The Governor’s Commission on Criminal Justice Innovation, chaired by Lieutenant Governor Kerry Healey, released its report on Monday, April 5, 2004.
The Governor’s Commission on Criminal Justice Innovation Critiqued
In the April newsletter, (newsletters archive) we reported on the release of the Final Report for the Governor’s Commission on Criminal Justice Innovation and the Conference to present its findings. Members of the CJPC board were in attendance and identified a number of key concepts within the report as cause for concern.
Among those were an apparent desire on the part of the state to integrate therapist reports from juveniles’ therapists into the law enforcement data banks, with little or no regard for doctor/patient privacy rights; major emphasis on integrating all law enforcement files, but no concern given to the quality of the information within those files, or possible misuse or abuse of that information, and increased reliance on forensic technology but no apparent increase in safeguards to vet the quality or integrity of such evidence analysis, particularly of concern with an increasing reliance on such evidence in criminal trials. Other individuals representing other organizations in attendance were equally concerned about these and other issues. Representatives from three organizations sent a formal letter to Lieutenant Governor Kerry Healey detailing some of the issues, while assuring the administration that there are many organizations and people who are eager to work with the state to improve our criminal justice system.
May 3, 2004 Lieutenant Gov. Kerry Healey State House Boston, MA 02133 Re: Governor’s Commission on Criminal Justice Innovation
Dear Lieutenant Gov. Healey:
As attendees at the Boston Foundation Conference on the above cited report, we collectively support the current administration’s determination to examine current criminal justice practices and to modify or replace them as needed. We join those who have prepared the Final Report of the Governor’s Commission on Criminal Justice Innovation (the Report) and those who have spoken here in viewing the retributive policies of the 1990s as a collective failure in reducing violence. Secretary Edward Flynn, in his closing remarks, said that good ideas are timeless; with this point we heartily agree. However, he also suggested that the public might not support the progressive reforms being discussed in reports and conferences of this type. On this point, we must suggest a more optimistic picture. Our organization represents just a small segment of the growing number of people who support reform of the criminal justice system—people who view the 1990s practices as outmoded and ineffective—citizens who feel that the criminal justice system should integrate sound business practices and integrity, and who would take pride in a criminal justice system whose practices rest on respect for the humanity of all those affected by its policies. In short, we represent the constituency Secretary Flynn is seeking.
The Report has many fine ideas worthy of support and implementation. However, in each of the five areas of concentration, there are concerns which were not addressed either in the Report or in the presentations on Thursday, April 15. None of these stand diametrically opposed to the findings and recommendations that have been presented. However, without attention to them, the changes may accomplish less than the Commonwealth is capable of doing in the interest of justice, safety and economy.
There is an overlap between the five areas of concern; thus, we find it difficult to address the views in this letter to any particular subcommittee, and our comments are not easily ordered with the precision of the Report. This should not hinder evaluation of our concerns by an office concerned with the Report as a whole.
1. The Report suggests that information be more easily shared between law enforcement agencies. Of course, we agree that the state has legitimate needs to collect and maintain data in a form that is easily accessible to appropriate agencies. But there does not seem to have been any attention given to vetting information, to deleting data that is shown to be erroneous, or to suppressing unfounded statements in reports that might have been generated when accurate information was not fully analyzed. In the complex process of investigating cases, law enforcement agencies are often given false information; and even where the data gathered are sound, reports may move beyond the data to unfounded conclusions. The significant number of wrongful convictions recently discovered speaks eloquently of this problem. After the presentation by Peter Quinn on Cross Agency Information Sharing, he indicated to one of us that the concerns noted above had not been a part of the discussion of the committee, and assured his questioner that he would review these issues and make a response. We await his comments.
Innocent citizens who are erroneously convicted, charged, or even questioned have a right to privacy. But if bad information is centralized, we fear that it will become even more susceptible to misuse. We hope that you will work to enforce proper safeguards, including redacting erroneous claims in your files. In addition, if a person is found innocent even after conviction for a charge, that person’s record should contain a clear notation of that fact. Should this individual come under investigation again, the street policeman, detective or other such privileged state agent would be better able to interpret any hostile attitude he might experience from such a citizen, who may feel understandable resentment at having been wrongfully accused by the state.
