A report by YAEL SHY for the CRIMINAL JUSTICE POLICY COALITION
MASSACHUSETTS: ALTERNATIVE APPROACHES
Massachusetts is currently facing a serious state deficit, one of the worst since the Great Depression of 1929. Meanwhile, Massachusetts mandatory minimum sentencing laws (enacted in the 1980’s and 90’s) are placing unnecessary strain on the state’s budget, forcing judges to assign lengthy and costly prison sentences to non-violent offenders. Incarceration rates have been climbing, prisons resources are being severely taxed, and street drug use shows no signs of abating.
There is a proposed partial solution for this growing fiscal and judicial problem. Sen. Cynthia Creem(D.-Newton) has introduced S.167, a bill allowing any persons serving mandatory minimum sentences for drug offenses the eligibility of parole after serving two-thirds of the maximum term of imprisonment imposed. If passed, this legislation would greatly ease the burden of Massachusetts’ overflowing prison population and tapped-out financial resources. This would be a small but crucial step in the direction of reforming Massachusetts criminal justice law from the unsustainable “tough on crime” posture of the 1990’s to a newer, “smart on crime” strategy.
Should Massachusetts legislators pass S.167, they will not be alone in re-thinking mandatory minimum sentences in the face of a growing deficit. A recent report by FAMM (Families Against Mandatory Minimums), a national citizen’s group, detailed the overall trend in twenty-five states towards lowering incarceration rates, relaxing mandatory minimum sentencing laws and creating more financially and ethically responsible policies for non-violent offenders. Five states mentioned in the report (and expanded on below) have passed laws nearly identical to S.167 in Massachusetts, all with strong bi-partisan support. These states are Michigan, Missouri, Arizona, New Mexico and Mississippi.
In 2002, Michigan legislators in both houses of the congress repealed many of the harshest mandatory minimum sentencing laws for non-violent drug offenders in the nation. Republican leadership in both houses supported these repeals, as did former governor John Engler (D) who signed these reforms into law. The bill is expected to open eligibility for early release to nearly 7,000 low-level drug offenders, and to save $41 million in 2003 alone. HB 6510, one of the three Michigan sentencing reform laws, has four provisions.[i] Although more specific then Massachusetts bill S-167 with respect to drug amounts, there is a provision in the Michigan bill which deals directly with reducing prison time and maximizing parole eligibility for drug offenders. This provision provides that:
A person convicted of manufacturing, creating, delivering, or possessing with intent to manufacture, create, or deliver less than 50g, or of possessing 25g or more but less than 50, and sentenced to a term of imprisonment that was consecutive to a term imposed for any other violation involving manufacture, delivery, possession with intent of any quantity, or a possession involving 25g or more, would be eligible for parole after serving one-half of the minimum sentence imposed for each of the other violations. This provision does not apply, however, if the sentence were imposed for a conviction for a new offense committed while the individual was on probation or parole. [ii]
SB 0005 is the sentencing reform bill in Missouri signed by Democratic governor, Bob Holden in 2003. It was sponsored by Senator Harold Caskey (D) and Senate Judiciary Committee chairman Matt Bartle (R), with broad bipartisan support. The bill led to the release of 1,500 current prisoners, saving the state $21 million in 2003, with annual savings expected to double in coming years.[iii] Just like the Massachusetts bill, the Missouri bill reduces mandatory minimum sentences for the least-serious felony offenders, including many drug offenders. The law states that:
558.011. 1 The authorized term of imprisonment, including both prison and conditional release terms, are:
(4) for a class (D) felony, a term of years not to exceed four years;
558.016. 8 An offender convicted of a nonviolent class C or class D felony with no prior commitments, after serving one hundred twenty days… may… petition the court to serve the remainder of…[the] sentence on probation, parole, or other …alternative sentence.
558.019. 2(1) If the offender has one previous prison commitment for a felony offense, the minimum prison term which the offender must serve shall be forty percent of his or her sentence or until the offender attains seventy years of age and has served at least thirty percent of the sentence required, whichever comes first;[iv]
In 2001, New Mexico passed a landmark bill, SB 200, authorizing early release of non-violent drug offenders from correctional facilities within the state. This bill was introduced by Michael Sanchez (D) and signed into law by Governor Gary Johnson (R). Identical to the Massachusetts bill except that it applies only to female prisoners, the law specifically states:
“A) The corrections department shall develop criteria regarding the eligibility of a female inmate for early release into a reentry drug court program, including requirements that the female inmate: (1) was incarcerated following conviction for a nonviolent, drug-related offense; and (2) is within 18 months of release or eligibility for parole.”
