CRIMINAL JUSTICE REFORM:

Fairer Approaches and Safer Communities

Let's Aim High

A well-functioning criminal justice system should be, at its core and in everything it does, about justice and about protecting public safety.

A well-functioning criminal justice system should support the prevention of criminal activity in the first instance, operating as part of an ecosystem that addresses and eliminates the underlying causes of crime including poverty, lack of education and job opportunities, mental illness and addiction.

A well-functioning criminal justice system should be grounded in evidence and science, operating on fact rather than fear and treating all who encounter it equitably, without regard to race or income.

A well-functioning criminal justice system should punish the crime and rehabilitate the criminal. Sentences and incarceration practices should be appropriate to the crime. Correctional system programs should be appropriate to the needs of the individual, giving him or her the best chance for successful community re-entry and reducing the likelihood of future offenses.

Nothing predicts a person’s future involvement with the criminal justice system as strongly as spending their first day in jail. To make our communities safer, we need criminal justice reform from the front end to the back end. We need to do everything we can to prevent crime. We need to invest in education and housing and health care and shared economic growth, giving even our most at-risk residents healthy and productive pathways.

When crime does occur, we need to deal with it effectively, swiftly and fairly. We need to treat the underlying conditions that contribute to crime, especially mental illness and addiction. We need to give all parts of the system, including police and sheriffs, prosecutors and public defenders, the courts and corrections systems, a wider range of tools and options to tailor punishment and rehabilitation to the particular facts of a case and needs of the defendant. We need to expand in-prison and post-release programs to stop the cycle of recidivism and reincarceration.

Not Satisfied with the Status Quo

A well-functioning criminal justice system is not what we have in Massachusetts today. Massachusetts has an incarceration system, not a criminal justice system. For too long, a tough-on-crime approach has crowded out a smart-on-crime approach, and we are paying too high a price for these outdated policies in both dollar and human terms. Massachusetts spends over $1.2 billion each year on incarceration. Spending levels have been steadily rising in recent years, outpacing inflation by $72 million [1].

For all that Massachusetts spends on incarceration, it’s not clear that our communities are safer as a result. While per capita incarceration rates in Massachusetts are below the national rate, the rate is increasing in Massachusetts faster than in the rest of the country [2]. If Massachusetts were a country, its incarceration rate would be below only 8 other nations - including Cuba, Russia and Rwanda - and higher than nations such as Turkey, Syria and Iran [3]. The incarceration rate in Massachusetts has increased 236% since 1980, even though violent crimes declined 26% in the same period [4].

Overincarceration is terribly expensive for taxpayers - over $53,000 per inmate per year in state prison [5]. Corrections spending per inmate in Massachusetts is rising faster than other areas of the budget, including education aid per student, transit spending per rider, local aid per resident and MassHealth spending per enrollee [6]. Overcrowding in our jails crowds out other important investments Massachusetts needs to make in our Commonwealth.

Overincarceration has terrible costs for individuals, families and communities as well. National estimates suggest that former inmates earn 40% less each year than they would have earned had they not been incarcerated[7]. The incarcerated population in Massachusetts is already disproportionately indigent, and the reduced income potential resulting from serving time only deepens the cycle of poverty and crime. And while each community is affected when a resident is incarcerated and then released to it without the necessary support to succeed, certain communities are disproportionately impacted: over half of the inmates released from state prisons in 2015 returned to just ten municipalities [8]. This results in a series of cascading negative effects in those communities of increasing poverty, housing instability, delinquency, breaking down of neighborhood ties and trust, and normalization of prison to a point beyond which it is an effective deterrent[9].

The overincarceration problem starts even before a defendant goes to trial. Unlike federal and many state courts, Massachusetts does not use a validated risk assessment process to make evidence-based bail decisions, even though simple access to cash bail is a much weaker predictor of a person’s likelihood of returning to court than other factors and puts disproportionate burdens on low-income offenders [10]. Partly as a result of these bail practices, the Department of Corrections has experienced a 23% increase in the pre-trial population in its facilities over the last ten years [11]. Between 2008 and 2013, arrests for all crimes fell 10% but the pre-trial jail population grew by 13%[12]. Pre-trial detainees in Massachusetts are incarcerated on average nearly 60 days before release, compared to a national median length for a felony defendant of 45 days[13].

Mandatory minimum sentences are another driver of our state’s overincarceration trends, particularly for drug-related crimes. Drug offenses are responsible for a quarter of the growth in state prison populations since 1990, and 70% of DOC inmates incarcerated for a drug offense as of January 2017 were serving a mandatory minimum sentence[14]. This incarceration explosion has significant budget impacts - MassInc estimates that reducing drug-related incarcerations to 1990 levels would save the state $35 million annually [15].

