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Harshbarger Commentary
Report of the Governor’s Commission on Corrections Reform
A Digest and Commentary
by Peg Erlanger and Lloyd Fillion, September, 2004
On June 30, 2004, the Governor’s Commission on Corrections Reform (the Commission) issued its final report, Strengthening Public Safety, Increasing Accountability, and Instituting Fiscal Responsibility in the Department of Correction (the Report). The Commission was founded in October 2003, shortly after the well-publicized murder of John Geoghan - a former priest convicted of child sex abuse and incarcerated - because the special panel investigating that murder revealed the need for an extensive Department-wide review. The Commission was chaired by Scott Harshbarger, former Massachusetts Attorney General, and included 16 members. The Commission’s composition, charge, and process can be found, along with the full report, at http://www.mass.gov/eops/publications/gccr2004.pdf . This paper summarizes the key findings and addresses a few omissions.
The Commission’s recommendations “are aimed at reducing the likelihood that inmates who return to our communities will re-offend”.[i] (All Report page citations reference the printed version.) Within this context the Commission recognized the necessity of improving the environment within MA prisons, including better administrative oversight, more humane conditions, and improved services for the inmate population. The many recommendations in the Report regarding prison conditions are expected to be implemented by cost savings generated over time by reducing personnel costs in the system.
The Commission’s recommendations “are aimed at reducing the likelihood that inmates who return to our communities will re-offend”.[i] (All Report page citations reference the printed version.) Within this context the Commission recognized the necessity of improving the environment within MA prisons, including better administrative oversight, more humane conditions, and improved services for the inmate population. The many recommendations in the Report regarding prison conditions are expected to be implemented by cost savings generated over time by reducing personnel costs in the system.
The Commission’s Recommendations
(numbers correspond to the Report’s Executive Summary)
The Commission recommends that the Department of Correction (DOC)
Leadership and Accountability
1. revise its mission to include reducing the rate of re-offense by inmates released to the community;
2. adopt a performance management and accountability system to enhance agency performance, improve the culture, and utilize budget resources more effectively;
3. strengthen the management capacity through the collective bargaining process and revisions to the internal rank structure;
4. work with an external advisory board on corrections to monitor and oversee the DOC. The board should work cooperatively with the Commissioner to develop concrete goals for the future of the DOC;
Fiscal
5. take responsibility for bringing down staffing costs and reducing worker absenteeism;
6. make its budget more closely aligned with its mission and priorities. This will enhance public safety in a fiscally responsible manner;
Public Safety and Inmate Reentry
8. adopt a comprehensive reentry strategy including risk assessment, proven programs, “step-down,” and supervised release;
9. hold inmates more accountable for participation in productive activities designed to reduce the likelihood that they will re-offend.
Fair and Consistent Policies and Practices
14. ensure that policies and procedures, including those related to inmate classification, discipline, and grievances, are transparent, well-communicated, have specified appeals processes, and are implemented by appropriately selected, trained and supervised staff;
15. ensure that policies and procedures are properly implemented through oversight and accountability systems, including an independent investigation authority, data management, and unit management;
16. Conduct a system-wide facility review to ensure that its physical plant is consistant with the security needs of the staff and the inmate population, and the Department’s mission;
17. adequately protect and care for inmates in protective custody;
18.increase the linguistic diversity and cultural competence of its workforce.
The Commission Recommends that the Commonwealth
Public Safety and Inmate Reentry
7. view reducing the rate of re-offense by returning inmates as one of its highest public safety priorities;
10. with the DOC, revise sentencing laws and DOC policies that create barriers to appropriate classification, programming, and “step-down”;
11. establish a presumption that DOC inmates who are released are subject to ongoing monitoring and supervision;
12. provide for a dedicated external review of inmate health and mental health services;
13. institute a dedicated external review of issues pertaining to female offenders;
Leadership and Accountability
1. revise its mission to include reducing the rate of re-offense by inmates released to the community;
2. adopt a performance management and accountability system to enhance agency performance, improve the culture, and utilize budget resources more effectively;
3. strengthen the management capacity through the collective bargaining process and revisions to the internal rank structure;
4. work with an external advisory board on corrections to monitor and oversee the DOC. The board should work cooperatively with the Commissioner to develop concrete goals for the future of the DOC;
Fiscal
5. take responsibility for bringing down staffing costs and reducing worker absenteeism;
6. make its budget more closely aligned with its mission and priorities. This will enhance public safety in a fiscally responsible manner;
Public Safety and Inmate Reentry
8. adopt a comprehensive reentry strategy including risk assessment, proven programs, “step-down,” and supervised release;
9. hold inmates more accountable for participation in productive activities designed to reduce the likelihood that they will re-offend.
Fair and Consistent Policies and Practices
14. ensure that policies and procedures, including those related to inmate classification, discipline, and grievances, are transparent, well-communicated, have specified appeals processes, and are implemented by appropriately selected, trained and supervised staff;
15. ensure that policies and procedures are properly implemented through oversight and accountability systems, including an independent investigation authority, data management, and unit management;
16. Conduct a system-wide facility review to ensure that its physical plant is consistant with the security needs of the staff and the inmate population, and the Department’s mission;
17. adequately protect and care for inmates in protective custody;
18.increase the linguistic diversity and cultural competence of its workforce.
The Commission Recommends that the Commonwealth
Public Safety and Inmate Reentry
7. view reducing the rate of re-offense by returning inmates as one of its highest public safety priorities;
10. with the DOC, revise sentencing laws and DOC policies that create barriers to appropriate classification, programming, and “step-down”;
11. establish a presumption that DOC inmates who are released are subject to ongoing monitoring and supervision;
12. provide for a dedicated external review of inmate health and mental health services;
13. institute a dedicated external review of issues pertaining to female offenders;
In December 2003, in the midst of the Commission’s work, the governor installed a new Commissioner of Correction, Kathleen Dennehy. The Report acknowledges that Commissioner Dennehy is already addressing a number of their recommendations.
The recommendations come from an extensive set of “findings” which detail a sizeable number of critical deficiencies in the subject areas detailed above. Some of those findings are discussed below.
The recommendations come from an extensive set of “findings” which detail a sizeable number of critical deficiencies in the subject areas detailed above. Some of those findings are discussed below.
