Collective Action for Humane, Healing, and Effective Criminal Justice Policy in Massachusetts

Vol III Issue 1 January 2006 563 Massachusetts Ave., Boston, MA 02118 www.cjpc.org / email:[email protected]

in this issue New Report Finds Public Welcomes Change Review of Commission’s Report on Sentencing and Convictions in Massachusetts Legislature Rejects Death Penalty Making the Case for Funding Drug Treatment With Funds Forfeited From Drug Offenders Making the Case For Parole Eligibility in Mandatory Minimum Sentencing Update: CORI Reform and Mandatory Minimum Sentencing Reform TEN RECOMMENDED BOOKS Dear Friends, As the Criminal Justice Policy Coalition enters its 10th anniversary year, we have the opportunity to make public policy changes that change people's lives -- but we need your help to do it. You can help us educate, empower and mobilize our community towards a more humane, just and effective criminal justice system in Massachusetts. We hope everyone reading this newsletter will join CJPC or renew their membership for 2006. Dues and contributions can be charged online here. (Membership forms are online also here, if you prefer to use regular mail.) Those of you who read our newsletter regularly are likely familiar with the policy analysis, community education, grassroots organizing, and legislative lobbying in which CJPC has engaged. New readers can learn about our past and ongoing concerns and activities on the web at www.cjpc.org. We are at a critical juncture in our development as well as in the development of criminal justice policy in Massachusetts. We are in a position to take CJPC to the next level and win victories on CORI reform and Mandatory Minimum Sentencing Reform. We also are faced with the challenge of educating, organizing and mobilizing for corrections reform after Scott Harshbarger's resignation from the Department of Correction Advisory Council. (See the Advisory Council’s final report here.) We need your help to continue and strengthen our efforts. If you’re in a position to do so, we hope you’ll make a financial contribution to support our work in 2006. We also hope you’ll contact us to find out about easy ways to contribute to the people power that CJPC is building to win real policy change in 2006! From making a two-minute call to a legislator to introducing us to like-minded individuals to research and writing – we can customize a means of involvement that is easy for you and makes a big difference! Contact Brandyn at 508-982-2247 or [email protected] to learn more. We welcome your input as we plan next our steps for corrections reform. Check for updates and action alerts on pending legislation at www.cjpc.or g/Update.htm. Regards, Kate Watkins, Newsletter Editor Brandyn Keating, Executive Director   Remember:      People Power Makes the Difference! New Report Finds Public Welcomes Change By Angela Antoniewicz The Boston Foundation (TBF), partnering with the Crime and Justice Institute (CJI) and Doble Research Associates, presented a 40-page report entitled Rethinking Justice in Massachusetts: Public Attitudes Toward Crime and Punishment at a November 3 forum. The publication showcases the results of a survey of Boston and Massachusetts residents’ views on punishment and rehabilitation policies and their support for evidence-based practices. The report can be found on both TBF and CRI’s websites. Two focus groups conducted in July 2004 in the Boston metropolitan area aided in shaping the questionnaire with their discussions of criminal justice policies in Massachusetts. The 65-question, 20-minute survey was given to 748 residents through telephone interviews using random digit dialing; 337 Boston residents and 411 statewide residents were interviewed, representing a 25.4% response rate. There were significant differences between the views of Boston and statewide residents, and between all Massachusetts residents and the United States as a whole, but the overall trend was for a change in criminal justice policies. The report gives findings regarding citizens’ attitudes toward mandatory minimums, substance abuse treatment, re-entry programs, and the step-down reintegration process. It found that the public wishes to see more policies aimed at prevention and rehabilitation rather than punishment and enforcement. Specifically, 64% prefer to focus on prevention or rehabilitation while 33% prefer to focus on punishment or enforcement efforts as the top priority for dealing with crime. With respect to sentencing, residents were less certain about whether to allow judges discretion on a case-by-case basis (47%) or through the use of guidelines (41%). However, they were decidedly against mandatory minimums, with only 9% believing it was the best of the three options. Research cited in the report has shown that providing the incentive of early release for changing an inmate’s behavior aids in reducing recidivism. However, changing one’s behavior is contingent upon access to appropriate treatment and re-entry programs. Seventy-eight percent of Massachusetts residents and 85% of Boston residents would consider early release for nonviolent offenders rather than having inmates serve their entire sentences. (However, they believe violent and sex offenders should serve their entire