Thank you to @CourtWatchMA and @JusticeHealing for your contributions to this write-up.

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Right now, families are charged exorbitant fees to maintain vital connections with incarcerated loved ones (sometimes $5 or $6 for a 15-minute call). This is a regressive tax on the most vulnerable populations of the Commonwealth that also harms public safety by limiting communication and weakening community bonds.

While only 21 percent of the state’s population is Black or Latinx, more than 54 percent of the people imprisoned by the Department of Correction are, with similar overrepresentation in county jails and houses of correction run by the Commonwealth’s sheriffs. Black and Latinx children are, respectively, nine and three times more likely than White children to have a parent in prison. As communities already struggle with the high cost of housing, health care, and transportation, no one should be forced to choose between paying rent or buying groceries and maintaining contact with loved ones.

Moreover, punitive policies targeted at the families of incarcerated individuals leave us all worse off: numerous studies have shown that contact with loved ones promotes successful reentry after incarceration.

In their respective budgets in April and May, the MA House and Senate acknowledged this reality, heeded the advocacy of groups like Families for Justice as Healing and the rest of the Keeping Families Connected coalition, and respectively voted to provide calls at no cost to all people incarcerated by the state prisons, houses of correction, and county jails in Massachusetts (a policy referred to as “No Cost Calls”).

The Budget Conference Committee reconciled the two versions, largely adopting the House language with some important elements of the Senate language, including limits to commissary fees–what families pay to purchase necessary hygiene and food items not provided by prisons and jails directly. While the final language the Legislature sent to the Governor was not as robust as the Coalition had urged–for example, it did not include guaranteed or unlimited minutes per person per day–it was still a watershed moment for a policy deeply and urgently needed by some of the Commonwealth’s most economically burdened families, disparately families of color. The wide support in the Legislature was proven by the adoption of this conference language in the budget.

But the formal period of the 192nd Legislative Session just ended Monday morning in an extension of “July 31” by more than ten hours by the Legislature, and No Cost Calls has not become law. What happened? 

Self-Defeating Procrastination

The Massachusetts State House has become notorious for passing late budgets. Despite both chambers being Democratic, they did not pass a post-Conference budget until July 18, two-and-a-half weeks into the new fiscal year. 

For context, the Senate (which votes in May) passed its budget on May 26. That means it took the House and Senate almost two months to come to an agreement. By waiting until so late, they gave Governor Charlie Baker the upper hand to send back amendments or attempt to veto parts of the budget given the inevitable chaos of the end of the session. 

So, on that front, both chambers deserve at least some blame, but, as we’ll see, the burden lies much more on the Senate. 

Yes, Massachusetts, Charlie Baker is a Republican, or The Dangerousness of “Dangerousness”

Rather than simply signing the budget with the No Cost Calls language, Baker sent back an amendment using the No Cost Calls provisions of the budget as a vehicle to pass his bill to expand the use of “dangerousness” hearings, one of his top priorities for the session. In other words, he decided to hold No Cost Calls hostage to an expansion of incarceration, and worse, pretrial detention–jailing people who are presumed innocent.

What is a “dangerousness hearing”? It is when the prosecution requests that a judge hold a defendant without bail for up to 120 days in district/municipal court or up to 180 days in superior court because the prosecution alleges the person is “too dangerous” for release, i.e. no conditions of release could protect the safety of a specific individual or the community as a whole. Constitutionally, dangerousness hearings must be limited to the most serious crimes, those which inherently carry “the menace of dangerousness,” according to both the U.S. Supreme Court and the Massachusetts Supreme Judicial Court. To be clear, detention on dangerousness grounds is a form of pretrial detention: individuals have not been convicted yet, so a dangerousness hearing undermines the fundamental principle of “innocent until proven guilty.”

Although there is incomplete data collection on the use and abuse of pretrial detention, it is clear that pretrial detention both reflects and exacerbates the systemic racism of the criminal legal system. Recent available data on dangerousness requests, in particular, are stark. The Massachusetts Trial Court publishes a dashboard on prosecutorial requests for dangerousness hearings, which was updated in January 2022 to include racial demographic information for the first time (click on the “Adult Demographics (table)” tab at the top, and select ‘Race/Ethnicity” in both drop-down menus under “Select a Demographic…”). 