Findings
The first substantive chapter, Section II – Leadership and Accountability, focuses on the lack of leadership and accountability within management, determined to be “…insufficient to change agency culture.”[ii]
Most of the responsibility for practices now judged as failures is placed on the philosophy that directed the DOC throughout the 1990s. The former governor, coming to that post from the US Attorney’s office, adopted a “get tough” attitude, ensuring significant changes in the DOC culture. Many minimum-security prisons were closed and expensive maximum-security centers were built. “Statutory good time” was eliminated.[iii] The use of parole was sharply decreased. Mandatory minimum sentencing for many drug offenses was enacted. This “get tough” attitude pervaded the agency.
The DOC’s weak internal auditing and decision-making ceded to the correctional unions resulted in ineffective management at many levels. Management has little choice regarding staffing assignments, and the lack of data collection as well as access to data impedes management from making full assessments of the staff who apply for assignments they do control. At the lower level of supervision, current regulations provide that line officers are supervised by other officers who are members of the same union, creating a major conflict of interest for those immediate supervisors.
The Report found that external audits are insufficient to provide the feedback that the Commissioner of Correction needs. National accreditation reviews for the most part are an onsite paper review, not sufficient to promote accountability for actions or results. Therefore the Report recommends that an external standing review board comprised of experts, working with the DOC Commissioner and reporting to the Secretary of Public Safety, will be required to assure that the directions set by the Commission are effectuated, and that problems are identified before serious harm results from inattention.
The Report identified a number of flawed policies and practices within the DOC that were first described in the Geoghan Panel Report.[iv] Overclassification, abuse of disciplinary reports, the inmate grievance system and lack of adequate protection for those committed to protective custody units are cited as requiring substantive change. Additionally, the Report found the DOC to have inadequate tools for oversight and accountability within its internal investigative systems. As well, the lack of bilingual staff, especially regarding Spanish, results in bilingual inmates being required on occasion to act as translators for other inmates, placing the translating inmate in a position of potential risk for reprisals from either staff or other inmates.
Two sections of the Report are devoted to fiscal issues: Section III – Fiscal Management, and Section VI – Fiscal Considerations. Section VI points to internal DOC policies and practices as well as to state laws that unnecessarily make corrections extremely expensive. The Commission determined that staffing costs should be reducible. Massachusetts has the second highest ratio of employees to inmates in the nation (1:2), yet the DOC incurs substantial overtime. Some of this is the result of correctional officers (COs) using, on average, 52 paid days off per year, which the Commission found to be excessive. The Commission questioned the rate of industrial accident absence, with 250-300 (7.5%) of the force of 3,600 out at any time on worker’s compensation insured leave.[v] (Accidents are classified within three levels; those falling within the two more serious levels receive 100% tax-free compensation, thereby providing a disincentive to return to work.[vi]) The Report noted that lack of monitoring of these three factors prohibits the administration from addressing the substantive costs incurred by the state.
The Commonwealth imposes a heavy tax burden on itself through sentencing structures established by the legislature and imposed by the courts. Mandatory minimum sentencing accounts for required higher, more expensive classification levels and prohibits any reentry programming for those prisoners so sentenced. 16% of prisoners currently serving mandatory minimum sentences for drug offenses are among the 84% of prisoners ineligible for pre-release programming. Those convicted of murder, some sex offenses, and certain armed and unarmed robbery are also prohibited from minimum security classification levels.[vii] As the Report notes, “These restrictions drive much of the high classification in the Department and, consequently, drive up the overall costs to the Commonwealth”.[viii]
Staffing costs for the MA DOC are higher than the national average. Massachusetts Correctional Officer Federated Union (MCOFU) the largest union representing DOC employees, boasts on its website that its members are among the highest paid in the nation. The US Dept. of Labor recognizes MA correctional officers as the third highest paid in the nation, with the three levels of COs making, on average, between $61,000 and $75,000 annually, excluding benefits. Additionally, five full-time union employees are paid by the DOC to administer the MCOFU contract, at a cost of nearly half a million dollars. The Commission found a high number (18) of labor/management committees whose members are also paid out of the DOC budget.
Section IV – Public Safety and Inmate Reentry, the longest section, may be the most important as it focuses on issues at the core of the mission for the DOC. The agency’s mission statement, as of January 2004, stated that its goal is to “promote public safety by incarcerating offenders while providing opportunities for participation in effective programming designed to reduce recidivism.” The Commission urged the DOC to include certain revisions to its mission – reducing recidivism and “embrac(ing) the notion of ‘humane’ incarceration within its mission”.[ix]
Using statistics provided by the DOC, the Commission found that the Commonwealth is failing to take advantage of the period of incarceration (on average five years[x]) to provide opportunities and resources to prisoners. The Commission found that “Inmates generally come into the system with problems that make a successful transition back into society more difficult.”[xi] Assessments of those incarcerated show a drastic lack of education, poor physical health and job skills, and high rates of addiction and mental health problems. Yet the DOC has cut its academic teaching staff and vocational training in the past several years. The number of beds in addiction recovery programs has been reduced in part by the shutting down of minimum-security prisons and the use of volunteers has been curtailed. And programming is most limited in maximum security units while more prisoners are being housed in them.[xii] Mandatory minimum sentencing, lack of parole eligibility, work release restrictions, and statutory restrictions for certain crimes all prohibit large numbers of prisoners from transitional programming.[xiii] Finally, even for those few who are eligible, there is little post-release supervision and assistance provided because of the lack of connection/coordination of the DOC with the appropriate state and local entities, including the parole board, police departments, and community service agencies.
This section of the report also acknowledges two vital shortcomings of the work of the Commission: its failure to review the physical and mental health services for inmates and the failure to focus on issues pertaining exclusively to female offenders. The Commission therefore recommends a dedicated external review for both areas.[xiv]
The Commission’s research suggests that the DOC fails to provide inmates meaningful opportunities for rehabilitation either through jobs or programming, resulting in large amounts of unstructured and even wasted time for individual prisoners. This increases the likelihood that those who finish their sentences will re-offend and be convicted and imprisoned for another crime within a short time – a recidivism rate approaching 50% within 3 years after release.