40% of all DOC inmates are serving a mandatory minimum sentence[16]. Countless others are serving time on lesser charges, having accepted plea bargains under the threat of mandatory minimums. In all these cases, judges are prevented from considering individual circumstances and determining a sentence that is the most likely to provide that particular defendant with the most effective combination of punishment and rehabilitation to prevent further crime and make the community safer. Furthermore, while each mandatory minimum sentence may have had a compelling rationale for its enactment, taken as a whole, there is very little rationality in the set of crimes that do and do not carry a mandatory minimum sentence. Carrying a firearm outside one’s home or place of business without a license carries a mandatory minimum of 18 months; among more than 200 crimes with higher seriousness levels on the state master crimes list, 169 of them carry no mandatory minimum sentence at all, including rape and manslaughter[17].

Our criminal justice system does a poor job of treating mental illness and addiction as the public health emergencies they truly are. According to a report by the Boston Globe’s Spotlight Team, “Last year, more than 15,000 prisoners walked out of Massachusetts jails and prisons. More than one-third suffer from mental illness; more than half have a history of addiction. Thousands are coping with both kinds of disorders, their risk of problems amplified as they reenter society[18].” In just one example of proven alternative practices, research shows that drug courts reduce crime and the associated costs to the state, the offender, and to his/her community. Nationwide 75% of drug court graduates are crime-free for two years after completing the program; drug courts result in cost savings of up to $13,000 per client, including reduced prison costs, reduced recidivism, and reduced costs born by the victims of crime[19]. Yet only 23 of 62 District Courts in Massachusetts have an adult drug court, and there are only 7 mental health court sessions in the state. We pay dearly for this underinvestment in proven programs: a day of residential substance abuse treatment is just half the cost of a day of correctional facility incarceration in Massachusetts [20].

Massachusetts doesn’t do enough for people who are incarcerated to help make sure they don’t reoffend post-release. Well over 80% of those jailed in Massachusetts will eventually be released [21], yet our current efforts to curb recidivism are limited at best, and our results are underwhelming. Recidivism is a serious problem and a direct contributor to our state’s overincarceration trends: 75% of new convictions are for offenders with previous involvement in the criminal justice system [22]. MassInc estimates that if Massachusetts cut recidivism by just 5%, it would generate annual savings of up to $150 million[23], money that could be reinvested in further programming and supervision strategies to reduce crime and increase public safety even further.

It is particularly important to address overincarceration of youthful offenders. 23% of House of Corrections inmates are between the ages of 18 and 24[24]. Violent crimes are more likely to involve a young adult, and young adults are the most likely age group to recidivate without appropriate intervention and support[25]. Brain science shows that young adults are more impulsive and more prone to poor decision making into their mid-twenties. Correspondingly, data shows that criminal offenses peak in adolescence and then begin to decline in early adulthood[26]. We need to intervene with this population early to change their trajectories and chances for future success, and our failure to do so drives up our future prison population at tremendous financial and social cost.

A significant percentage of offenders being released from prison are unable to access recommended programs due to waitlists and inconsistent offerings across facilities. In FY15, 23% of prisoners released who had been recommended for substance abuse programming could not participate, either because they were on a waiting list or because their facility had no program. This number rises to 28% for sex offender treatment and 37% for violence-reduction programming[27]. Research shows very clearly that prison education is one of the most cost-effective ways to reduce recidivism, yet Massachusetts prisons and houses of correction spend less than 1.5% of their payroll budgets on education programs for inmates[28].

Post-release supervision is also widely understood to be an effective tool for reducing recidivism rates. While a Risk-Needs-Responsivity assessment approach to recidivism reduction programs works well while offenders are in custody, it is twice as effective when also employed in post-release community supervision[29]. Yet more than one-third of inmates released from the Department of Corrections in FY15, and fully 50% of those released from county Houses of Correction, were returned to the community with no supervision whatsoever as a re-entry support[30].

Aggressive fees and fines practices continue to punish offenders unjustly even after they are released. Approximately three-quarters of the people under state correctional control in Massachusetts - about 67,000 individuals - are on some form of probation. The court system collects over $20 million annually in probation-related fees and fines, out of nearly $100 million collected in all court fees and fines. A person on probation is charged between $850 and $1,300 in monthly probation fees, in addition to other fees and fines they may be required to pay. Yet our poorest residents pay probation fees at substantially higher rates than our wealthiest. A study by the Prison Policy Initiative found:
“People in the poorest District Court locations are on probation at a rate almost twice that of people in the wealthiest court locations. The courts serving the poorest populations have probation rates 88% higher than in those serving the wealthiest. As incomes go up, probation rates go down, which means the people who can least afford additional fees are more likely to be on probation and expected to pay up every month. Probation fees function as a punishing regressive tax, wherein the state raises revenue by charging the poorest communities the most[31].”