Statewide, in a state that is 71.4% non-Hispanic white, according to the last full year of available data (FY21), roughly 3 in 5 dangerousness hearings were brought against people of color. Black people made up 28.4% and Hispanic people made up 29.6% of prosecutorial requests for a dangerousness hearing in district and municipal courts. Black people made up 32.3% and Hispanic people made up 30.1% of prosecutorial requests for a dangerousness hearing in superior courts. 

According to the 2020 landmark study on racial disparities in sentencing in Massachusetts out of Harvard Law School, people of color are more likely to be over-charged for the same conduct, and more likely to be indicted to superior court for the same offenses, as compared to white people. In fact, Harvard’s researchers determined that a whopping 70% of the reason for sentencing disparities was attributable to prosecutorial decisions. These same prosecutorial patterns and implicit biases are reflected in the current use of the “dangerousness” statute to send people to jail pretrial without the possibility of release, a practice that deeply harms communities and coerces people to take pleas just to get out of jail.

 

With a county by county breakdown, the numbers on racial disparities are even more alarming, as Commonwealth Magazine reported on Friday:

In Bristol County, Tyler said, people of color faced 58A hearings at three times the rate of white defendants; in Berkshire County, the rate of dangerousness hearings was four times as high for nonwhite defendants as white defendants, she said.

About 15 percent of Middlesex County’s residents are people of color, but they represent 52 percent of cases involving dangerousness hearings, according to Tyler. And in Suffolk County, home to Boston and the State House, 90 percent of dangerousness cases are for defendants of color, who are only 48 percent of the population.

Further, since 2018’s “bail reform”—when the Legislature expanded upon an “ability to pay” standard for judges setting bail, required by the SJC in Commonwealth v. Brangan—prosecutors have begun to use the dangerousness statute more to try to convince judges to hold people without bail. Groups like CourtWatchMA have documented dramatic upticks in the use of dangerousness even in counties led by prosecutors who ran as progressives. And that change in usage over the last four years can also be seen on the Trial Court’s dashboard (click on the “Trends” tab). Even as the overall number of criminal cases has decreased (use the drop-down menu to compare the number of “lead charges” per year), more than 1,000 additional cases went through dangerousness hearings in FY21 as compared to FY18.

Finally, even though the current 58A “dangerousness” statute includes a maximum limit of 120 days in jail for cases out of district/municipal court and 180 days for cases out of superior court, already those limits are not always honored. First, keep in mind that a case that originates in district/municipal court can later be indicted to superior court, so those 120/180 limits may become consecutive–a maximum of 300 days, or nearly 10 months in jail, pretrial while presumed innocent. That’s already our current law. But further, because of how the Commonwealth’s speedy trial rules get interpreted, people may sit in jail far longer than that with no recourse. Members of the Families for Justice as Healing participatory defense hub have been fighting for loved ones who have spent 316 days, 387 days, 491 days, and 914 days fighting for their freedom. Accused people who litigate harder–for example, requesting continuances to file motions to suppress the evidence against them or to better prepare for trial–may “toll” the clock, meaning they may sit for days or months in jail that don’t get counted against the statutory limit.

So what is it Governor Baker wants to do with this 58A statute? He wants to make it even more draconian and stacked against people accused of crimes. Baker’s amendment would have, among other things, (1) created a new felony offense for tampering with a GPS device or an interlock breath-test device, (2) significantly expanded the list of crimes for which a dangerousness hearing can be sought–including a number that do not involve any allegation of physical harm, (3) allowed dangerousness hearings to be sought at any time during a judicial proceeding, as opposed to only at the beginning, and (4) allowed individuals to be held in pretrial detention indefinitely, removing the current statutory caps altogether.

The ACLU and Jane Doe Inc. were among the most prominent and vocal opponents of Baker’s bill. As Jane Doe Inc. said of the bill, it “include[s] certain policies that would have harmed our communities and actually undermined the safety and wellbeing of survivors themselves.” In their legislative testimony against it, they highlighted concerns about racial disproportionality, the potential for an increase in dangerousness hearings to take court time and energy away from more serious cases, and the impact on survivors arrested because of an accusation made by their abuser.