“If inmates get used to spending their time engaged in productive activities such a work, education, volunteer service, substance abuse and or mental health treatment and release planning, then these habits will more easily translate into a productive, crime-free life in the community after release.”[xv]
Commentary
Taken as a whole, the Report validates the many criticisms that have accrued over the years from outside the department. The Report is careful not to assign blame to any one party, and holds all responsible for the corrective actions needed. There are extremely valuable suggestions which, even if only a few are adopted, will bring about positive changes in the DOC.
Perhaps the most important recommendation to come from the Commission is the call for an advisory board for the DOC as well as an independent Inspector General. Of some concern, the recommendation intimates that the board should function within the executive branch, with no specific recommendation that it report to, or include members of, either the legislature or the public, thereby failing to address the need for transparency of the department. It is likely that if the general public was aware of the substantive failings within the DOC and their impact on public safety and on the tax load carried by citizens, the executive branch would find greater interest in and support for the many changes that are needed.
Another critical recommendation, and one that is best addressed by the legislature, is addressing the role of mandatory minimums sentencing, as well as other statutory sentencing structures, in increasing the prison population and encouraging an over reliance on higher levels of security while hindering access to pre-release programming and step-down processes.[xvi] Indeed, overclassification is referenced in many sections of the Report for its failure to encourage rehabilitation while contributing to excessive costs for prisons, both in their initial construction costs and also to the ongoing heightened level of security required. These policies result in an increased tax burden on taxpayers while pushing upward the rate of recidivism.
The Commission urges changes to correct the lack of bilingual staff, and the creation of two independent external reviews of both the mental and physical health resources for inmates, and also of the special needs of female prisoners. Testimony to the Commission from members of the public suggests that these areas are likely in serious disrepair. And finally, as previously stated, the Commission encourages the DOC to add the concept of “humane” to its mission statement.
While the Report includes critical, long overdue changes within its group of recommendations, there is more to be said. Some questions remain unanswered and even unasked. What follows are several issues that either were not addressed completely, or not at all.
The lack of well defined goals regarding the department’s culture and what constitutes humane practices deprives the Commonwealth of articulated targets. This primary question goes to the core of the DOC function. Section I - Introduction, asserts a vision for the DOC based on a “foundation of enhancing public safety and maximizing cost efficiency”.[xvii] Section VII – Conclusion, repeats the ultimate goal as “enhancing public safety and fiscal responsibility”. [xviii] This foundation/set of goals for the DOC appears to be predicated upon the needs of the larger community – saving taxes and making communities less violent places, and reshaping offenders to accomplish those goals. The Report suggests leavening these already existing goals with approaches that are “humane,” but spends little time describing what that means, while most of the report is devoted to the fiscal issues and public safety functions at an agency or community level.
The current prison culture is nowhere specifically defined, nor is the culture towards which the DOC should move. While the report considers changing the agency culture as essential,[xix] what constitutes the current culture is nowhere clearly defined. The report does suggest that culture and values are distinct and are defined by the management.[xx] Without further definition, the Report leaves the impression that “culture” refers only to the balance of power between management and labor. Most citizens are likely to think of the DOC’s culture as the relationship of staff to prisoner. However, other than a reference to inmate idleness[xxi] and informal decision-making within classification,[xxii] apparently no substantive testimony was received or research done to determine whether the current culture among administration, staff, and prisoners is marked by personal dignity or by community unease, respect or fear, cooperation or distrust. (To date, the comments resulting from the four distinct prisoner focus groups have not been made available; nor were the contents of the correspondence from prisoners, or the survey results of the correctional officers.) Some desirable values are suggested: consistency and accountability,[xxiii] professionalism,[xxiv], and transparent operational systems of classification, discipline, and grievance processes.[xxv] Nevertheless, without an optimal culture clearly defined together with enunciated values, it is difficult to measure positive movement within fundamental attitudes.
One major concern, the violence of physical abuse of prisoners either by other prisoners or by DOC staff is nowhere addressed. One extreme example of abuse - the murder of an inmate - is what created the widespread recognition of a need for a top to bottom investigation. Yet except for identifying the lack of protection of inmates from each other when in protective custody, nowhere within the report is there even acknowledgement that this issue warrants consideration. To the extent that such abuse, physical or mental, is inflicted without consequences, it seriously undermines the ability of the commonwealth to foster the rehabilitation of inmates.
The rehabilitation of offenders might have been listed as the primary goal or foundation; the report then might have addressed a number of concerns which are absent, and even demonstrated that the two goals of fiscal responsibility and enhancing public safety would thereby be achieved. The change in sequence, while seemingly insignificant, could have substantively contributed to another goal urged by the Report – changing a culture which has been “…overwhelmingly influenced by two primary values: incapacitation and punishment”.[xxvi]
If positive or healthy human growth is to be one of the primary tasks, placing rehabilitation at the forefront might make it easier for staff, administration, and inmates to understand the values of a new culture, and thereby likely easier to reach. Looking through the lens of “humane” treatment gives a different vision than through the lens of “fiscal responsibility” and/or “public safety.” A different vision might have given a different shape to the Report, perhaps arriving at many of the same conclusions, while helping give better direction and support for the change in culture.
Put another way, the Report focuses on the end goals of fiscal responsibility and public safety, and shaping the means - inmate training - to achieve those ends. Most often, ends are unpredictable while the means are the only aspects within our control. If people are taught to control violent behavior as a means to gain employment, and jobs don’t materialize, will suppressing violent behavior then be understood to be irrelevant to gainful employment? Shouldn’t inmates learn to think of their mental and spiritual health as an end in itself, rather than as means to certain ends, which ends may be elusive for some time?
The Report’s recommendation to “change the culture” of the DOC follows the advice of the Geoghan Administrative Investigation Report, released in February, 2004. The major administrative breakdowns that contributed to the circumstances responsible for 95%[xxvii] of Geoghan’s death included: breakdown in the classification system of inmates, disciplinary report abuses by correctional officers, and employee misconduct. That report was referred to as “hard-hitting and point[ing] out the systemic and cultural problems within the [DOC]”[xxviii]; however, that investigation failed to examine the motivations for these systemic failures and what changes in climate would be needed to remedy these problems. Unfortunately the current Report follows this lack of concern for the causes of failed systems by stating as one of its major findings that “[m]any of the Department’s current policies, procedures and practices are not fair and consistent, including those related to inmate classification, discipline and grievances”.[xxix] However, it fails to expand upon this finding, relying on the Geoghan Report and the Department’s own Strategic Planning Guide of February, 2004. Without an examination of staff morale, obtaining a culture marked by fairness and consistency may be much more difficult if reasonable working conditions issues, possibly including respect for the dignity of staff, are not addressed.