The Supreme Court ruled in Bearden v. Georgia that it is a violation of the Constitution’s 14th Amendment equal protection clause for a state to imprison someone for failure to pay a fine unless that nonpayment is willful. Yet a report by the Senate Committee on Post Audit and Oversight of on a sample of more than 100 cases of “fine time” in three counties found that in Massachusetts there is a wide variety across fees for how indigency is determined, judges have limited authority to waive fees for indigent defendants and courts differ widely in assessing a defendant’s ability to pay. In the sampled cases, nearly half of the defendants were ordered to serve at least two weeks for debts owed and the median length of stay was nine days[32].

In particular, we need to address our state’s appalling racial disparities in incarceration. African-Americans are incarcerated at a rate of 7.5 times that of whites in Massachusetts, compared to a national rate of 5.1:1. Hispanics are incarcerated at a rate of 4.3 times that of whites in Massachusetts, compared to a national rate of 1.4:1[33]. Overrepresentation of minorities in jails is a problem with many causes; no single entity is solely responsible for creating it, but all of us are collectively responsible for fixing it.

Principles and Proposals

Our system is clearly broken, and we need to work with a sense of urgency for comprehensive criminal justice reform to make Massachusetts fairer and safer for all. Implementing the recent recommendations of the Council of State Governments Massachusetts Criminal Justice Review will be a good first step. We need to go beyond that, however, to achieve real, comprehensive criminal justice reform. As Governor, I will pursue an ambitious agenda that includes the following:

Update Our Approach to Juvenile and Young Adult Offenders.
To limit the number of young adults in the criminal justice system and improve their chances for future success, we will:

  1. Support community organizations and community policing efforts aimed at building strong neighborhood ties and engaging high-risk youth in education and violence prevention programs.
  2. Raise the juvenile age to 21, giving a larger number of youthful offenders access to the juvenile court system, its attentiveness to defendants’ individual needs and its diversion programs for first-time offenders.
  3. Reform the juvenile records process and support pending legislation to allow expungement of juvenile records in certain cases.

Reverse the Trend of Over-Incarceration
To reduce the number of incarcerated individuals in Massachusetts, shorten the duration of incarceration where possible without adversely impacting public safety, and address racial disparities in our prison population, we will:

  1. Update the definition of larceny and index it to inflation. In Massachusetts larceny over $250 is a felony, the third lowest threshold in the nation. This threshold has not been updated since 1987; simply accounting for inflation, today’s rate would be nearer to $1,000.
  2. Expand diversion programs for mental illness and addiction, and provide adequate funding for treatment beds in such programs.
  3. Make specialty courts for drugs, mental health, and veterans uniformly available throughout the Commonwealth.
  4. Encourage utilization of community corrections programs as an alternative to incarceration.
  5. Reform court fee, fine and bail practices, including eliminating cash bail, and stop incarcerating people based on inability to pay.
  6. Repeal mandatory minimum sentences for all crimes except murder, consistent with the recent vote of the Governor-appointed Massachusetts Sentencing Commission.
  7. Urge the Massachusetts Sentencing Commission to complete its recommendations on updates to the state’s sentencing guidelines, including for crimes that formerly carried a mandatory minimum sentence, and file legislation accordingly.
  8. Institute a process for periodic review of sentences that depart from these guidelines.
  9. Allow medical parole for terminally ill and incapacitated prisoners.

Make Incarceration More Effective and Expand Programming.
Concurrent with addressing the size and makeup of the incarcerated population, limiting it to only those people for whom incarceration is a necessary and last resort, we must also address what happens inside prisons and houses of correction, making sure that offenders are not just punished for their crimes, but are also provided with the services and supports they need to come out prepared for successful re-entry.

  1. Direct budgetary savings from reducing prison populations to the expansion of programs for education, addiction and mental illness treatment, and job/workforce training, eliminating program waiting lists and making these programs available across all facilities. At the same time, expand opportunities for program participation to be counted toward “good time” and earlier parole eligibility.
  2. Curtail the use of solitary confinement, and require review of any solitary confinement longer than 15 days, the period beyond which the United Nations deems solitary confinement excessive and tortuous[35]>. Solitary confinement and its deep psychological impacts are known to contribute to high recidivism rates.