Baker had been pushing the bill with all the old “tough on crime” tropes, but as people are increasingly understanding, prisons and policing are not the foundation of public safety: investing in housing, health care, education, and community stability and flourishing is. 

So The Bill Goes to the House 

On Friday, as advocates panned Gov. Baker’s petulant amendment, members of the Black and Latino Legislative Caucus held a powerful press conference pushing back against Baker’s amendment. Rep. Brandy Fluker-Oakley (D-Mattapan) highlighted how Baker is ignoring real community voices and community needs :“The truth of the matter is, our governor is not recognizing the victimization that our communities experience day in and day out by being overpoliced. Furthermore, it is abhorrent and an abomination that he would even try to tie this to no-cost calls when it is the lifeline that our families are able to connect with those on the outside and data and statistics and study after study shows that when there is family contact, it reduces recidivism.” Rep. Chynah Tyler (D-Roxbury) spoke of the immense racial disparities in pre-trial detention: “The impacts on communities of color are staggering, and it simply sounds like a racist system to me.” 

The next day, the House voted overwhelmingly to reject Baker’s amendment. Only four Democrats: Colleen Garry (D-Dracut), Dave Robertson (D-Tewksbury), Paul Tucker (D-Salem), and Jeff Turco (D-Winthrop) joined Republicans in voting for Baker’s amendment.

If your state rep is among the 122 NAYs, you should thank them.

But then Comes the Senate

That the Senate did not similarly vote to reject Baker’s amendment on Saturday was a concerning sign itself. This delay over the weekend led Sen. Sonia Chang-Díaz (D-Jamaica Plain) to lead the Senate’s Black and Latino Caucus (her, Sen. Lydia Edwards of East Boston, and Sen. Adam Gomez of Springfield) in an email to their colleagues lifting up the House Black and Latino Caucus’s press conference and calling for a rejection of Baker’s amendment:

“No-cost cost calls reform is a priority of the MBLLC this year. It is a provision designed to stop the regressive taxation of the families of incarcerated people—primarily women and children, who have committed no crime—to pay for programming in our jails and prisons. In addition, maintaining family bonds through phone and video calls helps reduce the well-documented trauma experienced by children of incarcerated individuals, AND reduces recidivism rates when incarcerated individuals return to society. For all these reasons, this reform was consensus policy between the House and Senate in both chambers’ budget proposals.  

We reject, in the strongest terms, the Governor’s use of this consensus provision as leverage to force through separate legislation that he favors.  

Additionally, it’s important to note that his bill on pre-trial 58A detentions has not received a favorable report from committee. 58A detentions already result in the heavily disproportionate incarceration of Black and Latino defendants—without being convicted of any crime. Increasing their use and scope would exacerbate the problem of disparate incarceration that we have worked so hard to move away from in recent years, with the passage of MA’s 2018 Criminal Justice Reform law.  

We hope you will stand with the Black & Latino Caucus and numerous racial justice and civil rights organization in advancing these long-awaited no-cost call reforms, and rejecting the Governor’s attempt to attach an unrelated piece of legislation. The House has already voted to do so. “

Advocates also continued to press the Senate to reject the Governor’s Amendment and reject any version of a dangerousness proposal, especially because if it was attached to No Cost Calls it would almost certainly defeat that policy whole cloth. Families for Justice as Healing and Building Up People Not Prisons held a rally outside the Statehouse in the afternoon and a demonstration inside the halls, capturing the attention of reporters and legislators alike. 

Throughout the evening, advocates from Jane Doe and Families for Justice as Healing, among others, continued to press senators to reject any expansion of pretrial detention attached to No Cost Calls.

The Senate ended up not even taking up consideration of it until very late on Sunday night, extending into the wee hours of Monday morning (with the Legislature voting to extend the session further and further into the morning each hour). 

Sen. Jamie Eldridge (D-Acton) and Sen. Sonia Chang-Díaz (D-Jamaica Plain) both spoke passionately against the amendment.

Eldridge highlighted how the dangerousness law undermines the “bedrock principle that all people are innocent until proven guilty” and that Baker’s proposal pulls us backwards from recent positive movement on juvenile justice reform, as it would allow more children as young as 12 to be held in detention. He spoke about how expansive even Baker’s “narrowed” list of crimes to add to the dangerousness statute was (including some marijuana offenses, a doubling down on a drug war the state has been trying to move past) and the striking racial disparities in dangerousness hearings in Middlesex County (“Although 15 percent of Middlesex County’s residents are people of color, they represent about 50 percent of those involved in dangerousness hearings.”).