No section dealt with correctional officers’ concerns. The Commission held that some of the recommended changes would improve working conditions. However, the only polling of officers mentioned in the text regarded views on whether jobs and programs for inmates made their work easier or harder.[xxx] The one survey of the entire staff at six facilities yielded only 69 responses,[xxxi] and the survey’s content is nowhere discussed. Unfortunately the reader cannot know whether the views of correctional officers and other staff were solicited, and if so, addressed. A report meant to review the condition of this agency should not ignore these quality of life concerns for staff, management, or prisoners. Particularly with regard to job satisfaction and quality of the environment, management might find addressing existing issues a means toward a more reasonable fiscal condition.
The Geoghan Administrative Investigation Report found that often correctional officers are able to swap shifts so that the forty hour work week is met by two consecutive days of double shifts, followed by third day with one shift.[xxxii] A number of studies have found that 16 hour shifts increase error and decrease alertness for those who are subject to such long hours.[xxxiii] The correctional officers union asserts that its members are “assigned to undoubtedly the toughest beat in the commonwealth”.[xxxiv] Yet the Commission did not examine this work arrangement for its impact on safety within the prisons, nor suggest that the finding of the Geoghan Panel warranted further examination. While a renegotiation with the appropriate unions of this unsound practice may be difficult, that does not mean that the practice should be ignored.
While the Report recognizes the need for a focused review on medical and mental health services provided prisoners, there is no specific mention of the conditions of treatment for those held within civil commitment for indefinite periods of time. Civil commitment is not intended to be merely an extension of incarceration under a different name, but a period during which the state offers treatment to sex offenders. Reports in the files of the CJPC suggest that in practice, civil commitment is woefully inadequate in providing intentional treatment, and that conditions are in some instances worse than those experienced in the prisons from which those civilly committed come. Examination of the Treatment Center for Sex Offenders should be included within the dedicated review of health services.
The Commission appears to have been charged to examine the DOC without examining the ancillary government and private agencies which closely interact with and even impact the DOC. The charge from the Governor to the Commission, a “top to bottom review of the Department of Correction…”[xxxv] appears not to have included the Parole and probation agencies. It is difficult to imagine the re-entry needs of prisoners without understanding the culture of those two agencies. It becomes difficult for the DOC to meet the goal of public safety if its most critical partners are not working in concert with the department. The Parole Board and Probation Office were also changed by the failed policies of the Weld administration of the 1990s. Failing to address critical changes in those agencies will surely hinder the success of any DOC reentry pre-release programs. As an example, it would be useful to know whether parole and/or probation officers see their primary duty to be that of entrapping their clientele in prohibited activities so they may be re-incarcerated, or helping solve the many problems attendant upon release. At the least, the Report could have asserted that a thorough review of Parole and Probation is urgently needed, including their mission and the training for personnel, just as the report singled out the medical and mental health services within the DOC as due for review.
Fundamental to reentry is the need of assuring room/board and resources for released prisoners. In Section IV – Public Safety and Inmate Reentry, the Report suggests that much research on current problems of reentry has been done and available to the public, obviating any need to “reinvent the wheel”.[xxxvi] The Report cites five different recent reports dealing with reentry. A review of three of those five published reports[xxxvii] suggests that these three fail to look at the issue through the eyes of the clients, which focus on the details, but rather through the eyes of the government and/or society, which deals more with broad concepts than the minutiae of daily living. For instance, these reports do not address the hopelessness that accompanies release from prison with a ticket to Boston and $10 in the pocket. This hopelessness is particularly present in former prisoners without family or community support.
Much is made of the need for the DOC to partner with community agencies, which agencies were also changed in the 1990s by decreased government funding. Such partnerships should be based on the DOC preparing prisoners for release with appropriate resources. For instance, there are an increasing number of legislative attempts to extract payment from prisoners for in-prison services – exorbitant phone costs, charges for medical services, even canteen prices – that reflect the outside economy while the value of inmate labor is orders of magnitude less. If the small savings prisoners can accrue through occasional prison work can be used up during a prisoner’s period of incarceration, with what cash reserve can s/he reenter the world? How will an inmate come by a first and last month’s rent and security deposit for an apartment? Again, missing in this discussion is the view from the individual, which, if a former prisoner had been appointed to the Commission, would likely have more present in the discussion and recommendations.
Depending on private agencies to solve housing and employment problems and even obtaining a driver’s license, frequently means depending on a sole individual employed by that private agency.[xxxviii] What appears on paper as a successful reentry program for countless prisoners is in reality a small set of independent private sector individuals; anecdotal testimony from numbers of persons who have been released speak to the inadequacy of this network. This is not a dependable system upon which the state can, or should, base pre-release programming; it is not a system to be counted on to reduce recidivism. The Report should have recommended urgent attention to this “ancillary” problem as critical to a successful DOC reentry program.
In closing, it may be that a number of the deficiencies of the Report derive from the select experiences of members of the Commission. Had the composition of the Commission had representatives from the behavioral sciences, service providers, and possibly even a former prisoner, perhaps these issues would not have been overlooked. It remains to be seen whether an advisory board, recommended by the Report, will be constructed to include more diverse backgrounds than did the Commission represent.
The Report begins with a quotation from Edward A. Flynn, current Secretary of the Executive Office of Public Safety:
“If nothing else, inmates must leave our custody with a belief that there is moral order in their world. If they leave our care and control believing that rules and regulations do not mean what they say they mean, that rules and regulations can be applied arbitrarily or capriciously or for personal interest, then we will fail society, we will fail them, and we will unleash people more dangerous than when they went in.”[xxxix]
To which it should be added that, as the Commonwealth fails to provide the resources to allow for the rehabilitation of prisoners, mentally, physically and spiritually, we will also fail in our efforts to make the Commonwealth a safer environment for all.