Give Victims and Ex-Offenders the Services and Support to Succeed.
It is critical that we invest in services that support the victims of crime. We also need to support the successful re-entry of incarcerated persons into society. According to the Council of State Governments’ report on Massachusetts, “Two-thirds of people leaving Houses of Correction (HOCs) and more than half of those leaving Department of Correction (DOC) facilities in 2011 were re-arraigned within three years of their release.” To reverse these trends and stop the cycle of incarceration, we will:

  1. Increase resources for victim service agencies and organizations to ensure that victims receive timely access to support services such as health care, shelter, transportation, and legal representation.
  2. Advocate for sentencing practices that allow more opportunities for post-release supervision.
  3. Increase resources for parole and probation officers, keeping caseloads to appropriate levels and providing training on recidivism reduction practices.
  4. Make it easier for individuals with criminal histories to find and keep a job:
  • CORI reform - reduce the time to seal records, and allow those with sealed records to state they have no record when applying for housing and employment.
  • Limit driver’s license suspensions to punishment for driving-related crimes.
  • Invest in job training and in employer incentives, similar to the federal work opportunity tax credit, to hire ex-offenders.

By taking a smart-on-crime approach, and reorienting our criminal justice system from punishment toward improved outcomes, we can make a significant difference in the safety of communities and our Commonwealth.

Sources

1. MassInc, “Getting Tough on Spending: An Examination of Correctional Expenditure in Massachusetts,” May 2017.
2. Council of State Governments Justice Center, Massachusetts Criminal Justice Review, Working Group Meeting 2 report. April 2016.
3. “States of Incarceration: The Global Context 2016,” Prison Policy Institute, June 2016.
4. Council of State Governments Justice Center, Massachusetts Criminal Justice Review, Working Group Meeting 2 report. April 2016.
5. http://www.mass.gov/eopss/agencies/doc/faqs-about-the-doc.html, accessed May 22, 2017.
6. MassInc, “Getting Tough on Spending: An Examination of Correctional Expenditure in Massachusetts,” May 2017.
7. “Crime, Cost and Consequences: Is It Time to Get Smart on Crime?” MassInc, March 2013.
8. Massachusetts Department of Corrections, Prison Population Trends 2015.
9. “The Geography of Incarceration,” The Boston Foundation / Boston Indicators Project, October 2016.
10. “Exploring the Potential for Pretrial Innovation in Massachusetts,” MassInc, September 2015.
11. Massachusetts Department of Corrections, Prison Population Trends 2013.
12. “Exploring the Potential for Pretrial Innovation in Massachusetts,” MassInc, September 2015.
13. CSG Working Group - Working Group Meeting 2, April 2016.
14. Mandatory Minimum Sentences, Active Population January 2, 2017, Massachusetts Dept. of Correction.
15. “Crime, Cost and Consequences: Is It Time to Get Smart on Crime?” MassInc, March 2013.
16. Ibid.
17. Massachusetts Sentencing Commission, Felony and Misdemeanor Master Crime List, December 2015.
18. “The Desperate and the Dead: Prisons: There may be no worse place for mentally ill people to receive treatment than prison,” Boston Globe, November 25, 2016.
19. National Association of Drug Court Professionals, http://www.nadcp.org/learn/facts-and-figures (accessed May 22, 2017).
20. MassInc, “Getting Tough on Spending: An Examination of Correctional Expenditure in Massachusetts,” May 2017.
21. CSG Working Group - Working Group Meeting 4 Interim Report, October 2016.
22. CSG Working Group - Working Group Meeting 2, April 2016.
23. “Crime, Cost and Consequences: Is It Time to Get Smart on Crime?” MassInc, March 2013.
24. CSG Working Group Meeting 3, Research Addendum, July 2016.
25. “Reducing Recidivism and Improving Other Outcomes for Young Adults in the Juvenile and Adult Criminal Justice Systems,” Council of State Governments Justice Center, November 2015.
26. “How Should Justice Policy Treat Young Offenders?” The MacArthur Foundation Research Network on Law and Neuroscience, February 2017.
27. CSG Working Group - Working Group Meeting 4 Interim Report, October 2016.
28. MassInc, “Getting Tough on Spending: An Examination of Correctional Expenditure in Massachusetts,” May 2017.
29. CSG Working Group Meeting 5, November 2016.
30. CSG Working Group - Working Group Meeting 4 Interim Report, October 2016.
31. “Punishing Poverty: the high cost of probation fees in Massachusetts,” Prison POlicy Initiative, December 2016.
32. “Fine Time Massachusetts: Judges, Poor People, and Debtors’ Prison in the 21st Century,” Commonwealth of Massachusetts, Senate Committee on Post Audit and Oversight, November 2016.
33. “The Color of Justice: Racial and Ethnic Disparity in State Prisons,” The Sentencing Project, June 2016.
34. The Juvenile Law Center ranks Massachusetts 40th in the nation in the protection of juvenile records. http://juvenilerecords.jlc.org/juvenilerecords/#!/category/expungement (accessed May 22, 2017).
35. “Torture and other cruel, inhuman or degrading treatment or punishment,” United Nations Secretary General, note to the UN General Assembly, August 2011.