Sen. Sonia Chang-Díaz (D-Jamaica Plain) criticized Baker’s selective focus on some victims rather than others (“It’s important we hear from victims, but it’s also important that we remember there are many different kinds of victims and that we not see the pain and suffering of some victims to the exclusion of other victims.”) and highlighted the racial disparities in pre-trial detention in Suffolk County (“Ninety percent — 90 percent — of people subject to 58A detentions in Suffolk County are people of color, compared to 48 percent of the population in Suffolk County.”). She also underscored the harm that indefinite pre-trial detention can cause: “Imagine being held for 200 days, 500 days, 900 days, without being convicted of a damn thing and the impact that has on your family and your children. You lose your job, you lose your housing, you lose your children.”

In his speech in favor of the amendment, Bruce Tarr jarringly refused to enumerate the new offenses to be added to the dangerousness statute, as though that were merely secondary: “I’m not going to go through the entire list. Some of you would like me to do that. Perhaps tomorrow we can gather in some part of the State House and I will go through the list for you. Suffice it to say the governor has proposed a significant expansion of the list.” He wanted the Senate to pass an expansion of the carceral system at midnight without even reading it. 

The Baker amendment was rejected on a standing vote: 8 in favor, 14 against. Unfortunately, there is no record of who the 8 and who the 14 were. 

A Dangerous Show Vote

Rather than move forward, as the House had, and challenge Baker to veto No Cost Calls (and then return to session to override him), the Senate decided to take up a narrowed, but still harmful, version of Baker’s amendment, with no House buy-in. Senator Tarr had introduced seven amendments, each capturing a piece of what Baker had proposed, but he first moved forward the redrafted Amendment 6 which he framed as a consensus compromise that could be passed in isolation.

The new amendment would create a new misdemeanor offense for tampering with a GPS device (2.5 years in prison, and a felony of up to 5 years for a second and subsequent offense), require that anyone convicted of that offense be subject to presumptive pretrial detention without the possibility of release on any subsequent allegation, expand the list of crimes that would allow the prosecution to move for a dangerousness hearing (including crimes like “criminal harassment” and “attempted extortion” which may involve no threat or use of force), and create a system by which victims are given a six-hour notification in advance of an individual’s being released from detention, including at a police station.

No senators opposed the latter provision. But creating new non-violent crimes (especially for conduct that already has sanctions under current law—if a person removes their GPS, they will be subject to a hearing on a violation of their conditions of release and will likely face time in jail or prison whether released pretrial, on probation, or on parole) and expanding the reach of the carceral system is never wise. It’s especially problematic to do so at 1 am when most senators have not considered the ramifications of what they are voting on.

Sen. Bruce Tarr (R-Gloucester) was unsurprisingly dismissive of claims of systemic racism in the judicial system: “I would suggest that if we want to argue now that the judiciary is somehow flawed in its decision-making, that is a much larger issue and we find ways to address it. But until we do that, those sworn to the judiciary are charged with the solemn responsibility of making the best decisions they can. Until we indict that process, we need to be able to follow it. “ 

Sen. Jamie Eldridge (D-Acton) explained how the language would expand dangerousness hearings to cover many non-violent crimes, citing cases such as a dispute between neighbors, a child throwing a wastebasket across the room, or consensual sex between teenagers close in age. He rightfully emphasized the importance of understanding how the charges are used in practice, rather than discussing them only in the abstract: “I ask you not to think of the worst-case scenario, but the best-case scenario, the mistakes that could be made, the biases in our system, the implicit institutional racism in our judicial system.”

