Is it fair or a farce? Time to raise the amount earned under M.G.L.c. 144, §127

Issue May 2014 By Jawara Griffin

As criminal defense attorneys, other defense attorneys and I are perceived of wanting our clients to walk away from all allegations completely unscathed, regardless of whether they committed the alleged act or not. Although there may be some level of truth to this perception, most defense attorneys understand that these goals are not attainable. Therefore, we tend to focus on our second tier of representation, which is fairness. Although the final outcome of a case is not predetermined, or cannot always be predicted, assuring that our clients are treated fairly throughout the process is nonnegotiable. Being treated fairly throughout the criminal justice process starts from statute and ends at the sentence, if one is to be had.

Starting with that premise there are many statutes that need to be reexamined for fairness from time to time. In this space I cannot discuss all, or even many, of the statutes that I believe need reexamination for fairness. However, there is one issue that I would like to discuss: M.G.L.c. 144, §127, Discharge of Prisoner Committed for Non-Payment of Fine. "A prisoner confined… for non-payment of a fine or a fine and expenses shall be given a credit of thirty dollars on such fine or fine and expenses for each day during which he shall be so confined." M.G.L.c. 144, §127.

Although at one point this amount may have been sufficient, presently this amount is unfair and must be raised.

Increasing the wage amount under this statue is not a new concept as the wage amount has been increased three previous times. This statute was enacted in 1824, at which time the amount was set at 50 cents per day. In 1950, it was increased to $1 per day. In 1970, it was again increased to $3 per day. In 1987, there was a significant increase to $30 per day, and now fairness calls for another significant increase. An increase in the statutory amount is fair to both the individuals sentenced under that statute who are trying to work off their fines and fair to the taxpayers who are paying to house the individuals while they are working off their fines.

The statute establishes that persons sentenced under this statute are earning $30 per day. Although they are housed for 24 hours a day, logically they are not earning money for each and every hour they are sitting in jail. Instead, they are being given credit for an average work day which is eight hours a day. Therefore, the analysis should be determined by how much an individual can earn in an eight hour span. I suggest that we look to other statutes that the court relies on when making a determination on how much a person is paid when they are working off a fine or court cost in lieu of paying cash. Under M.G.L.c. 211D, §2A(g) Attorney Fees, it establishes that a person who cannot afford to pay their counsel fees can do 10 hours of community service for every $100 dollars for a court appointed attorney. This establishes that that the court has accepted $10 per hour as a fair working wage and therefore persons in jail should be earning $10 an hour for eight hours.

According to the Executive Office of Public Safety and Security website, "In Massachusetts it costs $47,102.03 a year to house an inmate." This equates to taxpayers paying $126 a day on average for an inmate. This discrepancy should serve as an eye-opener to anyone who sees it. Taxpayers are paying $126 per day to house an individual just so they can pay the court $30 per day. That is a major problem!

Considering the length of time since the last amendment, current statutes permitting individuals to earn $10 an hour and the amount that it costs taxpayers to house an inmate, it is clearly time to fairly raise the amount a prisoner confined for non-payment of a fine receives.

Jawara Griffin is originally from Philadelphia. He graduated from UMass Dartmouth School of Law and currently practices criminal law with the Committee for Public Counsel Services.