mark Smith states in the press release accompanying the report:

 We must ensure that the criminal justice system treats everyone equally and fairly. Even if we cannot identify the causes of these inequities with precision, we believe we know enough to take action to address its consequences, and the time has come to do that now.

The report calls for six additions to the previously proposed reforms:

  1. Increasing opportunities for pre-trial diversion for more defendants. (Currently Massachusetts has no statewide coordinated system for pre-trial diversion).
  2. Adopting significant reforms to the Massachusetts cash bail system so that defendants are not incarcerated before trial simply because they cannot afford bail.
  3. Repealing mandatory minimum sentences, particularly for drug crimes, which are primarily driven by drug weight and do not permit judges to evaluate a defendant’s role in the drug distribution.
  4. Ensuring that ordering payment of multiple fines and fees does not effectively criminalize poverty and impede successful reentry after incarceration.
  5. Expanding recidivism reduction programs to advance public safety.
  6. Reforming the state’s criminal record laws, also known as the Criminal Offender Record Information (“CORI”) laws that adversely impact the ability of ex-offenders to find jobs.

According to Martin Murphy, these reforms:

…point[] the way forward to a criminal justice system that is fairer and more effective – one that allows people to break free from the cycle of poverty and recidivism, leaving the Commonwealth stronger and safer.

The report also could not come at a better time, as the Legislature’s Judiciary Committee has just released both an omnibus bill (S. 2170) that tackles a wide array of reform ideas—from decriminalization of certain misdemeanors to restrictions on solitary confinement to creation of a parental testimonial privilege—and a much-narrower bill (H. 3935) that closely tracks the CSG recommendations.  Those recommendations, which focused on efforts to reduce recidivism, earned wide acclaim; but while there was near-universal agreement that more needed to be done, the CSG working group couldn’t reach consensus on what those further reforms should look like.

The legislative debate—first in each house, and then in a conference committee tasked with working out the differences—will settle the question, at least for this current two-year session, of what, if anything, will be done beyond the CSG bill.  That much is yet to be answered, as is the question of whether the Legislature will start by passing a CSG-only bill (like H. 3935), and then take up broader reforms, or whether they will try to take it all on in one go.

Regardless of which direction the debate goes, the BBA will be there to advocate for those reforms outlined in the Report. We look forward to keeping you updated on the state of criminal-justice reform in the Commonwealth!

—Michael Avitzur
Government Relations Director
Boston Bar Association