News + Insights from the Legal Team at Zalkind Duncan & Bernstein

Criminal Justice Reform: How Are We Doing in Massachusetts? (Part 1 of 2)

At the federal level, efforts at criminal justice reform have been trapped in a legislative logjam.  Despite considerable bipartisan consensus on the subject – including the backing of the notorious Koch brothers, who fund Republican candidates across the country – no significant legislation has passed through the United States Congress.  That, despite the fact that the United States currently houses 2.2 million people in our prisons and jails.  That translates to an incarceration rate of 693 per 100,000 people – a rate far in excess of Iran, Zimbabwe, and Singapore.  A recent report by the Brennan Center for Justice concluded that 576,000 people who are currently incarcerated could be freed with little-to-no impact on public safety, at a savings of $20 billion annually.  According to the report, 364,000 prisoners could be subject to alternatives to incarceration – treatment, community service, or probation – while another 212,000 have already served lengthy prison terms and could be directly released into the community.

At the federal level, the only steps to remedy the effects of our draconian system have come from the executive branch.  Attorneys General Holder and Lynch have told their line prosecutors to pursue fewer mandatory minimum sentences, and Holder urged the U.S. Sentencing Commission to apply a recent reduction in drug sentences retroactively to reduce the sentences of thousands of those currently incarcerated.  In addition, President Obama has commuted the sentences of 1,176 prisoners and issued 148 pardons – far more than any other president in history.  But even those historic numbers are a mere drop in the proverbial bucket.  With a federal prison population of 190,058 inmates, Obama’s clemency numbers constitute about 0.6% of that group.  Those numbers will likely increase a bit before January 20th, but executive clemency is a poor substitute for true legislative reform.

As these numbers show – 190,058 federal inmates of 2.2 million total incarcerated – the vast majority of prisoners are housed in local and state facilities.  In Massachusetts, about 23,000 people are housed in various facilities across the Commonwealth, a number that has more than tripled since the early 1980s.  Although violent crime fell by 26% between 1980 and 2014, the Department of Corrections population spiked by 236%.  Despite that marked increase, our incarceration rate remains far below the national level – about 377 inmates in prisons or jails per 100,000 residents in 2010.  And the prison population in Massachusetts has actually fallen since 2010, with the reduction likely attributable to changes in state drug policy.  In 2008, for example, Massachusetts decriminalized marijuana, eliminating the possibility of incarceration for possession of small amounts.  And in 2012, the Commonwealth reduced the size of “school safety zones” – wherein drug crimes are subject to heightened mandatory minimum penalties – from 1,000 feet to 300 feet.  That legislation also reduced the length of some drug mandatory minimum sentences, increased the quantity of drugs necessary to trigger certain trafficking offenses, and expanded eligibility for re-entry programs for drug offenders.  These reforms appear to be having an effect on Massachusetts’s incarceration rate for drug crimes.  A recent set of criminal sentencing “best practices” also seek to reduce over-incarceration, as Ruth O’Meara-Costello has previously covered for this blog.

Massachusetts has taken other smaller (but important) steps toward reform as well.  In 2013, Massachusetts raised the age for Juvenile Court jurisdiction to eighteen, so seventeen year-olds charged with criminal offenses will no longer go to adult court.  The same year, the Supreme Judicial Court issued a ruling – consistent with a recent U.S. Supreme Court decision – declaring that the imposition of mandatory life without parole on juvenile offenders was unconstitutional, and applied that ruling retroactively.  In 2014, the state banned shackling for incarcerated women who are pregnant, in labor, or in the post-partum period.  Last March, Governor Baker signed legislation that eliminated automatic driver’s license suspensions for most drug offenses – a measure that had been on the books since 1989.  The Massachusetts Senate recently passed four bills that aim to reduce levels of incarceration by lowering penalties, allowing offenders to pay off fines more quickly, and increasing the use of diversionary programs.  The Senate has also passed a bill aimed at reforming the juvenile justice system.  Those bills should be taken up by the House and passed.

But Massachusetts is not necessarily a success story.  We have far more work to do.  For starters, it is not much of an accomplishment that Massachusetts has an incarceration rate lower than that of the entire country.  As noted, the U.S. is completely out of step with the rest of the civilized world.  With an incarceration rate of 377 per 100,000, Massachusetts still far exceeds Iran (287), Singapore (219), the United Kingdom (144), Canada (114), France (103), and Germany (78).  And, in addition to the 23,000 incarcerated, another 70,000 individuals in the Commonwealth are under some other type of criminal justice supervision, either parole or probation, and those on probation are typically poor and cannot afford the fees associated with their supervision.

Moving beyond the total numbers, a deeper look at who is incarcerated here reveals that Massachusetts’s prison population is profoundly skewed against minorities: whites constitute 75% of the total population but only 43% of the prison population, while Hispanics are 10% of the total population but 26% of the prison population, and African-Americans are 6% of the total population but 28% of the incarcerated population.  The racial disparities in Massachusetts far exceed the national average.  According to Supreme Judicial Court Chief Justice Ralph Gants:

[A]s a nation, in 2014, the rate of imprisonment for African-Americans was 5.8 times greater than for Whites; in Massachusetts, it was nearly 8 times greater. As a nation, in 2014, the rate of imprisonment for Hispanics was 1.3 times greater than for Whites; in Massachusetts, it was nearly 4.9 times greater.

Citing such statistics, Chief Justice Gants recently launched an initiative to study the racial disparities in imprisonment rates in Massachusetts.

One likely cause of disparate rates of incarceration is discriminatory police practices, as I wrote in my previous blog post.  According to a report from the Boston Police Department, 63% of Boston police-civilian encounters from 2007 to 2010 targeted African-Americans, even though they make up less than 25% of the Boston population.  Given that targeting, it is not altogether shocking that African-Americans make up a disproportionate share of the Massachusetts prison population.  And how many of those targeted were among the tens of thousands affected by the malfeasance of chemist Annie Dookhan?

A new report, entitled “The Geography of Incarceration,” details how this demographic discrimination has geographic consequences, devastating entire Boston communities.  According to the report,

Disadvantaged neighborhoods can reach a tipping point where the benefits of taking individuals committing crime out of the community are overcome by the negative consequences of sending so many residents cycling in and out of prison. Beyond the additional neighborhood churn, there are other reasons why incarceration can become self-defeating in high doses: Prison becomes normalized, and therefore much less of a deterrent, when many people experience it. Removing individuals from gangs and the drug trade leads to additional recruitment to replace those lost, exposing more youth to illicit activity. And low-income households with a breadwinner in prison find it challenging to support children at home, while also investing money and time assisting their incarcerated family member; a missing parent and family hardship become a recipe for juvenile delinquency.

So the criminal justice system in Massachusetts is destroying low-income, mostly-minority communities across the Commonwealth.  What can we do about it?

I will try to answer that question in a second blog post later this week.

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