sentences.) Residents overwhelmingly favor treatment and re-entry programs because they believe them to be cost-effective and necessary to reduce recidivism. Sixty-four percent of residents, however, do not believe the state is doing enough in these areas. After being given the statistic that three-quarters of all inmates have a drug or alcohol problem, 81% of Massachusetts and 87% of Boston residents believe that it is very important to provide substance abuse treatment to prisoners. Despite the small number of inmates released under parole supervision (a reduction from 80% in 1980 to 33% in 2003) due to sentencing laws, respondents believe that a step-down reintegration process and graduated sanctions for technical violations while on parole are called for. Eighty percent of residents believe that a step-down process would be at least fairly effective in substantially reducing crime. If a parolee fails a drug test, in addition to mandatory drug treatment, only 17% of Massachusetts residents would prefer that the parolee be reincarcerated, while 81% would like a community sanction applied, such as closer supervision (30%), halfway house (21%), house arrest (20%), or a warning (11%). Overall, residents present a nuanced picture of what they think about crime and punishment policies and practices in Massachusetts, and generally trust that criminal justice professionals are doing the best they can with the resources they are given and the laws under which they must operate. Residents are willing to invest in evidence-based practices, but are still unaware of some of the arguments and data regarding the reality of the justice system, making some of the “soft” approaches to crime and recidivism difficult to swallow. For example, many respondents did not know that most (97%) of prisoners will be released, which could have an effect on whether they believe these approaches are cost-effective. In light of these results, the publication urges policymakers to shift their efforts away from the “tough on crime” tactic that is losing popularity and toward those approaches that have been shunned over the last two decades. Nearly 40% of the 20,000 offenders returning to their communities each year will re-offend within three years of release. For public safety and offender reintegration, prevention and rehabilitation approaches are necessary—and now welcome among the public. Review of Commission’s Report on Sentencing and Convictions in Massachusetts By Patrice Brymner The Massachusetts Sentencing Commission publishes a report each year cataloging sentencing practices throughout the state. The Survey of Sentencing Practices for fiscal year 2004, published in April 2005, evaluates current practices compared to what sentencing would be under the commission’s proposed, but not enacted, sentencing guidelines. The report includes, among other things, statewide statistics regarding offenses charged, conviction and incarceration rates, defendant characteristics, sentence length, and conviction statistics by district or superior court. The Sentencing Commission’s proposed guidelines, introduced in 1996, employ a sentencing “grid,” providing sentence ranges according to the seriousness of an offense and a defendant’s criminal history. Under the proposed grid system, sentences for some drug offenses, which carry mandatory minimums, can be reduced under certain circumstances. Other mandatory minimums, for drunk driving and firearms offenses, cannot be reduced. The proposed guidelines would also create parole eligibility at two-thirds a maximum sentence for state and county sentences. Several versions including a grid system have been proposed since then, but none has been enacted by the legislature.1 Many courts currently use the commission’s proposed sentencing grid on a voluntary basis. Most sentences surveyed for FY04, 88.5%, fell within proposed grid ranges. Of the 11.5% of sentences that fell outside the grid ranges, 3.5% were shorter than the grid guidelines, and 8% were longer. The following is a brief showing of some highlights from the report, focusing on conviction and incarceration rates, sentence length, defendant characteristics, offenses charged, and mandatory minimum sentences. The report covers much beyond what is discussed here, and readers are encouraged to view the entire 148-page report, and reports for previous years, at www.mass.gov/courts/admin/sentcomm.html. Conviction and Incarceration Rates In FY04, less than 40% of convictions resulted in incarceration. According to the commission’s report, about 56,286 defendants were convicted in Massachusetts, and about 36%, nearly 20,000 individuals, were sentenced to incarceration in either a state prison (DOC) or a county house of correction (HOC).2 Nearly all incarcerated defendants were sentenced to county facilities: 90.9%, or 17,644, were sentenced to HOCs (county facilities), and only 9.1% or about 1,716 were sentenced to the DOC. Nearly 37,000 were convicted, but not incarcerated; they were ordered to probation, fined, or given some other non-incarceration punishment. The report includes a breakdown of convictions by court department throughout the fourteen counties. The number of convictions in a given county ranged from only 71 in Nantucket County to 8,928 