Sen. Mike Barrett (D-Lexington) gave a passionate speech about the need to learn the lessons from past policymaking that fueled mass incarceration: “I can tell you that every time we added new criminal laws to the books and every time we extended sentences and every time we created second strike and third strike, you’re out rules, we always did it because in the moment, the arguments seemed compelling. We always made the same mistake. We focused on one or two truly awful scenarios and we then permitted ourselves to make decisions about multiple situations based on those one or two situations. In this particular case, as I’ve listened throughout the evening, I’ve heard folks cite, quite persuasively, one or two experiences of their own, part of their lived experience perhaps as a professional, which lead them to believe there are elements here that are absolutely required. There are laws among those enumerated here that absolutely should be added to the list of what’s allowable for a dangerousness hearing. So we allow the particular to lead us to overlegislate. Every time we’ve overlegislated in a way that’s led to over incarceration, it’s because we’ve been led by a compelling argument or two to overextend the amount of law we’ve created. In this particular instance tonight, we’re about to vote based on extremely persuasive arguments in favor to add 25 new statutes to the list that can trigger dangerousness hearings. This is in a state where we’ve already built out the list pretty extensively. We’re about to overlegislate just as we did during the Bill Clinton years, just as we did during the 1990s. We know there’s one or two compelling reasons to act, and we’re allowing ourselves to overreach. We are going too far. We will regret this. This is why too many people wind up in jail. This is why our incarceration rates in this country are the greatest of any democracy on the face of the earth.”

Sen. Sonia Chang-Díaz (D-Jamaica Plain) praised Barrett’s speech and similarly criticized the scope of the proposal: “We have to recognize debating this amendment, yes, it will help some people. There are many components of this amendment I would like to support, particularly victim notification. This amendment will also harm people. We have to be honest about that….We have had many months to arrive at a better compromise. It is an option before us tonight. We could redraft this amendment to reduce its scope, to reduce its overreach. We’re choosing not to do that.” She also read Jane Doe Inc.’s statement in opposition to the amendment, noting that they had emailed legislators that evening to oppose even the redrafted amendment.

Sen. Cindy Creem (D-Newton) explained to her colleagues that voting for this amendment would effectively kill the No Cost Calls legislation: “So this is sort of a double whammy to those people in prison because we’re going to put more people in prison. By voting this amendment, we’re likely to make sure prisoners don’t have the phone calls we voted they’d be able to have. As we do this today and the hour is late, the House rejected this. Perhaps my colleagues are right. We missed an opportunity. I understand. Perhaps there should have been an negotiation. But there are many prisoners sitting in jail who are unable to speak with their children, their parents, their friends, and this body voted they should have those calls. This late hour, if we vote for this, we can be sure they won’t have that opportunity.” She also criticized the terrible, rushed process: “I’m not even sure I understand how many crimes we’re voting on, and I would say most of us don’t. Most of us don’t understand the nuances, some of which involve crimes we’d call Romeo and Juliet between young children who are having sex these days. Maybe we should do that, maybe we shouldn’t. We are punishing those people incarcerated because we didn’t do what we’re supposed to do.”

Sen. Lydia Edwards (D-East Boston) (despite the earlier email she’d signed onto encouraging her colleagues to reject the Governor’s amendment), Sen. Becca Rausch (D-Needham), Sen. Marc Pacheco (D-Taunton), and Sen. Paul Feeney (D-Foxborough) all invoked anecdotes to support the amendment and refused to engage with the arguments put forth by critics. Sen. Brownsberger (D-Belmont) misleadingly tried to frame the expansion of pretrial detention as a way to support bail reform. Sen. John Velis (D-Westfield) simply scoffed at the idea of due process concerns. 

What these senators tried to avoid directly addressing is the simple fact that by voting for the amendment, they were defeating No Cost Calls for the session. The only path forward for No Cost Calls was for the Senate to reject Baker’s amendment, as the House had done and the Senate had done moments before, and for the House and Senate to commit to returning to a special session to override a veto from Baker if need be. The Senate’s decision to introduce new language at a late hour without House buy-in was a bad-faith move, setting up the vote to be nothing more than a show vote. The dangerousness law would not be changed, and No Cost Calls would die. 

Knowing all of that, they still voted 30 to 8 in support of the amendment. 

Thank you to the 8 senators who stood by No Cost Calls and against a return to failed “tough on crime” policies that expanded mass incarceration and would leave communities less safe: Mike Barrett (D-Lexington), Sonia Chang-Díaz (D-Jamaica Plain), Jo Comerford (D-Northampton), Cindy Creem (D-Newton), Jamie Eldridge (D-Acton), Adam Hinds (D-Pittsfield), Pat Jehlen (D-Somerville), and Jason Lewis (D-Winchester).