Even now, there are instances of law enforcement data bases being utilized by private industry, as in the accessibility of vehicle registration records and most recently the sharing of suspect passenger lists compiled by intelligence agencies with airline security services. Misinformation from these sources haves been inappropriately used in the private sector; most recently lists given to airline security personnel have been used with sufficient lack of care to cause injury to innocent travelers. Centralized data becomes that much more dangerous when made available to such private entities with an interest in tracking individuals.
Additionally, Igenetic markers are being linked to personality characteristics. A centralized data collection agency for law enforcement would naturally want to know about such characteristics of citizens in the name of crime prevention. However, such potential propensities markers do not project behavior with sufficient accuracy to warrant the attention of law enforcement agencies’ storing and sharing this kind of information.
The several foregoing issues become even more critical given the potential effects on juveniles when information on them is shared between law enforcement and social service agencies. We see a delicate balance between the advantages of such sharing, and the disadvantages to the young person of a label or collection of negative labels being attached to him or her. Unfortunately there does not appear to be sufficient concern for therapist/client privilege in the proposed policies for handling information; the balance appears to favor the state, while it threatens to disenfranchise the young person. The tenor of the Report itself, as well as the responses at the conference, suggest to us that these potentially dangerous consequences may have been ignored.
2. Other problems with centralization involve forensic technology. In the past decade, the Federal Government, as well as Connecticut, Virginia, and several other states and now Boston have seen instances where crime labs have intentionally generated false analyses of evidence or are so suspected. The primary concern, once again, involves dissemination of such false reports, which becomes more likely, and thus more dangerous, in a centralized system. As with bad information, the question arises: what safeguards are in place to capture and delete bad analyses resulting from forensic technology?
A second concern has to do with standardization. If all Massachusetts crime labs are required to follow identical procedures, then innovation will be discouraged and potentially valuable alternative approaches may never be developed. Once again, we recognize the administrative advantages of a state-wide system, which would make it more feasible to compare results from different labs. But we fear that such a system, too rigidly enforced, might discourage enterprising researchers and hamper the occasional breakthrough innovation that could greatly benefit the state.
3. One presenter at the Thursday conference suggested that the Governance Board for the Cross-Sharing of Information would have an easily identifiable membership, which most of the attendees would recognize. There needs to be constant regard for the more vulnerable segments of our population, provided by qualified persons whose allegiances outside of government will allow them to provide a necessary perspective on issues of fairness and individual rights. This concern is not alleviated by a review of the members of the several subcommittees appointed to the tasks outlined within the Report.
This Governance Board’s sole focus may be overcoming territorial claims by competing data collection agencies. To ensure responsible handling of information, this Board’s membership should clearly include those whose first allegiance is to the rights of the individual over the needs of the state.
4. During the morning question period, the issue of juveniles’ records prompted a comment from the panel that law enforcement personnel are often called on to respond to social frictions, and that police officers are on occasion called on to perform tasks that are normally the domain of social workers. By contrast, in the afternoon presentation about education and training for police officers and prosecutors, which focused on the perceived deficits in current training, much emphasis was given to the desirability for specialized training in drug abuse, family violence, gangs, and school violence among other areas.
However, the session did not acknowledge the full complexity of the problems involved. For instance, it did not mention the importance of respecting different cultures as fundamental to handling these issues. It also did not address the complex problem of interaction with people experiencing mental health emergencies; the erratic behavior of such people is too often perceived as threatening by law enforcement officers, a misperception that can lead to disastrous results. The significant number of deaths of such citizens caused by Massachusetts police over-reaction in these instances suggests that police desperately need more training to recognize behaviors which police perceive as threatening but which are caused by other than criminal intent.
In fact, training in social service and mental health professions requires long and intense study, as well as deep introspection, for those who specialize in such areas. A police officer must be able to navigate between personal bias and objective judgment, and the proposed training may well help in this difficult task. But (s)he also needs to understand that trained social service and mental health professionals outside of the law enforcement community often need to be called upon to resolve conflicts or to fully understand a complex situation.