in Worcester County. Eight of the fourteen counties, Worcester, Suffolk, Middlesex, Essex, Hampden, Bristol, Plymouth, and Norfolk accounted for 88.8% of all convictions. Barnstable had 2,340 convictions for 4% of the statewide total; Berkshire: 1,639 for 3%; Bristol: 5,442 for 10%; Dukes: 128 for 0%; Essex: 6,292 for 11%; Franklin: 734 for 1%; Hampden: 5,577 for 10%; Hampshire: 1,405 for 2%; Middlesex: 7,709 for 14%; Nantucket: 71 for 0%; Norfolk: 3,632 for 6%; Plymouth: 4,016 for 7%; Suffolk: 8,373 for 15%; and Worcester: 8,928 for 17%. Sentence Length Under current law, judges have broad discretion when imposing minimum/maximum ratios for state prison sentences. A sentence can be for five to fifteen years, with the minimum sentence (five years) set at 33% of the maximum (fifteen years). A sentence ratio can also be five years to five years and one day, with the minimum sentence 99% of the maximum. This one-day difference in minimum/maximum sentence ratio is a common practice today, and precludes parole eligibility. This type of sentencing, employing a minimum/maximum range, is not available for county sentences. Under the commission’s proposed guidelines, a minimum sentence would always be set at two-thirds the maximum, and parole eligibility would always be set at the minimum sentence. Judges would no longer have the option of the one-day minimum/maximum difference. In FY04, most mandatory drug offenses carried the one-day difference in sentence ratio. Of the 429 state prison sentences for mandatory drug offenses, 252 (58.7%) of them were given a one-day difference. The rate was lower for other offenses: 448 of 1,149, or 39%, received a one-day difference in sentence. Overall, 44.4% of state prison sentences had a one-day difference, meaning that only 56.6% of defendants could be considered for parole release at the end of their minimum sentence. The median minimum DOC sentence was 41 months, and the median maximum DOC sentence was 60 months. Of those sentenced to the DOC, 43 defendants received life sentences. Sentences to HOCs do not have a minimum and maximum sentence and range from one day to thirty months (2½ years). For most HOC sentences of 60 days or more, parole eligibility is set at one-half the sentence length. Under the commission’s proposed guidelines, HOC sentences would have a minimum and maximum; the minimum would be set at two-thirds the maximum and would represent parole eligibility. The mean HOC sentence for FY04 was 6.8 months, and the median HOC sentence was 4.3 months. Just over half of the HOC sentences, 51.3%, were five months or less, and another 19.4% were between six and eight months. Defendant and Offense Characteristics For all persons convicted in FY04: 47,845 (85%) were men, and 8,441 (15%) were women The mean age was 32.7 years and ranged from 17 to 91 years The largest group by age was 20 to 24 years, with 11,982 convictions Most, 61.5%, were white; 17.6% were African-American; 16.9% were Latino; 2.3% were “other” races; and race was unknown for 1.8% Nearly all defendants, 90.1%, were born in the United States: 36,410 (64.7%) born in Massachusetts and 14,299 (25.4%) born in other U.S. states (mostly in the Northeast). In addition, 4,652 (8.2%) were born outside the U.S., and place of birth was unknown for 952 (1.7%) For all convictions in FY04: 11,944 (24.3%) were for property offenses 11,183 (22.8%) were for person offenses 10,674 (21.7%) were for motor vehicle offenses 8,936 (18.2%) were for drug offenses 5,771 (11.8%) were classified as “other” offenses, including weapons and public order, among other offenses 574 (1.2%) were for sex offenses Missing from the above percentages are another 6,308 convictions for OUI, or operating under the influence (drunk driving) offenses and 186 convictions for mandatory firearms offenses. Drug Offenses and Mandatory Minimum Sentences There were 8,936 defendants convicted of drug offenses. Not all drug offenses carry mandatory minimum sentences. In fact, only 766 convictions were for mandatory drug offenses. A little over half, 54.1%, of these convictions were for possession offenses, and 43.8% were for distribution offenses. Another 2.1% are listed as “other.” Of the 766 defendants convicted of mandatory drug offenses, about 43.9% (336) were sentenced to a HOC, and about 56.1% (430) went to the DOC. Most drug sentences were for one of four offenses: distribution within a school zone (298 convictions; two-year sentence), distribution of cocaine (158 convictions; one- to two-year sentence), trafficking cocaine - 14 to 28 grams (110 convictions; three-year sentence), and trafficking cocaine - 28 to 100 grams (70 convictions; five-year sentence). The longest sentence for a mandatory drug offense was 15 years for trafficking 200-plus grams of cocaine; 13 people received that sentence. By far, the most common mandatory drug sentence was for distribution within a school zone, with 298 convictions (38.9% of all mandatory drug convictions) sentenced to the two-year minimum. This figure includes only those convictions where the school zone violation was the “governing offense;” other school zone convictions, where another charged offense carried a greater sentence, are not included. Other Mandatory Minimum Sentences Drunk driving and