THE SENATE IS poised to consider a wide-ranging criminal justice bill that would reform everything from the bail system to mandatory minimum sentences and fees and penalties that weigh heavily on low-income defendants.
The bill aims not only to reduce incarceration rates, but to eliminate various ways people get tripped up by a system that sometimes seems designed for them to fail, said Sen. William Brownsberger, the measure’s lead sponsor. “It’s about lifting people up, not locking people up,” he said of the bill. “And it’s about reducing entanglements with the criminal justice system.”
Legislative leaders and Gov. Charlie Baker have all lined up behind separate legislation that emerged in February from a year-long review of criminal justice policy. That measure, which is now forming the basis for a House bill, is aimed more narrowly at reducing recidivism by
increasing some programming in prisons and allowing more inmates to earn “good time” credits that shave time off their sentences.
Two-thirds of those leaving county houses of correction and more than half of those leaving the state prison system are arraigned on new criminal charges within three years, according to the Council of State Governments, which coordinated the policy review.
Brownsberger’s bill would go much further, enhancing the ability of courts to divert more cases from the criminal justice system to community programs so that younger offenders don’t enter the system. It also would repeal mandatory minimum drug sentences that are not tied to drug quantities, such as a law mandating minimum sentences for drug offenders arrested near a school. It would also eliminate the fees charged to indigent defendants for legal representation and eliminate the suspension of a defendant’s driver’s license for missing a court date.
Whether the widely divergent bills will lead to conflict between the two branches or serve as starting points for far-reaching compromise is now one of the big questions facing Beacon Hill this fall.
Massachusetts has the second lowest incarceration rate of any state, but the state’s prison population is four to five times larger than it was four decades ago. That level of incarceration extracts a particularly high toll in low-income neighborhoods, said Brownsberger, a Belmont Democrat and Senate chairman of the Joint Committee on the Judiciary.
“We want to avoid unnecessary incarceration, and avoid entry into the criminal justice system if at all possible,” said Brownsberger. “Criminal justice involvement breeds more criminal justice involvement. This bill seeks to address that challenge from front to back in the criminal justice system.”
An overriding goal, he said, should be to “separate people, as the saying goes, we’re mad at from the people we’re really afraid of, and make sure we’re doing as much as we can with the people we’re mad at to calm things down and resolve things outside of the prison context.”
Brownsberger said he believes low-level drug dealers, who often have drug problems themselves, should not be subject to mandatory minimum sentences. But the bill would stiffen some drug penalties. It adds fentanyl and other synthetic opioids into the mandatory minimum sentences now in place for trafficking in heroin.
“I don’t think there’s an appetite on the part of most elected officials to reduce enforcement directed at the opioid drugs that are killing thousands of people every year,” he said.
The bill would eliminate the fees charged to those on parole and fees charged to poor defendants for public defender services. It also would eliminate the suspension of a defendant’s driver’s license for missing a court date.
Brownsberger said he favors also eliminating monthly fees charged to those on probation, but left that out of the bill because it would mean forgoing about $20 million in annual revenue to the state.
“We have put so many rules in place that each individually made some sense, but we now have a structure that’s just impossible for people to extract themselves from unless they have a lot of money, which these people typically don’t,” Brownsberger said of those in the criminal justice system.
The bill would also touch on conditions in prisons, mandating regular review of cases of those put in solitary confinement and increasing programming for them. “There are people who spiral downward [in solitary confinement] and with treatment could be restored to trustworthiness in the general prison population,” said Brownsberger. “It’s in everybody’s interest to do this better.”
In August, the Supreme Judicial Court ruled unanimously that courts must set bail amounts that defendants can afford. The case was part of a major push nationally to reform bail practices, which advocates say unfairly burden poor defendants. The bill would set out new rules that codify the court ruling.
Holding defendants even for short periods simply because of an inability to pay a bail amount can have devastating ripple effects, said Brownsberger. “If you have life responsibilities, if you’ve got a child, if you’ve got a job, being totally cold out of circulation for a week has huge consequences,” he said.
At the same time, the bill would make it easier for prosecutors to seek dangerousness hearings where they can ask for high bail based on a defendant’s threat to public safety. Brownsberger said many judges currently set bail “based on their perception of dangerousness” outside of that hearing process.
The two bail reform measures together will “better protect the public and also better protect low-income defendants,” said Brownsberger.
Another provision in the bill addresses a problem Brownsberger said comes up when someone whose record was sealed in Massachusetts shows up in the federal fingerprint database. He said that can undermine job searches for those who believed their past record was now shielded from view. The bill would require that the federal fingerprint identification number be attached to state records so that when a case is sealed in Massachusetts the federal database is notified to seal it as well.
When the recidivism-focused bill was nearing completion last winter, advocates of broader reforms expressed fear that it would short-circuit consideration of more sweeping proposals. “Those doubts and concerns that that might be the beginning and end of what we’re doing should be dispelled,” said Brownsberger.
House Speaker Robert DeLeo told reporters on Monday that he’s eager to have the House take up the bill rolled out earlier this year, but he knows there are those in the House and Senate “and probably in the administration as well that wish to go further than that.”
“What will be the result of that? We’ll have to see,” DeLeo said.
Baker’s office was similarly circumspect when asked about the Senate bill. The administration “will carefully review legislation that reaches the governor’s desk,” Baker spokesman Billy Pitman said in a statement. Baker has often pointed to the low incarceration rate in Massachusetts compared to other states. The prison population has further declined by 1,300 since he took office.
One surprising voice of support for parts of the bill is Suffolk District Attorney Daniel Conley. Conley, who has strongly defended mandatory minimum sentences in the past, said in a statement that he would support eliminating mandatory minimum sentences for drug arrests in a school zone. He also said he was open to “rethinking” the mandatory sentence triggered by a second drug distribution charge for smaller quantities, a minimum mandatory sentence that the Senate bill would also repeal.
Conley also pointed to several “promising ideas” in the bill for bail reform and elimination of fines and fees on low-income defendants. He said there are “certainly some aspects of the bill I am concerned about,” but did not spell these out.
Conley’s stance is likely to affect the tenor of the debate over reform measures, even more so if it reflects a wider rethinking of mandatory minimum sentences among the state’s district attorneys, who have almost universally opposed eliminating them.
The bill was sent last week to the Senate Ways and Means Committee and will go from there to the full Senate. Brownsberger said he thinks there is strong support for the bill in the Senate, which generally leans more to the left than the House. How much of the bill’s broad reform agenda the House will embrace is unclear.
Brownsberger said he expects each branch to finish work on a bill and for a conference committee to then be appointed to try to reach agreement on a measure acceptable to both chambers. In the process, he said, both bills are likely to see amendments proposed that would make them “more liberal” and amendments to make them “more conservative.”
DeLeo said on Monday that he’d like to see a conference committee formed before Thanksgiving.
“I don’t think at the end of the day that these two bodies are that different in terms of their politics around these issues,” Brownsberger said. “So I’m pretty hopeful we’ll be able to get to a productive agreement at the end of the process. We have to have a high level of consensus, and come up with a bill that will ultimately be something the governor would be willing to put his name on.”