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

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

In my last blog post, I discussed some of the steps Massachusetts has taken in recent years to reform the state’s criminal justice system and the problems that remain in that system.  In this post, I will discuss some reforms that Massachusetts should enact in the next legislative session.

For starters, Massachusetts must abolish mandatory minimum sentencing for drug offenses once and for all.  Despite the liberal political leanings of many in state government, the state’s District Attorneys somehow remain staunchly opposed to any such reform.  According to the title of a 2015 letter in the Boston Globe signed by nine of the Commonwealth’s DAs: “Opponents of mandatory minimum sentencing fail to account for reality.”  That’s a bold choice of headline, particularly once you consider that those reality-ignoring opponents include Supreme Judicial Court Chief Justice Ralph Gants, who systematically tore apart the arguments in favor of mandatory minimums in a 2015 speech at UMass-Boston, as well as Catholic leaders from across the Commonwealth.

The headline is even more surprising when you consider the actual substance of the arguments in the DA’s letter.  They argued, for example, that mandatory minimums have a limited impact because only 1% of defendants were actually convicted of drug crimes subject to a mandatory minimum sentence in fiscal year 2013.  But that argument is a red herring – the point is that defendants are charged with crimes that carry mandatory minimum sentences, and that distorts the entire plea negotiation process.  Defendants charged with such crimes are generally too scared to take them to trial, given the heightened risk associated with a guilty verdict.  As an attorney, I have seen this dynamic play out repeatedly, even in cases with a viable defense.  The risk of a trial is simply too great when, for example, the mandatory minimum is ten years but the plea offer is for a one-year sentence.  Even an innocent defendant might rationally take such a deal.  Those that plead guilty rarely (if ever) plea to the charges that carry the mandatory minimum penalties, but the dropped charges still have an outsized impact.  In the words of Chief Justice Gants:

Even when the prosecutor agrees to drop the minimum mandatory charge in return for a plea, the judge still generally has no choice in the sentence, because the price the prosecutor often demands to drop the minimum mandatory is an agreed-upon sentence, which the judge has little choice but to accept, because the alternative is to force the defendant to go to trial, where if he loses, he will receive the higher minimum mandatory sentence.

In their letter, the prosecutors also noted that 73% of Massachusetts prisoners in the Department of Corrections serving time for drug offenses “had a history of crimes involving firearms or violence.”  But that argument both ignores the obvious fact that their statistic means that 27% of those prisoners apparently had no history of violence – a sizable percentage representing thousands of actual human lives and suffering – and that the Department of Corrections houses only about half of the state’s prisoners.

If these are the best arguments that those on the other side of this debate can muster, abolition of mandatory minimum sentences is inevitable.  Unfortunately, the Supreme Judicial Court recently issued a decision that foreclosed the ability of judges in the Commonwealth to depart from the mandatory minimum terms specified by statute for certain drug offenses.  Two attorneys from our firm – Emma Quinn-Judge and Monica Shah – submitted an amicus brief in that case on behalf of The Constitution Project (and others), which detailed the broad national consensus on the failure of mandatory minimum sentencing and the reforms that other states have enacted to limit or eliminate such sentencing schemes.  The brief describes how Massachusetts is squarely outside the mainstream on this issue, as the majority of states permit judges to depart from mandatory minimums under certain circumstances.  Because of the SJC’s ruling, however, the only way Massachusetts can join that consensus is via new reform legislation.

Massachusetts should also improve the front and back ends of its criminal justice system, by substantially changing both its pretrial and post-incarceration priorities.

On the pretrial side, Massachusetts must pursue bail reform, which would reduce the number of those incarcerated before they even get their day in court simply because they cannot afford to pay bail.  In 1983, the Supreme Court held that a court cannot imprison someone for not paying a fine unless it can show that the person could have paid, but “willfully” chose not to do so.  In other words, you can’t go to jail for being poor.  In reality, thousands of people across the country are incarcerated only because they cannot afford to pay the bail that is required to secure their release.  The problem has gotten so bad that even the Department of Justice – the federal prosecuting authority – has written a legal brief arguing that cash bail is unconstitutional where it does not account for a defendant’s ability to pay.  A system of cash bail obviously discriminates against the poor, as people who can afford to pay to secure their release will do so.  And research has shown that those who are detained pretrial generally have worse outcomes for their cases, in part because they are more likely to enter a guilty plea to avoid further pretrial incarceration.  Put those last two sentences together: A system of cash bail coerces poor defendants into pleading guilty.