firearms offenses also carry mandatory minimums, but are treated separately in the report. Under the commission’s proposed guidelines, these offenses would not be eligible for grid sentencing. In 2004, there were 6,308 convictions for OUI offenses, making this the most common conviction carrying a mandatory minimum sentence. Most sentences, 60% (3,782), resulted in probation, and 18.5% (1,159) resulted in fines. Only 19.9% of OUI convictions (1,2357) resulted in incarceration, with sentences ranging from less than one month to thirty months. Most of those sentences fell between two and fourteen months. All OUI incarceration sentences were to HOCs, although some women may serve their HOC sentences at a state prison. For more information about the Massachusetts Sentencing Commission, go to http://www.mass.gov/courts/admin/sentcomm/mscoverview.html ______________________________ 1 For more information on various proposed sentencing guidelines, the grid, see “Current Proposals for Sentencing Guidelines: Background and Basics” on the CJPC website. 2 This number excludes OUI and firearms offenses. Legislature Rejects Death Penalty By Patrice Brymner On November 15, 2005, the Massachusetts House of Representatives concluded four hours of debate over reviving capital punishment with a decisive “no” vote (99 – 53). Thus, Governor Mitt Romney’s self-proclaimed “gold standard” of death penalties was defeated and we were spared a backward slide on behalf of his political aspirations.1 As Romney positions himself for a possible presidential run, he appears to have attempted to co-opt our legislature to bolster his electability. Success was not necessary for Romney to benefit; he now has proof of his commitment to capital punishment for use on the national stage. Thankfully, the legislature’s swift action offered little stage time during the debate. Romney claimed we needed capital punishment to reduce crime. His self-dubbed “model for the nation” would have limited execution to cases of deadly terrorism, killing sprees, murders involving torture, and the killing of law enforcement authorities. Our criminal justice system, however, has survived nearly 60 years without a single execution. Over those decades, we have not tried many deadly terrorists, have not witnessed a rising number of spree killings, and have not prosecuted growing numbers of torturing murderers. Law enforcement personnel, who must be given the highest degree of protection possible, for their sake and the sake of public safety, have not become particular targets for murder.2 The governor claimed his plan was “fool proof” because it would have used tight legal standards and required advanced scientific proof. However, current and former prosecutors opposed the bill, citing the severe lack of scientific evidence in murder cases, the risk of flawed convictions, and a shortage of adequate counsel to defend capital cases in Massachusetts. Suffolk Sheriff Andrea Cabral (former Assistant District Attorney), Norfolk District Attorney Bill Keating, Middlesex District Attorney Martha Coakley, and Essex District Attorney Jonathan Blodgett all testified against the bill at a Statehouse hearing on July 15, 2005. Compelling arguments against capital punishment are widely understood and well documented. Capital punishment does not deter crime, is not cost-effective, does not provide closure to victims’ families3, is used disproportionately against racial minorities and the poor, and always risks wrongful conviction and execution. Beyond practical failures and obvious dangers, Romney’s bill would have reversed our evolution as a just and fair society. The trend in this country and across the world is decidedly away from execution. While the number of states with capital punishment remains high (38), execution rates are low or non-existent in most of those states. Since 2000, states and the federal government have performed 399 executions. The vast majority (359) were in only 10 states;4 Texas alone performed 156 executions. The remaining 40 executions were performed by 14 other states and the federal government.5 Massachusetts is among the seventeen states, in addition to the District of Columbia and the U.S. Military, that either do not have or do not use capital punishment. Twelve states, including Massachusetts and the District of Columbia do not have death penalties at all.6 Five other states and the U.S. Military officially have death penalties, but do not execute prisoners. After the U.S. Supreme Court reinstated capital punishment in 1976, Kansas, New Hampshire, New Jersey, New York, and South Dakota did not resume execution,7 nor has the U.S. Military. Globally, societies have evolved away from capital punishment for the last 100-plus years. Only a handful of countries are now responsible for the majority of the world’s executions: China, Iran, Saudi Arabia, and the U.S. Thankfully, Massachusetts will not contribute to that distinction for the sake of Romney’s political career. Perhaps the Commonwealth has learned from its own long history. After three hundred years of experience in capital punishment, the Commonwealth performed its last execution 1947, long before the Supreme Judicial Court ended execution legally in 1984.8 Continued legislative courage can render capital punishment obsolete as a political tool, and our politicians can then build healthier platforms for criminal justice. Links to several comprehensive death penalty websites are available at www.cjpc.org/dp_organizations.htm. ______________________________ 1 CJPC’s statement of guiding principles includes opposition to the death penalty. See http://www.cjpc.org/about_us.htm. Also see CJPC’s previous analysis of Romney’s bill and CJPC’s position against capital punishment as adopted May 23, 2003. 