Most of the responsibility for practices now judged as failures is placed on the philosophy that directed the DOC throughout the 1990s. The former governor, coming to that post from the US Attorney’s office, adopted a “get tough” attitude, ensuring significant changes in the DOC culture. Many minimum-security prisons were closed and expensive maximum-security centers were built. “Statutory good time” was eliminated.[iii] The use of parole was sharply decreased. Mandatory minimum sentencing for many drug offenses was enacted. This “get tough” attitude pervaded the agency.
The DOC’s weak internal auditing and decision-making ceded to the correctional unions resulted in ineffective management at many levels. Management has little choice regarding staffing assignments, and the lack of data collection as well as access to data impedes management from making full assessments of the staff who apply for assignments they do control. At the lower level of supervision, current regulations provide that line officers are supervised by other officers who are members of the same union, creating a major conflict of interest for those immediate supervisors.
The Report found that external audits are insufficient to provide the feedback that the Commissioner of Correction needs. National accreditation reviews for the most part are an onsite paper review, not sufficient to promote accountability for actions or results. Therefore the Report recommends that an external standing review board comprised of experts, working with the DOC Commissioner and reporting to the Secretary of Public Safety, will be required to assure that the directions set by the Commission are effectuated, and that problems are identified before serious harm results from inattention.
The Report identified a number of flawed policies and practices within the DOC that were first described in the Geoghan Panel Report.[iv] Overclassification, abuse of disciplinary reports, the inmate grievance system and lack of adequate protection for those committed to protective custody units are cited as requiring substantive change. Additionally, the Report found the DOC to have inadequate tools for oversight and accountability within its internal investigative systems. As well, the lack of bilingual staff, especially regarding Spanish, results in bilingual inmates being required on occasion to act as translators for other inmates, placing the translating inmate in a position of potential risk for reprisals from either staff or other inmates.
Two sections of the Report are devoted to fiscal issues: Section III – Fiscal Management, and Section VI – Fiscal Considerations. Section VI points to internal DOC policies and practices as well as to state laws that unnecessarily make corrections extremely expensive. The Commission determined that staffing costs should be reducible. Massachusetts has the second highest ratio of employees to inmates in the nation (1:2), yet the DOC incurs substantial overtime. Some of this is the result of correctional officers (COs) using, on average, 52 paid days off per year, which the Commission found to be excessive. The Commission questioned the rate of industrial accident absence, with 250-300 (7.5%) of the force of 3,600 out at any time on worker’s compensation insured leave.[v] (Accidents are classified within three levels; those falling within the two more serious levels receive 100% tax-free compensation, thereby providing a disincentive to return to work.[vi]) The Report noted that lack of monitoring of these three factors prohibits the administration from addressing the substantive costs incurred by the state.
The Commonwealth imposes a heavy tax burden on itself through sentencing structures established by the legislature and imposed by the courts. Mandatory minimum sentencing accounts for required higher, more expensive classification levels and prohibits any reentry programming for those prisoners so sentenced. 16% of prisoners currently serving mandatory minimum sentences for drug offenses are among the 84% of prisoners ineligible for pre-release programming. Those convicted of murder, some sex offenses, and certain armed and unarmed robbery are also prohibited from minimum security classification levels.[vii] As the Report notes, “These restrictions drive much of the high classification in the Department and, consequently, drive up the overall costs to the Commonwealth”.[viii]
Staffing costs for the MA DOC are higher than the national average. Massachusetts Correctional Officer Federated Union (MCOFU) the largest union representing DOC employees, boasts on its website that its members are among the highest paid in the nation. The US Dept. of Labor recognizes MA correctional officers as the third highest paid in the nation, with the three levels of COs making, on average, between $61,000 and $75,000 annually, excluding benefits. Additionally, five full-time union employees are paid by the DOC to administer the MCOFU contract, at a cost of nearly half a million dollars. The Commission found a high number (18) of labor/management committees whose members are also paid out of the DOC budget.
Section IV – Public Safety and Inmate Reentry, the longest section, may be the most important as it focuses on issues at the core of the mission for the DOC. The agency’s mission statement, as of January 2004, stated that its goal is to “promote public safety by incarcerating offenders while providing opportunities for participation in effective programming designed to reduce recidivism.” The Commission urged the DOC to include certain revisions to its mission – reducing recidivism and “embrac(ing) the notion of ‘humane’ incarceration within its mission”.[ix]
Using statistics provided by the DOC, the Commission found that the Commonwealth is failing to take advantage of the period of incarceration (on average five years[x]) to provide opportunities and resources to prisoners. The Commission found that “Inmates generally come into the system with problems that make a successful transition back into society more difficult.”[xi] Assessments of those incarcerated show a drastic lack of education, poor physical health and job skills, and high rates of addiction and mental health problems. Yet the DOC has cut its academic teaching staff and vocational training in the past several years. The number of beds in addiction recovery programs has been reduced in part by the shutting down of minimum-security prisons and the use of volunteers has been curtailed. And programming is most limited in maximum security units while more prisoners are being housed in them.[xii] Mandatory minimum sentencing, lack of parole eligibility, work release restrictions, and statutory restrictions for certain crimes all prohibit large numbers of prisoners from transitional programming.[xiii] Finally, even for those few who are eligible, there is little post-release supervision and assistance provided because of the lack of connection/coordination of the DOC with the appropriate state and local entities, including the parole board, police departments, and community service agencies.
This section of the report also acknowledges two vital shortcomings of the work of the Commission: its failure to review the physical and mental health services for inmates and the failure to focus on issues pertaining exclusively to female offenders. The Commission therefore recommends a dedicated external review for both areas.[xiv]
The Commission’s research suggests that the DOC fails to provide inmates meaningful opportunities for rehabilitation either through jobs or programming, resulting in large amounts of unstructured and even wasted time for individual prisoners. This increases the likelihood that those who finish their sentences will re-offend and be convicted and imprisoned for another crime within a short time – a recidivism rate approaching 50% within 3 years after release.
“If inmates get used to spending their time engaged in productive activities such a work, education, volunteer service, substance abuse and or mental health treatment and release planning, then these habits will more easily translate into a productive, crime-free life in the community after release.”[xv]
Commentary
Taken as a whole, the Report validates the many criticisms that have accrued over the years from outside the department. The Report is careful not to assign blame to any one party, and holds all responsible for the corrective actions needed. There are extremely valuable suggestions which, even if only a few are adopted, will bring about positive changes in the DOC.