5. In a discussion with one of us after the afternoon presentation, Cheri Nolan of the U.S. Dept. of Justice agreed that a one-size-fits-all is not desirable in providing pre-release rehabilitation and post-release supervision. Yet the language used, both in the Report and at the conference, seems to assume that all offenders need post-release supervision, which is likely to include behavioral restrictions.
Research has shown that some individuals do not need such services and restrictions. Current discussion within the Massachusetts legislature also seems to ignore this important distinction. . Implementation of mandatory post-release supervision must include recognition of adequate risk and needs data and provisions for discharge from supervision. Policy should be developed so that support services are abundantly available during the first six months after release, since job counseling, health care options, housing, and community support are essential at this time, when the risk of recidivism is highest. Supervision should be provided as needed during this period, and lessened as the released individual shows him/herself capable of establishing a positive life style. Pre-release rehabilitative programs are desirable for most, and the use of “earned good time” should be expanded as such incentives and/or positive reinforcers help create lasting change in behavior. The state’s developing policies on sentencing should include the use of discretionary wisdom in deciding on these transitional programs, some of which should begin at the start of the period of incarceration. Offenders must be treated as individuals, not as composites of the “criminal.” Pre-release programs must build and sustain an intentional culture which emphasizes support versus continued punishment. That is, all employees, services and communications should be aligned around this mission so that the majority of offenders experience this program as support for making a healthy transition.
While the Report does acknowledge the importance of pre-release programming and step-down transitioning for successful post incarceration re-entry, the recommendations of the report within this area appear to be confined to the three month period immediately prior to release. Best practices suggest that such programming should begin the first day of incarceration. Meaningful work and/or programs can contribute to an inmate’s sense of self and healthy accomplishment.
The Report states that “prisoners often complete their sentences without seeking parole, as a means to avoid community supervision.”(Report-pg. 18) This suggests that the lack of post-release supervision is primarily driven by prisoners’ decisions making. Yet only four pages later (pg. 22) in the Report is an acknowledgement that parole is precluded from half of state incarcerated prisoners by virtue of the sentence received, a decision not of the prisoner but of the state. Moreover, the Report does not acknowledge immediate past practices of the Parole Board of denying parole applications so often as to discourage prisoners from seeking parole, nor the immediate past unavailability of step- down transitional housing within the DOC which is needed to fulfill parole board requirements. The Commonwealth would benefit from an economic cost benefit analysis comparing better pre-release programming with more intensive post-release supervision.
As well, the Report asserts on page 23 under the Incarceration/Classification subsection of PROBLEMS, SHORTFALLS AND GAPS, that “Many offenders are not appropriate for lower classification…” and then refers to cohorts of prisoners by offense committed, without reference to demonstrated demeanor within prison. Two decades ago, some lifers were housed in minimum security prisons very successfully. The state’s best interests would be served if the “one-size-fits-all” philosophy is discarded in classification process.
6. Finally, neither the Report nor the presentations on Thursday covered the need for restorative or reparative practices in healing both offender and victim. The Report appears to concentrate on providing the offender with needed skills, housing and health services. These are, of course critical. However, former inmates are often left to deal with their psychological growth by themselves. This involves coming to grips with the nature of their past mistakes and finding ways to face and re-integrate with their community. It may also involve responding directly to the needs of victims and/or family and friends in ways which only the offender can do, and which may allow the victim to move forward. Other American states (i.e. Minnesota and Vermont) and other countries (i.e. New Zealand, Canada, England) are formally working with restorative practices to good effect. Informally, some communities within Massachusetts are doing so as well. The Executive Office of Public Safety should consider an ongoing review of these alternative practices, with an eye to possibly integrating them into current approaches to re-entry.
In closing, our organization are eager to provide the concerned constituency Secretary Flynn seeks, and to help move our criminal justice system forward towards a more healthy model, one which incorporates fairness, rehabilitation and healing as central components of an efficient law enforcement program. We would appreciate comments on the concerns addressed above, and hope for a continuing dialogue as one means of enlarging the constituency for reform all of us want.
Lloyd Fillion, Chair, CJPC Liz Barnett, board member, Criminal Justice Policy Coalition Jean Bell, of Concord Prison Outreach, Inc., and Concord Restorative Circle Dr. Marrey Embers, of the City Mission Society