2 According to the FBI, between 1995 and 2004, three law enforcement officers were feloniously killed in Massachusetts. Officers killed during that 10-year period in the Northeast: Connecticut, 2 (death penalty); Maine, 0 (no death penalty); Massachusetts, 3 (no death penalty); New Hampshire, 3 (death penalty, but not in use); New Jersey, 9 (death penalty, but not in use); New York, 22 (death penalty, but not in use); Pennsylvania (death penalty), 14; Rhode Island, 0 (no death penalty); Vermont, 0 (no death penalty). Based on information from Law Enforcement Officers Killed or Assaulted, FBI, at www.fbi.gov/ucr/ucr.htm#leoka. 3 Research indicates that witnessing an execution can be extremely traumatic; this “secondary trauma” can affect victim’s families, prison officials, members of the media, and victim/witness assistants. For testimony regarding the secondary trauma of witnessing executions, see: www.njadp.org/forms/secondarytrauma.html. The Texas Department of Criminal Justice recognizes trauma to victim/witnesses and provides pre- and post-execution assistance. See www.tdcj.state.tx.us/victim/victim-viewexec.htm. For first-hand anecdotal accounts see Carroll Pickett with Carlton Stowers, Within these Walls: Memoirs of a Death House Chaplain (New York: St. Martin’s Press, 2002). 4 From 2000 to date in 2005, the following states have executed the following numbers of people: South Carolina, 10; Alabama, 15; Florida, 16; Georgia, 16; Ohio, 17; Virginia, 21; North Carolina, 23; Missouri, 25; Oklahoma, 60; and Texas, 156, based on information from the Death Penalty Information Center at www.deathpenaltyinfo.org. 5 Connecticut, 1; Maryland, 1; New Mexico, 1; Tennessee, 1; Washington, 1; Louisiana, 2; Mississippi, 2; Arizona, 3; Federal Government, 3; Nevada, 3; California, 4; Delaware, 4; Arkansas, 5; and Indiana, 9. Based on information from the Death Penalty Information Center at www.deathpenaltyinfo.org. 6 Alaska, Hawaii, Iowa, Maine, Massachusetts, Michigan, Minnesota, North Dakota, Rhode Island, Vermont, West Virginia, Wisconsin, and the District of Columbia. 7 Capital punishment in Kansas and New York was declared unconstitutional in 2004. 8 See http://www.deathpenaltyinfo.org/ESPYstate.pdf. Making the Case for Funding Drug Treatment With Funds Forfeited From Drug Offenders By Eric Blumenson We are proud that CJPC members represent a diverse cross section of activists, academics and people directly affected by the policies we work to improve. The following is testimony submitted to the Judiciary Committee by Eric Blumenson, a professor at Suffolk University Law School. Eric Blumenson and Eva Nilsen are co-authors of “Policing for Profit” 65 U. Chi. L. Rev. 35 (1998). I am a Professor of Law at Suffolk Law School. I am writing to urge you to support House Bill 1843, which would expand the Commonwealth’s Drug Treatment Program and provide for funding in part through funds forfeited from drug offenders. I believe strongly that passage of House 1843 is essential if we are to turn the war on drugs into an effective drug policy -- one with better prospects of curbing drug abuse, helping its victims recover, and removing the distortions in the law enforcement agenda that our present forfeiture law encourages. In this letter, however, I want to concentrate on one aspect of the bill: the redirection of 50% of forfeited assets from its current destination -- directly into law enforcement, with a large share going to the very police agency that seized it – into a drug treatment fund. For the past several years I have been studying the consequences of giving law enforcement the power to fund itself in whatever amount its agents can seize, and reported many of these findings in an article published in 1998 in the Univ. of Chicago Law Review.1 (I enclose a copy of that article should it be of interest.) My focus was primarily the federal law, but with respect to funneling seized assets back into the budgets of the police agency that seized them, our state law and the federal law are alike. Along with my co-author, I concluded that this arrangement poses real threats to effective crime control and evenhanded justice -- and also to core constitutional principles. The effect of this asset disposition arrangement is that small police forces that transfer their officers to drug law enforcement, and away from other pressing law enforcement needs, can enhance their annual budget by a factor of two or three times, or in the case of Little Compton, R.I., ten times thanks to a single operation. At the federal level, a 1993 Justice Department commissioned study heralded the prospect of “free” drug law enforcement, noting that “one 'big bust' can provide a [drug] task force with the resources to become financially