SB 1291, the Arizona sentencing reform bill, deals primarily with moving nonviolent drug offenders out of prisons and into transitional rehabilitation and counseling programs. Introduced by Senator Mark Anderson (R) and passed in 2004, the bill has been praised for its relaxing of previously strict mandatory minimum requirements and “truth in sentencing” laws. The bill is expected to increase the eligibility for parole for hundreds of prisoners next year alone.
The bill reads:
“31-285) Beginning Jan 1, 2004, an inmate who enters a transition program pursuant to this article transition shall be released from confinement three months earlier than the inmate’s earliest release date.”[v]
In 2001, Mississippi passed legislation (HB 1358) allowing for early release of prisoners. Unlike the proposed MA bill, however, Mississippi awarded this possibility of early release through earned labor and/or completion of educational and “special incentive” (D) and signed into law by Governor Haley Barbour (R). Although no data was available programs. This bill was proposed by representatives Malone (D), Coleman (D) and Scott on how many new inmates have won early release eligibility or how much the state has financially benefited from the bill, the governor and several congressmen have called the bill a “sure success.”[vi]
HB 1358 states:
1) If an inmate gained “trusty” status through good behavior, his/her early release eligibility is based on 10 days of freedom for each 30 days of work/program participation in an approved program while in trusty status, including satisfactory participation in education or instructional programs, satisfactory participation in work projects and satisfactory participation in any special incentive programs.
Clearly there is variation and nuance in the manner legislators in the five states listed above have elected to enact early-release laws for non-violent drug offenders in their states. What is also clear, however, is that an increasing number of states are realizing that the deterrence strategies of “tough on crime” legislation has repeatedly failed, leaving nothing but deficits and overpopulated prisons in its wake. The five states in this report, Michigan, Missouri, New Mexico, Arizona and Mississippi have taken steps to reverse the damage, each with legislative support across party lines. The same can and should be done in Massachusetts.
[i]HB 6510 also includes reforms dealing with increases in the maximum number of prisoners allowed at two facilities in Michigan, changing eligibility requirements for parole based on amount of drugs involved in the violation, and changing the requirements of the parole board with respect to their communication with prosecuting attorneys.
[ii] Sec.34(13): An individual convicted of violating or conspiring to violate section 7401(2)(a)(iv) or 7403(2)(a)(iv) of the public health code, 1978 PA 368, MCL 333.7401 and 333.7403, before the effective date of the amendatory act that added this subsection who is sentenced to a term of imprisonment that is consecutive to a term of imprisonment imposed for any other violation of section 7401(2)(a)(i) to (iv) or section 7403(2)(a)(i) to (iv) is eligible for parole after serving 1/2 of the minimum sentence imposed for each violation of section 7401(2)(a)(iv) or 7403(2)(a)(iv). This subsection does not apply if the sentence was imposed for a conviction for a new offense committed while the individual is on probation or parole.
[iii] “Arresting the Overflow: A Missouri Legislative Report on SB 0005”, quoted on the website, www.stopthedrugwar.org
[iv] The bill also provides drug offenders with mandatory drug treatment and job skills training while incarcerated, places requirements on judges to assign probation and parole to these prisoners, and changing the definition of what constitutes a “dangerous felony.” On issues unrelated to sentencing, the bill changes residency requirements for certain district’s police officers, creates retirement funds for prosecuting attorneys, changes classification codes for tampering with prescription drugs, assaults on emergency personnel, stealing, and unlawful use of weapons, and creates two measures designed to create a sex offender registry and to expand victim’s rights.
[v] The law also creates transitional programs within the Arizona Dep’tartment of Corrections for non-violent offenders, particularly rehabilitation, educational development, housing and employment assistance, and restorative justice efforts. It includes provisions for the ADC to report on cost reductions to the Governor, Senate President and Speaker of the House, and for the savings from sentence reductions to be deposited into the transition programs. Finally, the bill amends the state’s landlord-tenant law with respect to social service providers.