The following letter was drafted by Caroline Bays and Jonathan Cohn from the PM Issues Committee and transmitted to the CJR conferees:
House Chairwoman Claire Cronin, Joint Committee on the Judiciary
Senate Chairman William Brownsberger, Joint Committee on the Judiciary
Majority Leader Ronald Mariano
Chairwoman Cynthia Creem, Senate Committee on Bills in Third Reading
Ranking House Minority Member Sheila Harrington, Joint Committee on the Judiciary
Senate Minority Leader Bruce Tarr
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January 17, 2018
Dear Members of the House-Senate Conference Committee:
The Massachusetts incarceration rate, while low compared to other states, is three to four times higher than that of European countries. In fact, there are only seven countries with a higher incarceration rate than Massachusetts.
There has been a growing consensus that the policies of the “tough on crime” era were misguided. They did not make us safer, but instead entrenched lasting racial and economic inequities. Studies have shown that high levels of incarceration have devastating consequences for minority communities, including an increase in crime, poverty, and homelessness. They prevent individuals and communities from thriving and living up to their full potential and make cherished rhetoric of “liberty and justice for all” ring hollow.
We are grateful to the House and the Senate for their exhaustive work on Criminal Justice legislation. Both the House and Senate bills have many excellent provisions, and in the following letter, we identify (a) essential provisions in both bills that should be included in a final Conference report, (b) places where one bill or the other was superior and whose provisions merit inclusion, and (c) a few places where the bills stray from their intent. The subsequent recommendations will best help to achieve our mutual goal of ending mass incarceration in Massachusetts.
Mandatory Minimums
Mandatory minimum sentences remove judicial discretion in sentencing and treat every offender with the same blunt instrument, regardless of context. Mandatory minimums have succeeded spectacularly at fueling mass incarceration, but do not reduce crime. Our guiding goal is the elimination altogether of minimum mandatories, because of their abject failure to do what they purport to and their contribution to racist mass incarceration. Short of abolition, we advocate the reduction wherever possible of existing manmins, and rejection of any new ones.
Accordingly, Progressive Massachusetts urges the inclusion of the following:
- All provisions that end mandatory minimum sentences, including the mandatory minimums for selling in a school zone which disproportionately impact minority communities
- Higher thresholds to trigger a mandatory minimum sentence for trafficking in cocaine (Senate Sections 90-91), or fentanyl or carfentanil (Senate Sections 92-96). The lower amounts are likely to result in long sentences for non-traffickers who are struggling addicts – a result contrary to the overall intent of both bills.
- Good time eligibility, i.e, Senate Section 343, which allows persons serving sentences for offenses that have been repealed by this legislation to begin earning good time as of the law’s effective date. Leaving the current law, which denies these prisoners all prospect of reintegration until they have served their mandatory minimum term, in place would perpetuate a destructive consequence of the war on drugs: indifference toward the prisoners on whom mandatory minimum sentences are selectively imposed (three-quarters of whom are members of racial or ethnic minorities) and to the communities to which they will eventually return. Including Senate Section 343 in the conference report would further the recommendations of the Council on State Governments that we increase the capacity of prison programs aimed at reducing recidivism and create incentives for completing such programs.
Moreover, we urge you to reject the creation of any new mandatory minimum sentences, or the strengthening of those that exist. We applaud the House’s rejection of the amendment to impose 5 year mandatory minimum sentences for the distribution of a drug that results in the death of the user, as any increase in mandatory minimums is contrary to the purpose of ending mass incarceration. Increasing the number of drugs which will result in mandatory minimums as well as adding the brand new mandatory minimum for assaulting a police officer, a frequently abused charge, runs counter to the intent of returning the decision of justice back to the judges, where it belongs.
Fees and Fines
Excessive fees and fines criminalize poverty and warp the justice system, preventing us from delivering on the promise of “liberty and justice for all” and turning jails into debtors’ prisons.
Accordingly, Progressive Massachusetts urges the inclusion of the following:
- Increasing so-called “fine time” from $30 per day to $90 per day and requiring appointment of counsel and determination of financial hardship before a court sentences a person to incarceration for failure to pay fines.
- Abolition of parole fees (Senate Section 323) and the waiving of probation fees where a substantial financial hardship exists (Senate Sections 287-288).
- Additional provisions in both the House and Senate bills that allow for numerous other fees and fines to be waived upon a finding that the imposition of the fine would create a “substantial financial hardship”
Juvenile Justice
Involvement in the criminal justice system can be traumatic for children. Our policies should promote rehabilitation, especially for those most at risk. Successful reentry programs for youth bring community-wide benefits.
Accordingly, Progressive Massachusetts urges the inclusion of the following:
- Reducing the time to seal juvenile records and allowing for expungement in order to improve youth outcomes upon re-entry
- The exclusion of small children (under age 12) from delinquency proceedings
- Raising the age of juvenile jurisdiction to include 18-year-olds
- Creation of a civil infractions category of offenses for children and the decriminalization of certain low-level offenses for which adults would not be subject to incarceration
- Establishment of a parent-child privilege to ensure children can talk freely to their parents (Senate §202)
- The Senate’s “Romeo and Juliet” provision, which offers a sensible and limited exception to criminal prosecution for close-in-age youth who engage in consensual sexual activity
- Provisions to reduce school-based arrests by ensuring schools and police set guidelines on school discipline and arrest
- Limitations on solitary confinement of young people
Solitary Confinement
As a form of cruel and unusual punishment, solitary confinement runs counter to professed American values, and it can have irreparable damage on the individuals subject to it.
While we support the Senate version of the bill, we ask that some of the sections of the House version also be included in the final version. In particular, we urge the inclusion of the following:
- Provisions to ensure that prisoners are transitioned out of segregation for a certain amount of time before they are scheduled to be released
- Establishment of an oversight committee and corresponding data collection
- The screening out of mentally impaired individuals from segregation
- Access to out-of-cell programming and/or activities for a minimum of 2 hours a day at least 5 days a week
Miscellaneous
We also support the inclusion of the following key provisions in the final bill. Adopting these policies will help to ensure that Massachusetts promotes just and humane treatment of all of our citizens.
- Using the cost savings from reduced incarceration for community programs through a Justice Reinvestment Fund which will lower recidivism and benefit our entire community
- Providing community-based sentencing alternatives for primary caretakers of dependent children who have been convicted of non-violent crimes
- Resentencing those already imprisoned, using the new guidelines
- Raising the felony threshold to $1500
- Ending the punitive price gouging that telephone companies engage in which punish the families of inmates
- Ensuring the safety and access to treatment for transgender inmates
- Ensuring the rights of prisoners to have in-person visits
Our criminal justice system runs counter to our professed values, but it doesn’t have to. In the ensuing weeks, you will have the opportunity to pass a long-overdue overhaul of the system, enacting changes with far-reaching benefits to communities across the state. We hope that you embrace that opportunity.