independent. Once financially independent, a task force can choose to operate without Federal or state assistance." But law enforcement agencies that can finance themselves through asset seizures need not justify their activities through any regular budgetary process. The threat is the creation of self-financing law enforcement agencies, largely able to set their own agenda, and accountable to no one -- not a legitimate organ in a democracy. Such a prospect was an anathema to the framers, who warned that “the purse and the sword ought never to get into the same hands, whether legislative or executive," and therefore designed a government of separate branches which serve to check and balance each other. Whether forfeiture’s financial rewards will ultimately prove large enough to spawn the kind of permanent, independent sector of unaccountable law enforcement agencies that the Justice Dept. envisions is not yet clear. What is clear is that these rewards already have influenced the law enforcement agenda of agencies that have grown dependent on them. The risk, and according to our study increasingly the reality, is that the criminal justice system can be held hostage to the exigencies of law enforcement’s self-financing efforts, endangering the public welfare in at least two ways: First, burdening law enforcement with this conflict of interest can badly distort law enforcement policies. Economic temptation hovers over all drug enforcement decisions. Indeed, the Justice Department’s study suggests precisely this focus in urging that "task force members to know the major sources of these assets and whether it is more efficient to target major dealers or numerous smaller ones." . . . Worse, by linking police budgets to drug law enforcement, forfeiture laws induce police and prosecutors to neglect other, often more pressing crime problems. Second, forfeiture rewards directed exclusively to law enforcement threaten unjust treatment of our citizens. This is most obvious at the sentencing of drug offenders, where forfeiture laws provide an avenue for affluent defendants to buy their freedom. In eastern Massachusetts, Boston Globe reporters found that agreements to forfeit $10,000 or more bought elimination or reduction of trafficking charges in almost three-quarters of such cases. The Globe noted that 12% of the prosecutors’ budgets was financed through forfeiture income. Of course, this bill would not eliminate forfeiture of funds to the state. It would rather redirect them to drug treatment in a way that would eliminate the conflict of interest that distorts crime control agendas. It would return to this legislature the power to decide the size and shape of our law enforcement agencies, rather than abandoning that power to the agencies themselves. And it would safeguard the constitutional requirements found in the due process clause -- that prosecutorial agencies not be significantly burdens by an economic conflict of interest2 -- and in the separation of powers framework, which requires the legislature to appropriate funds to the executive, so that the legislature maintains oversight over the size and operations of executive agencies. As to these constitutional issues, I would like to enter the study published in the Chicago Law Review into the record. In this article we also demonstrate that some unsavory trends in criminal justice today -- the law enforcement agenda that targets assets rather than crime, the 80% of seizures that are unaccompanied by any criminal prosecution, the plea bargains which favor drug "kingpins" and penalize the "mules" without assets to trade, the overkill in agencies involved in even minor arrests, the massive shift towards federal jurisdiction over local law enforcement -- is largely the unplanned byproduct of this economic incentive structure. ______________________________ 1 “Policing for Profit,” 65 U. Chi. L. Rev. 35 (1998). 2 See Marshall v. Jerrico, 446 US 238 (1980). Making the Case For Parole Eligibility in Mandatory Minimum Sentencing The following is testimony in favor of S. 929, submitted by CJPC Executive Director Brandyn Keating at the Judiciary Committee Hearing held on November 22, 2005. S.929 is a bill that would allow an individual serving a mandatory minimum drug sentence to be paroled after two-thirds of the sentence is complete. CJPC extends its appreciation to Senator Cynthia Creem for filing this important legislation and to its individual and organizational members who are doing the necessary grassroots work to pass it. We need your help to pass this important legislation! To get involved, please contact Brandyn at 508-982-2247 or [email protected]. I am submitting this written testimony in favor of S. 929 on behalf of the Criminal Justice Policy Coalition. The Criminal Justice Policy Coalition (CJPC) is a member-based, non-profit organization dedicated to the advancement of effective, just, and humane criminal justice policy in Massachusetts. We are a state-wide organization with over twenty member organizations and over 300 additional individual members who work to educate and mobilize their communities around criminal justice issues. S. 929 is Smart on Crime Smart solutions to crime are fiscally responsible and make communities safer. The blind imposition