Monthly Archives: November 2017

MA Legislature Advances Criminal Justice Legislation

Now that both the State Senate and State House of Representatives have passed bills to make sweeping reforms to the criminal-justice system in Massachusetts, the stage is set for leaders in each house to appoint members of a six-person conference committee.  Those conferees will face the daunting task of finding compromise language on a wide variety of issues covered by the respective bills.  Some topics addressed in one bill were entirely left out of the other.

Based on the report of the BBA’s Criminal Justice Reform Working Group, we focused our advocacy on the six areas in which the Working Group made recommendations.  On the whole, we were pleased that each house’s bill would make significant progress in all of these six areas.  Here’s a snapshot of some of our key recommendations, and the action that’s been taken thus far by legislators:

  1. Increasing opportunities for pre-trial diversion for more defendants. (Currently Massachusetts has no statewide coordinated system for pre-trial diversion.)
  • We were pleased to see that both bills include provisions that would remove the age restriction on diversion programs in District Court.  The House bill would also require the creation of pre-arraignment programs for certain groups.
  • We recommend going further, to make all non-violent offenders with no prior felony convictions eligible for consideration for pre-trial diversion.
  1. Adopting substantial reforms to the Massachusetts cash bail system so that defendants are not incarcerated before trial simply because they cannot afford bail.
  • Specifically, we recommend that the recent decision by the Supreme Judicial Court in Brangan v. Commonwealth be codified, to ensure that defendants are not held solely because they are poor.
  • The two bills take different approaches toward achieving bail reform, but on this critical issue they agree with our Working Group: No defendant should ever be incarcerated before trial simply because they cannot afford bail.
  1. 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.
  • Again, each house would eliminate some mandatory minimums for drug offenses, in recognition of the fact that this has been a misguided effort to address substance addiction.
  • The current scourge of opioid addiction has brought renewed, and well-deserved, attention to the issue—and led some law-makers to resort to new application or enhancement of mandatory minimums in response.  But this blunt tool has already been shown to offer no solution to such a complex public-health problem.
  • Consequently, the BBA continues to recommend the elimination of all mandatory minimums for drug offenses, so that judges can craft individualized sentences, in the interest of justice, after hearing from both sides at the conclusion of each case.  We are hopeful that a provision in the Senate bill, to establish a commission that would study the effectiveness of mandatory minimum sentences, can offer a road map toward that goal in the near future.
  1. Ensuring that ordering payment of multiple fines and fees does not effectively criminalize poverty and impede successful reentry after incarceration.
  • Both houses seek to establish a uniform standard for what constitutes “substantial financial hardship,” such that a judge may waive or reduce a fine.
  • We believe that the conference committee should further adopt our recommendation of completely eliminating counter-productive parole and probation fees after release.
  1. Expanding recidivism reduction programs to advance public safety.
  • Separate legislation to implement consensus recommendations from the report early this year by the Council of State Governments (H. 4012, which the House also passed) would increase incentives for certain incarcerated individuals to take advantage of these programs.
  • The BBA recommends extending these incentives for participating in and completing programs to all inmates who may be released from state prison.
  • This will further reduce recidivism and save money by freeing up beds. Such programming is not a reward but rather a means to protect public safety.
  1. 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.
  • Both houses share our support for a major reduction in the waiting periods before records become unavailable to the general public.  Although their two bills agree on a reduction from 10 to 7 years for felonies and from 5 to 3 years for misdemeanors, we actually called for the former to be reduced to 5 years, and our report demonstrates that there is academic research behind this recommendation.
  • We are also call for automatic sealing when charges are dismissed prior to arraignment, or after a defendant successfully completes a diversion program—unless the judge finds, upon objection from the District Attorney, that doing so would not serve substantial justice.

Once the members of the conference committee are named, we will reach out to them to make clear our positions on all provisions within these six areas that are still in conflict.  And we will of course keep you informed as that process plays out, potentially over all the remaining eight months of formal legislative sessions this term.

—Michael Avitzur
Government Relations Director
Boston Bar Association

Criminal Justice Reform Bill Passes the Senate

When the Senate last week debated a comprehensive criminal-justice bill that had been months in the making, it marked the first time, after years of public discussion, that either house had formally gone on record with votes on what the reform package should include.  The Senate’s marathon session, which started last Thursday morning and ended well after 1am that night, was almost exclusively devoted to the bill, and the 161 amendments that members had initially filed for consideration.

The final bill, as approved by a vote of 27 to 10, incorporated many of the recommendations of the BBA’s working group on criminal-justice reform.  We must now await the action of the House.  With formal legislative sessions for 2017 required to end by November 15, that chamber will hold their debate within the next two weeks.  First, though, the Judiciary Committee, led on the House side by Chairwoman Claire Cronin, is expected to release its long-awaited legislation early next week, after which Representatives will be permitted to file their own proposed amendments for floor debate.

Our working group urged lawmakers to make changes in six critical areas:

  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.

Since the release last month of our working group’s report, we have advocated for its recommendations, with the Senate, the House, and other stakeholders.  (The final Senate bill takes positive steps in each of the above areas, though it doesn’t include all our recommendations.  For example, while we call on the Legislature to repeal mandatory minimum sentences for all drug offenses—in keeping with our long-standing opposition to virtually all such counter-productive sentences—the bill repeals only some of those.)  We will continue to do so through the House vote … and beyond, as a six-member conference committee will be named to hash out differences between the two bills.

That process could take months.  While it cannot extend beyond the July 31, 2018, end of the formal legislative session, we anticipate that House bill will forge a very different path from its Senate counterpart—both in terms of how it deals with those issues addressed by both houses, and in terms of how many issues it chooses to include in its legislation to begin with:  Whereas the Senate bill covered a wide variety of topics in criminal justice—including, for example, creation of a mandatory parent-child testimonial privilege and a measure to extend the Juvenile Court’s jurisdiction to 18-year-olds—House leadership has expressed a preference for a more limited bill.

For a refresher, the current debate was kick-started in February with the release of a report from the Council of State Governments’ Justice Center (CSG).  The Governor immediately filed a bill to enact those CSG recommendations for which legislative action was required.  And the House has since filed a new version of that bill.  They have argued that, since such language enjoys universal support, the CSG-only bill should be adopted and sent to the Governor quickly, leaving the conference committee to hash out what else may be enacted this session on criminal justice.  It remains unclear, though, whether the Senate will agree to this approach, or insist that the entire package be considered by the conferees.

As we continue to monitor developments in the House, please look for a BBA e-mail alert next week, asking you to call your Representative ahead of their vote, urging them to support action on the BBA’s recommendations.  Thanks in advance for your help!

—Michael Avitzur
Government Relations Director
Boston Bar Association