Perhaps the most important recommendation to come from the Commission is the call for an advisory board for the DOC as well as an independent Inspector General. Of some concern, the recommendation intimates that the board should function within the executive branch, with no specific recommendation that it report to, or include members of, either the legislature or the public, thereby failing to address the need for transparency of the department. It is likely that if the general public was aware of the substantive failings within the DOC and their impact on public safety and on the tax load carried by citizens, the executive branch would find greater interest in and support for the many changes that are needed.
Another critical recommendation, and one that is best addressed by the legislature, is addressing the role of mandatory minimums sentencing, as well as other statutory sentencing structures, in increasing the prison population and encouraging an over reliance on higher levels of security while hindering access to pre-release programming and step-down processes.[xvi] Indeed, overclassification is referenced in many sections of the Report for its failure to encourage rehabilitation while contributing to excessive costs for prisons, both in their initial construction costs and also to the ongoing heightened level of security required. These policies result in an increased tax burden on taxpayers while pushing upward the rate of recidivism.
The Commission urges changes to correct the lack of bilingual staff, and the creation of two independent external reviews of both the mental and physical health resources for inmates, and also of the special needs of female prisoners. Testimony to the Commission from members of the public suggests that these areas are likely in serious disrepair. And finally, as previously stated, the Commission encourages the DOC to add the concept of “humane” to its mission statement.
While the Report includes critical, long overdue changes within its group of recommendations, there is more to be said. Some questions remain unanswered and even unasked. What follows are several issues that either were not addressed completely, or not at all.
The lack of well defined goals regarding the department’s culture and what constitutes humane practices deprives the Commonwealth of articulated targets. This primary question goes to the core of the DOC function. Section I - Introduction, asserts a vision for the DOC based on a “foundation of enhancing public safety and maximizing cost efficiency”.[xvii] Section VII – Conclusion, repeats the ultimate goal as “enhancing public safety and fiscal responsibility”. [xviii] This foundation/set of goals for the DOC appears to be predicated upon the needs of the larger community – saving taxes and making communities less violent places, and reshaping offenders to accomplish those goals. The Report suggests leavening these already existing goals with approaches that are “humane,” but spends little time describing what that means, while most of the report is devoted to the fiscal issues and public safety functions at an agency or community level.
The current prison culture is nowhere specifically defined, nor is the culture towards which the DOC should move. While the report considers changing the agency culture as essential,[xix] what constitutes the current culture is nowhere clearly defined. The report does suggest that culture and values are distinct and are defined by the management.[xx] Without further definition, the Report leaves the impression that “culture” refers only to the balance of power between management and labor. Most citizens are likely to think of the DOC’s culture as the relationship of staff to prisoner. However, other than a reference to inmate idleness[xxi] and informal decision-making within classification,[xxii] apparently no substantive testimony was received or research done to determine whether the current culture among administration, staff, and prisoners is marked by personal dignity or by community unease, respect or fear, cooperation or distrust. (To date, the comments resulting from the four distinct prisoner focus groups have not been made available; nor were the contents of the correspondence from prisoners, or the survey results of the correctional officers.) Some desirable values are suggested: consistency and accountability,[xxiii] professionalism,[xxiv], and transparent operational systems of classification, discipline, and grievance processes.[xxv] Nevertheless, without an optimal culture clearly defined together with enunciated values, it is difficult to measure positive movement within fundamental attitudes.
One major concern, the violence of physical abuse of prisoners either by other prisoners or by DOC staff is nowhere addressed. One extreme example of abuse - the murder of an inmate - is what created the widespread recognition of a need for a top to bottom investigation. Yet except for identifying the lack of protection of inmates from each other when in protective custody, nowhere within the report is there even acknowledgement that this issue warrants consideration. To the extent that such abuse, physical or mental, is inflicted without consequences, it seriously undermines the ability of the commonwealth to foster the rehabilitation of inmates.
The rehabilitation of offenders might have been listed as the primary goal or foundation; the report then might have addressed a number of concerns which are absent, and even demonstrated that the two goals of fiscal responsibility and enhancing public safety would thereby be achieved. The change in sequence, while seemingly insignificant, could have substantively contributed to another goal urged by the Report – changing a culture which has been “…overwhelmingly influenced by two primary values: incapacitation and punishment”.[xxvi]
If positive or healthy human growth is to be one of the primary tasks, placing rehabilitation at the forefront might make it easier for staff, administration, and inmates to understand the values of a new culture, and thereby likely easier to reach. Looking through the lens of “humane” treatment gives a different vision than through the lens of “fiscal responsibility” and/or “public safety.” A different vision might have given a different shape to the Report, perhaps arriving at many of the same conclusions, while helping give better direction and support for the change in culture.
Put another way, the Report focuses on the end goals of fiscal responsibility and public safety, and shaping the means - inmate training - to achieve those ends. Most often, ends are unpredictable while the means are the only aspects within our control. If people are taught to control violent behavior as a means to gain employment, and jobs don’t materialize, will suppressing violent behavior then be understood to be irrelevant to gainful employment? Shouldn’t inmates learn to think of their mental and spiritual health as an end in itself, rather than as means to certain ends, which ends may be elusive for some time?
The Report’s recommendation to “change the culture” of the DOC follows the advice of the Geoghan Administrative Investigation Report, released in February, 2004. The major administrative breakdowns that contributed to the circumstances responsible for 95%[xxvii] of Geoghan’s death included: breakdown in the classification system of inmates, disciplinary report abuses by correctional officers, and employee misconduct. That report was referred to as “hard-hitting and point[ing] out the systemic and cultural problems within the [DOC]”[xxviii]; however, that investigation failed to examine the motivations for these systemic failures and what changes in climate would be needed to remedy these problems. Unfortunately the current Report follows this lack of concern for the causes of failed systems by stating as one of its major findings that “[m]any of the Department’s current policies, procedures and practices are not fair and consistent, including those related to inmate classification, discipline and grievances”.[xxix] However, it fails to expand upon this finding, relying on the Geoghan Report and the Department’s own Strategic Planning Guide of February, 2004. Without an examination of staff morale, obtaining a culture marked by fairness and consistency may be much more difficult if reasonable working conditions issues, possibly including respect for the dignity of staff, are not addressed.