of pre-determined sentences creates a counter-productive drain on tax payer dollars. Massachusetts spends $42,733.54 per year per individual to continue incarcerate individuals beyond the period of time commensurate with their offense. In contrast, residential drug treatment costs $880.40 per patient per year. Allowing individuals to be paroled after completing two thirds of a mandatory minimum sentence increases the incentive for, and availability of, productive pre-release programming, thereby increasing the likelihood that individuals will successfully re-integrate. This means safer communities, with productive citizens who would otherwise be continuing to drain the system behind bars. After several years of budget cuts to areas ranging from local aid to housing to public health, it is critical that the Commonwealth reduce unnecessary prison overcrowding and its attendant costs. S. 929 will create a financial savings for the Commonwealth of between $12 million and $15 million. S. 929 is Fair and Just Lawmakers believed that mandatory drug sentences would lock up drug kingpins and deter others from getting involved in the drug trade. Instead of drug kingpins, low-level couriers and addicts, girlfriends and non-violent offenders, some with no prior criminal record, are being sentenced to harsh and costly prison terms. S. 929 does not require that individuals be paroled after completing two thirds of a mandatory minimum sentence, it merely allows that they be paroled. This allows each case to be decided on its facts, re-introducing a level of fairness to the system that has been absent to the detriment of individuals and communities. Mandatory minimums disproportionately affect poor people and racial minorities who have less access to effective counsel. This is reflected by disparity between the racial composition of those convicted of all drug offenses versus those convicted of mandatory distribution offenses in 2004. In that year, 46.7% of defendants convicted of all drug offenses were white and 52.1% were racial and ethnic minorities. However, only 23.1% of defendants convicted of mandatory distribution offenses were white and 76.9% were racial/ethnic minorities. Our prison system is overpopulated with young, under-educated men, many of whom are drug-addicted. This is a population that, with appropriate treatment, has a high likelihood of contributing productively to their community. S. 929 opens up opportunities for earlier, more successful re-integration and mitigates the wasteful imprisonment of young people who can contribute meaningfully rather that drain the system. S. 929 is Responsible S. 929 comports with the original intent of mandatory minimum sentencing law by allowing sentences to be mitigated in appropriate circumstances. It is a small, but concrete and meaningful step towards more effective criminal justice policy that will not only save the Commonwealth money, but will help individuals prepare to return successfully to their communities. Individuals on parole are subject to oversight that is a meaningful part of the reintegration process, but costs the Commonwealth far less than incarceration (an average of $4000 per year) and provides a period of transition for drug offenders. For the reasons stated hearing, CJPC urges you to quickly and favorably report out S. 929 for consideration by the entire legislature. Update: CORI Reform and Mandatory Minimum Sentencing Reform Congratulations Criminal Justice Policy Coalition Members and Allies! YOU made a BIG difference . . . at the Judiciary Committee hearings on CORI (HB 2874) and Mandatory Minimum Sentencing Reform (S. 929)! The hearing room at the State House was packed with supporters of S 929 and HB 2874. Through a long, hot, cramped day, CJPC members and allies endured and demonstrated through their physical presence and compelling testimony that the Judiciary Committee must report these bills out quickly and favorably. Missed it? The hearing was on November 22, but the time to create a legislative victory is NOW. The fight has just begun. Read on to get involved! Next Steps: We've got to keep working to make sure that HB 2874 and S 929 are reported out quickly and favorably! If you haven't called your legislators yet, please do so right away. To find out who they are, go to www.wheredoivotema.com or call 617-722-2000. See our action alerts at www.cjpc.org! Ask your legislators to support these bills and to contact the Chairs of the Judiciary Committee to ask them to report HB 2874 and S 929 quickly and favorably. See talking points in our action alerts at www.cjpc.org! We need YOU as we lay the groundwork for victory when the entire legislature is able to consider the bills. To find out about how you can get involved, call Brandyn at 508-982-2247 or email her at [email protected]. CJPC is a member of the SMART on Crime Coalition and the Massachusetts Alliance to Reform CORI (MARC). TEN RECOMMENDED BOOKS There are many good books about prison and related issues, so the list below is by no means comprehensive. We have focused here on books with a Massachusetts connection, books that present an aspect of the issues that is less commonly discussed, and recently published books. The web links provide more details, including ordering