Pretrial detention is a particular problem in Massachusetts.  Since 2008, the state’s pretrial detainee population has grown by 13%, while overall arrests have declined by 10%, and – like in the general prison population – there are large racial disparities in the population awaiting trial in jail.  Minority defendants also face a much higher bail.  And many of the people held were not remotely high-risk defendants.  In 2014, the Massachusetts Bail Fund, a private fund that pays bail for certain low-risk detainees, posted bail for 65 defendants who were being held on $500 or less.  None of those people posed a risk to the community, but they could not afford their nominal bail.  They were in jail because they were poor.

Systemic reform is necessary, and there are a number of steps Massachusetts should take.  For example, rather than rely on the payment of cash bail, the state could rely on unsecured bonds.  Defendants who leave jail would then pay no money up front, but would owe if they failed to appear for their court date.  We should also move toward a system that favors intensive pretrial supervision over incarceration, and that ensures judicial reliance upon objective, evidence-based risk factors to inform the exercise of a judge’s discretion in setting bail.  Fewer pretrial detainees could mean significant savings for our state – Washington DC eliminated cash bail and saves over $1 million per day.  New York City has also made significant strides in bail reform.  We should follow their lead.

As to post-incarceration reform, Massachusetts should invest heavily in programs that are proven to reduce recidivism.  Recidivism is a significant problem in Massachusetts – within three years of their 2011 release, over half of DOC releases and two-thirds of House of Corrections releases had new criminal justice system involvement.  Fortunately, we know how to solve this problem.  Roca, an extraordinary program based in Chelsea and serving 21 communities, engages in intensive intervention with high-risk young people.  Its program works.  Roca serves the highest-risk populations in the Commonwealth’s most poverty-stricken areas.  Nonetheless, 79% of all 711 ROCA participants had no new arrests in FY2016, while 87% of those who completed the program’s two-year model in FY2016 had no new arrests.  By reducing recidivism, and targeting intervention in the very communities that are also targeted for police enforcement, programs like Roca reduce both the overall prison population and the discriminatory impact of the criminal justice system on these neighborhoods.

Massachusetts also has a specific grant program – the “Safe and Successful Youth Initiative” (SSYI) – that is designed to reduce gun-related violence among high-risk young men.  But funding for that program has been slashed in recent years, and FY2017 looks to be no different.  Every year, the Commonwealth spends over $1.1 billion on incarceration – $48 million on incarcerating misdemeanor defendants alone – but in FY2017 will spend less than $10 million on SSYI grants.  And what little money is spent is spent poorly.  Only 9% of state-funded programs target the four most predictive domains of criminal behavior.  The Commonwealth must invest in programs like Roca that address the root causes of recidivism in the most at-risk population.  Even the most intensive, expensive intervention programs cost a fraction of prolonged incarceration, not to mention the value (and humanity) gained from making a prisoner into a contributing member of society.

The Brennan Center’s report – which suggests the release of over half a million prisoners – makes even more ambitious recommendations.  For example, it recommends the complete elimination of prison for certain low-level crimes absent exceptional circumstances, crimes such as drug possession, minor property crimes, and simple assault.  According to the report, those offenses account for 25% of the prison population.  That is an insight worth mulling over.

Massachusetts should not content itself with its status as a national criminal justice leader when the United States is so far outside the international mainstream.  We have more work to do.  For the past year, the nonprofit Council of State Governments Justice Center has been working with local leaders – including Governor Baker and Chief Justice Gants – to study the Commonwealth’s criminal justice system and make recommendations for reform.  Action on these recommendations should be swift and significant.  Governor Baker has said he sees “something really big” coming in criminal justice reform next year.  He may be right, but activists – and editorial writers for the Boston Globe – are already worried that any legislation won’t go far enough.  Hopefully, the legislature will prove their fears unfounded.  With progress at the federal level unlikely over the next four-to-eight years, Massachusetts must lead the way in the cause of criminal justice reform.

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