No section dealt with correctional officers’ concerns. The Commission held that some of the recommended changes would improve working conditions. However, the only polling of officers mentioned in the text regarded views on whether jobs and programs for inmates made their work easier or harder.[xxx] The one survey of the entire staff at six facilities yielded only 69 responses,[xxxi] and the survey’s content is nowhere discussed. Unfortunately the reader cannot know whether the views of correctional officers and other staff were solicited, and if so, addressed. A report meant to review the condition of this agency should not ignore these quality of life concerns for staff, management, or prisoners. Particularly with regard to job satisfaction and quality of the environment, management might find addressing existing issues a means toward a more reasonable fiscal condition.
The Geoghan Administrative Investigation Report found that often correctional officers are able to swap shifts so that the forty hour work week is met by two consecutive days of double shifts, followed by third day with one shift.[xxxii] A number of studies have found that 16 hour shifts increase error and decrease alertness for those who are subject to such long hours.[xxxiii] The correctional officers union asserts that its members are “assigned to undoubtedly the toughest beat in the commonwealth”.[xxxiv] Yet the Commission did not examine this work arrangement for its impact on safety within the prisons, nor suggest that the finding of the Geoghan Panel warranted further examination. While a renegotiation with the appropriate unions of this unsound practice may be difficult, that does not mean that the practice should be ignored.
While the Report recognizes the need for a focused review on medical and mental health services provided prisoners, there is no specific mention of the conditions of treatment for those held within civil commitment for indefinite periods of time. Civil commitment is not intended to be merely an extension of incarceration under a different name, but a period during which the state offers treatment to sex offenders. Reports in the files of the CJPC suggest that in practice, civil commitment is woefully inadequate in providing intentional treatment, and that conditions are in some instances worse than those experienced in the prisons from which those civilly committed come. Examination of the Treatment Center for Sex Offenders should be included within the dedicated review of health services.
The Commission appears to have been charged to examine the DOC without examining the ancillary government and private agencies which closely interact with and even impact the DOC. The charge from the Governor to the Commission, a “top to bottom review of the Department of Correction…”[xxxv] appears not to have included the Parole and probation agencies. It is difficult to imagine the re-entry needs of prisoners without understanding the culture of those two agencies. It becomes difficult for the DOC to meet the goal of public safety if its most critical partners are not working in concert with the department. The Parole Board and Probation Office were also changed by the failed policies of the Weld administration of the 1990s. Failing to address critical changes in those agencies will surely hinder the success of any DOC reentry pre-release programs. As an example, it would be useful to know whether parole and/or probation officers see their primary duty to be that of entrapping their clientele in prohibited activities so they may be re-incarcerated, or helping solve the many problems attendant upon release. At the least, the Report could have asserted that a thorough review of Parole and Probation is urgently needed, including their mission and the training for personnel, just as the report singled out the medical and mental health services within the DOC as due for review.
Fundamental to reentry is the need of assuring room/board and resources for released prisoners. In Section IV – Public Safety and Inmate Reentry, the Report suggests that much research on current problems of reentry has been done and available to the public, obviating any need to “reinvent the wheel”.[xxxvi] The Report cites five different recent reports dealing with reentry. A review of three of those five published reports[xxxvii] suggests that these three fail to look at the issue through the eyes of the clients, which focus on the details, but rather through the eyes of the government and/or society, which deals more with broad concepts than the minutiae of daily living. For instance, these reports do not address the hopelessness that accompanies release from prison with a ticket to Boston and $10 in the pocket. This hopelessness is particularly present in former prisoners without family or community support.
Much is made of the need for the DOC to partner with community agencies, which agencies were also changed in the 1990s by decreased government funding. Such partnerships should be based on the DOC preparing prisoners for release with appropriate resources. For instance, there are an increasing number of legislative attempts to extract payment from prisoners for in-prison services – exorbitant phone costs, charges for medical services, even canteen prices – that reflect the outside economy while the value of inmate labor is orders of magnitude less. If the small savings prisoners can accrue through occasional prison work can be used up during a prisoner’s period of incarceration, with what cash reserve can s/he reenter the world? How will an inmate come by a first and last month’s rent and security deposit for an apartment? Again, missing in this discussion is the view from the individual, which, if a former prisoner had been appointed to the Commission, would likely have more present in the discussion and recommendations.
Depending on private agencies to solve housing and employment problems and even obtaining a driver’s license, frequently means depending on a sole individual employed by that private agency.[xxxviii] What appears on paper as a successful reentry program for countless prisoners is in reality a small set of independent private sector individuals; anecdotal testimony from numbers of persons who have been released speak to the inadequacy of this network. This is not a dependable system upon which the state can, or should, base pre-release programming; it is not a system to be counted on to reduce recidivism. The Report should have recommended urgent attention to this “ancillary” problem as critical to a successful DOC reentry program.
In closing, it may be that a number of the deficiencies of the Report derive from the select experiences of members of the Commission. Had the composition of the Commission had representatives from the behavioral sciences, service providers, and possibly even a former prisoner, perhaps these issues would not have been overlooked. It remains to be seen whether an advisory board, recommended by the Report, will be constructed to include more diverse backgrounds than did the Commission represent.
The Report begins with a quotation from Edward A. Flynn, current Secretary of the Executive Office of Public Safety:
“If nothing else, inmates must leave our custody with a belief that there is moral order in their world. If they leave our care and control believing that rules and regulations do not mean what they say they mean, that rules and regulations can be applied arbitrarily or capriciously or for personal interest, then we will fail society, we will fail them, and we will unleash people more dangerous than when they went in.”[xxxix]
To which it should be added that, as the Commonwealth fails to provide the resources to allow for the rehabilitation of prisoners, mentally, physically and spiritually, we will also fail in our efforts to make the Commonwealth a safer environment for all.
[i] The Report, p. iii.
[ii] Ibid., p.10.
[iii] the automatic deduction of a certain number of days per month from a maximum sentence for demonstrated good behavior. Ibid., p. 40, footnote 123.