information. Let us know if you have other favorites to recommend. Changing Lenses: A New Focus for Crime and Justice, by Howard Zehr (1990). Interested in thinking about alternatives to the criminal justice system as we know it? Zehr’s classic work is an ideal introduction to the concept of restorative justice and will lead the interested reader to other books on the subject. The Expanding Prison: The Crisis in Crime and Punishment and the Search for Alternatives, by David Cayley (1998). Cayley, who produces thoughtful and in-depth programs for the Canadian Broadcasting Company, offers a provocative analysis of the growth of prisons and a discussion of proven alternatives to imprisonment. Gone Boy: A Walkabout, by Gregory Gibson (2000). In 1992, 18-year-old Galen Gibson was murdered at Simon’s Rock College in Great Barrington, Mass. His father’s account of the murder and its aftermath includes his nuanced description of meeting with the parents of the young man convicted of the murder and then the tale of Gibson’s effort to arrange a meeting with the convicted murderer himself. A valuable look at Massachusetts prisons from a victim’s perspective. Hooked: Five Addicts Challenge Our Misguided Rehab System, by Lonny Shavelson (2001). Journalist Lonny Shavelson followed five addicts as they tried to navigate the maze of the drug treatment system. Of the many available books on drug addiction and drug policy, Shavelson’s is among the most thoughtful, useful, challenging, and realistic – and its conclusions may surprise you. Though the book is about the California treatment world, it’s of great value for Massachusetts readers too. In a Dark Time: A Prisoner’s Struggle for Healing and Change, by Dwight Harrison and Susannah Sheffer (2005). What does accountability really mean? This book is a richly evocative look at a prisoner’s struggle to understand his crimes and to create the tools for his own rehabilitation. Harrison was convicted of armed robbery and attempted murder and served almost 17 years in Massachusetts prisons, during which time the philosophy of prison underwent a dramatic shift from rehabilitative to punitive. Yet, as this story shows, Harrison found help in surprising places. Last Chance in Texas: The Redemption of Criminal Youth, by John Hubner (2005). A journalist’s report of a powerfully effective rehabilitation program for some of Texas’s most violent juvenile offenders. This is a searing and ultimately very moving look at the complexity of what rehabilitation requires. Last One Over the Wall: The Massachusetts Experiment in Closing Reform Schools, by Jerome Miller (1990). Not all progressive criminal justice activists today know the story of how Jerome Miller, serving as Commissioner of the Massachusetts Department of Youth Services in the 1970s, closed all the state reform schools returned the juvenile offenders to community-based programs. Miller’s second book, Search and Destroy: African Americans in the Criminal Justice System, is also critically important. Life on the Outside: The Prison Odyssey of Elaine Bartlett, by Jennifer Gonnerman (2004). Detailed and vivid account of the reality of a prisoner’s re-entry into society. Elaine Bartlett served 16 years in New York prisons for a first-time drug offense, and after leaving prison she encountered all the usual difficulties finding work and housing and re-connecting with her family. This book puts a human face on these all-too-common challenges and raises important questions about mandatory minimum sentences as well. Newjack: Guarding Sing Sing, by Ted Conover (2001). Conover spent a year as a guard at Sing Sing prison in New York and then wrote this account, which is useful for progressive criminal justice activists because it reminds us how dehumanizing prisons are for correctional officers as well as for prisoners. True Notebooks, by Mark Salzman (2003). Novelist Mark Salzman’s story of teaching writing to violent juvenile offenders facing life sentences in California. In addition to the compelling excerpts from the young people’s writing, what is interesting about this account is that Salzman was initially skeptical and reluctant to work with this group. His change in perspective parallels what others may experience as they learn more about offenders and imprisonment. Violence: Reflections on Our Deadliest Epidemic, by James Gilligan (1996). Dr. Gilligan was for many years the director of mental health for Massachusetts prisons, and his interviews with some of the most violent prisoners yielded crucial insights about what actually causes violent behavior. Based on this research, Gilligan implemented practices that dramatically reduced violence within Massachusetts prisons. Many of today’s practices run directly counter to what Gilligan advocated, but – maybe especially for this reason – his book remains essential reading. See also his second book, Preventing Violence. A World Apart: Women, Prison, and Life Behind Bars, by Christina Rathbone (2005). There are far fewer books about the experience of female prisoners than there are about the experience of male prisoners, and an added benefit for Massachusetts readers is that this book is about the women at MCI-Framingham, where journalist Rathbone was granted unprecedented access.