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Report out Massachusetts criminal justice reform recommendations

Proposals expected to turn into law, but many say they do not go far enough

Jule Pattison-Gordon

The Council of State Governments released its criminal justice reform recommendations report on Tuesday. The group’s work in Massachusetts has been a source of controversy because although it targets recidivism issues, it does not address methods for reducing racial disparities in the criminal justice system or initial instances of criminal justice system involvement.

State Rep. Russell Holmes told the Banner that these recommendations on recidivism will make an impact, but that more must be done to the need for reform.

“This is a huge step on one side of the issue,” Holmes said. “But we also need to look at how to address people getting into the system.”

The CSG’s proposals includes measures such as expanding access to pre- and post-release programming, along with enhancing incentives for participation, bolstering post-release supervision and streamlining the parole release process. During the report release announcement at the State House at Tuesday morning, House Speaker Robert DeLeo voiced a commitment to providing high quality post-release support such as job training and substance addiction programs and aid in securing housing.

Chief Justice Ralph Gants commented on the importance of anti-recidivism programs to ensure that the incarceration process actually makes people less dangerous.

“When you focus on recognition that everyone but those convicted of first degree murder is going to get out of jail at a point in time, and when you focus on them doing things we want them to do, such as get substance abuse help, get job training, get jobs and housing — it focuses you on a whole set of things,” Gants said.

The report recommendations are expected to be filed for implementation in one legislative package.

CSG study

Governor Charlie Baker’s administration invited the CSG to study the state’s criminal justice system and outlined what would be the group’s scope. Between 2016 and 2017, the group analyzed more than 13 million state records and conducted more than 300 in-person interviews. The Pew Charitable Trusts and the U.S. Department of Justice’s Bureau of Justice Assistance also provided support.

Another source of contention: the makeup of the 25-member working group. The team included only two people of color. It also largely comprised law enforcement representatives, said Rahsaan Hall, director of the Racial Justice Program at the ACLU of Massachusetts. While they are an important voice in the issue, they are far from the only important voice, he said.

Report’s gaps

For years, activists and legislators have sought changes, such as discontinuation of mandatory minimum sentencing for nonviolent drug offenses, and were asked to wait on legislation until the CSG had time to prepare a report. Now they are calling for action on their proposals to be paired with legislation on the CSG proposals.

Jobs Not Jails demonstrators turned out for the report release announcement. The protestors held mock-report cards assigning the report an “F” grade for neglecting to meet demands such as an end to mandatory minimum and youth criminalization. Speaking to reporters following the event, one protestor said the CSG failed to examine causes or present solutions to the criminal justice system’s disproportionate targeting of people of color and people with low incomes. Among the problems faced by those with limited finances: inability to retain expensive lawyers or to pay bail in order to be released pre-trial, causing missed days of work and lessened ability to prepare a strong court approach, she said.

Days prior to the event, criminal justice reform activist Calvin Feliciano expressed concerns that the CSG may recommend more robust probation terms and increased post-release supervision, which he regards as ineffective.

“They don’t just want you to do three years, they want you to do three years and mandatory supervision,” he said. “Probation is not helpful. Probation doesn’t help you get a job. It doesn’t help you change your attitude or get drug treatment.”

Feliciano said ex-offenders on probation can be re-arrested and end up serving longer terms if they commit minor offenses including talking to or associating with people how are felons or also on probation or if they are arrested, even for a minor offense unrelated to the charges for which they served time.

Many legislators have or intend to file bills this session that fill in gaps left out of the CSG report.

“This is a key moment that may not come again for many years,” Sen. Sonia Chang-Diaz said in a statement. “We must be courageous and rise to meet this moment not with a half-measure, but a full one that will drastically improve the lives of people across the Commonwealth.”

She called the criminal justice system deeply broken and said any solution must include sentencing reform.

Holmes said he asked Baker to include in his criminal justice reform package every measure that the governor agrees with, not solely those derived from CSG recommendations. It will be more difficult to get the measures passed should legislators have to go back to the bargaining table and negotiate each separate point, Holmes said.

Recidivism focus

In defense of the near-exclusive focus on recidivism, Baker said that Massachusetts’s criminal justice system is operating well in many areas: The state has the 18th highest crime rate in the U.S., but the second-lowest per capita incarceration rate, he said.

“This means, in many ways, our criminal justice system is working,” Baker argued. “By and large, people who are not supposed to be in the Massachusetts prison system are not. On the other hand, the problem we do have in Massachusetts is recidivism.”

Recidivism is the major driver of incarceration in the state, Baker said. He identified increasing access and incentives to participate in programming during and post incarceration as the most efficient way to address that issue.

Meanwhile, some say that given the fact that many people who enter the criminal justice system end up in a cycle of recidivism, focus also needs to be on how to prevent initial incarceration. This may include identifying where diversion can be an effective alternative, as well as eliminating some mandatory minimum sentences to provide judges with the freedom to use alternate methods when appropriate.

The ACLU’s Hall also cautioned against taking the state’s low incarceration rates, relative to the rest of the nation, as too strong an indicator of success.

“We [the U.S.] are doing so much worse than any other industrialized country,” he said.

Mandatory minimums

Rep. Holmes said that Baker told him that few people are incarcerated under the state’s mandatory minimum sentencing. Even so, Holmes says, such sentences still have a strong impact, as often someone will be encouraged to plead guilty to a lower sentence in order to avoid facing a mandatory minimum charge.

The CSG report did propose a policy revision to allow those held under mandatory minimums to immediately start earning time off their minimum sentence as a reward for enrollment in certain programs or activities.

Support for mandatory minimum reform for nonviolent offenses came as well from Sen. President Stan Rosenberg, who also spoke on the need to increase diversion options and tackle both incarceration and re-incarceration rates.

“Incarceration should be the last resort when there are other options available for people who have engaged in nonviolent activities that may come in conflict with the law, but are being driven either by their addiction or their mental illness,” Rosenberg said.

Visions of criminal justice system

Dialogue around the reforms also brings into focus varying philosophies on the purpose toward which the criminal justice system is designed.

On Tuesday, Baker said that incarceration is designed as a punishment but must ensure that those exiting it are able to function productively in society.

“Prison is and should be a punishment, but people in Massachusetts are better served when people exit the system as law abiding productive members of society,” Baker said.

Hall cautioned against that view, stating that those who become involved with the criminal justice system often do so as a result of damaging situations, be that abuse, trauma, issues in their family situation or struggles they face in their community.

“The people coming into the criminal justice system often times are people who are broken… and are coming into a system that is not there to restore them and make them whole,” Hall told the Banner.

There is hope that the focus is shifting.

“I think there is an acknowledgement that people come to the criminal justice system with a host of issues,” Hall said. “We’ll see what the actual legislation is.”