[iv] “Administrative Investigation Report”, Delany et al., pp. 54-66.
[v] Ibid., p. 26.
[vi] Ibid., p. 27.
[vii] Ibid., p.45.
[viii] Ibid., p. 69.
[ix] Ibid., p. 18.
[x] Ibid., p. 32.
[xi] Ibid., p.32.
[xii] Ibid., p.37, footnote 116.
[xiii] transitional programming, or pre-release programming, refers to programs designed to give inmates the tools needed to function outside of prison, including community resources for jobs, housing, and other basic needs, teaching job interviewing skills, and skills needed for reconnecting to family.
[xiv] Ibid., p. 52.
[xv] Iibid., 0.50.
[xvi] step-down processes refers to moving prisoners through a series of lower security levels prior to release to acclimate them to the lessening of control by others, and the requirement of self control and personal responsibility needed to function within the community to which they will be returning.
[xvii] Ibid., p. 4.
[xviii] Ibid., p. 71.
[xix] Ibid., p. 10.
[xx] Ibid., p. 5.
[xxi] Ibid., p. 39.
[xxii] Ibid., p. 55.
[xxiii] Ibid., p. 14.
[xxiv] Ibid., p. 17.
[xxv] Ibid., p. 54.
[xxvi] Ibid., p. 6.
[xxvii] Secretary Edward Flynn. Secretary Flynn releases report on Geoghan slaying. http://www.mass.gov/ MEDIA/geoghan.html
[xxviii] Ibid.
[xxix] The Report, p. vii.
[xxx] The Report, pg. 36.
[xxxi] With 3600 correctional officers at 18 institutions, and the 6 institutions surveyed chosen to represent a cross section, the number of staff surveyed was likely to approach 1300 officers, both correctional and correctional program officers.
[xxxii] Administrative Investigation Report, p. 89.
[xxxiii] Boston Globe, July 7, 2004; “Study Links Long Hours, Nurse Errors”. The article references other studies of truck drivers, airplane pilots, and doctors with comparable findings. “Nurses who worked shifts lasting 12.5 hours or longer were three times more likely to commit an error …. than nurses who worked fewer than 8.5 hours, … according to a new study from the University of Pennsylvania School of Nursing.”
[xxxiv] MCOFU Testimony before the Joint Committee on Public Safety, October 23, 2003.
[xxxv] Cover letter to Gov. Mitt Romney dated June 30, 2004, a part of The Report.
[xxxvi] The Report, p. 30.
[xxxvii] Governor’s Commission on Criminal Justice innovation, Reentry and Post-Release Supervision Subcommittee Final Report (2004); Piehl, A.M., From Cell to Street: A Plan to Supervise Inmates After Release, (2002); Boston Bar Association, Report of the Boston Bar Association Task Force on Parole and Community Reintegration, (2002).
[xxxviii] Piehl, From Cell to Street: A Plan to Supervise Inmates After Release, p. 32.
[xxxix] Flynn, Edward A., Secretary, Executive Office of Public Safety, MA. (Feb. 4, 2004) press release.
[ii] Ibid., p.10.
[iii] the automatic deduction of a certain number of days per month from a maximum sentence for demonstrated good behavior. Ibid., p. 40, footnote 123.
[iv] “Administrative Investigation Report”, Delany et al., pp. 54-66.
[v] Ibid., p. 26.
[vi] Ibid., p. 27.
[vii] Ibid., p.45.
[viii] Ibid., p. 69.
[ix] Ibid., p. 18.
[x] Ibid., p. 32.
[xi] Ibid., p.32.
[xii] Ibid., p.37, footnote 116.
[xiii] transitional programming, or pre-release programming, refers to programs designed to give inmates the tools needed to function outside of prison, including community resources for jobs, housing, and other basic needs, teaching job interviewing skills, and skills needed for reconnecting to family.
[xiv] Ibid., p. 52.
[xv] Iibid., 0.50.
[xvi] step-down processes refers to moving prisoners through a series of lower security levels prior to release to acclimate them to the lessening of control by others, and the requirement of self control and personal responsibility needed to function within the community to which they will be returning.
[xvii] Ibid., p. 4.
[xviii] Ibid., p. 71.
[xix] Ibid., p. 10.
[xx] Ibid., p. 5.
[xxi] Ibid., p. 39.
[xxii] Ibid., p. 55.
[xxiii] Ibid., p. 14.
[xxiv] Ibid., p. 17.
[xxv] Ibid., p. 54.
[xxvi] Ibid., p. 6.
[xxvii] Secretary Edward Flynn. Secretary Flynn releases report on Geoghan slaying. http://www.mass.gov/ MEDIA/geoghan.html
[xxviii] Ibid.
[xxix] The Report, p. vii.
[xxx] The Report, pg. 36.
[xxxi] With 3600 correctional officers at 18 institutions, and the 6 institutions surveyed chosen to represent a cross section, the number of staff surveyed was likely to approach 1300 officers, both correctional and correctional program officers.
[xxxii] Administrative Investigation Report, p. 89.
[xxxiii] Boston Globe, July 7, 2004; “Study Links Long Hours, Nurse Errors”. The article references other studies of truck drivers, airplane pilots, and doctors with comparable findings. “Nurses who worked shifts lasting 12.5 hours or longer were three times more likely to commit an error …. than nurses who worked fewer than 8.5 hours, … according to a new study from the University of Pennsylvania School of Nursing.”
[xxxiv] MCOFU Testimony before the Joint Committee on Public Safety, October 23, 2003.
[xxxv] Cover letter to Gov. Mitt Romney dated June 30, 2004, a part of The Report.
[xxxvi] The Report, p. 30.
[xxxvii] Governor’s Commission on Criminal Justice innovation, Reentry and Post-Release Supervision Subcommittee Final Report (2004); Piehl, A.M., From Cell to Street: A Plan to Supervise Inmates After Release, (2002); Boston Bar Association, Report of the Boston Bar Association Task Force on Parole and Community Reintegration, (2002).
[xxxviii] Piehl, From Cell to Street: A Plan to Supervise Inmates After Release, p. 32.
[xxxix] Flynn, Edward A., Secretary, Executive Office of Public Safety, MA. (Feb. 4, 2004) press release.
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