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