The Massachusetts Bar Association recently issued a report and
passed resolutions urging adoption of practices and legislation to
ensure that a low-income defendant's inability to pay fees due to
lack of income does not result in incarceration, unfair pretrial
detention or accumulation of debt that impedes successful re-entry
into the workforce and society.
MBA Criminal Justice Section Council members recently testified
in favor of bills that address criminalization of poverty, bail
reform, gaps in CORI laws and revision of outdated laws, including
the failed war on drugs program of mandatory minimum sentences.
All attorneys should advocate for criminal justice reform.
Top 10 reasons to support criminal justice
reform
Incarceration has proven to have little effect on crime rates in
Massachusetts and is incredibly costly to taxpayers.
Massachusetts has racially disparate rates of incarceration that
erode public confidence and call into question the fairness of the
criminal justice system as a whole.
Massachusetts has high recidivism, and employment is a leading
factor in reducing recidivism. Gaps and faulty provisions in CORI
statutes and other laws shut many people out of the economy by
imposing overly long waiting periods for sealing of CORI, by giving
people lifetime never sealable records for very common offenses,
such as resisting arrest, and by creating other barriers to jobs,
training, occupational licensing and other opportunities.
Massachusetts is an outlier with a felony-larceny threshold of
only $250, which makes felons of countless people who commit
low-level offenses, including many young adults and people with
substance abuse issues. The felony status triggers a decade-long
waiting period to seal the record.
The right to due process and equal protection of the law
prohibits courts from punishing poverty or incarcerating low-income
criminal defendants solely because they are unable to pay a fee or
fine.
Low-income defendants often cannot afford even low bail, which
results in pretrial detention, and loss of jobs and income. This
affects their ability to keep their homes, support their children,
pay their bills, and successfully re-enter society and the
workforce.
There is no uniform standard for waiver of fees, and probation
and myriad other fees routinely imposed in a criminal case quickly
accumulate into debt for those who have little or no ability to
pay. A person's later incarceration for failure to pay fees likely
costs the state more than the revenue that the fees would have
generated.
Mandatory minimum sentences put too much power in the hands of
prosecutors, prevent judges from imposing fair sentences in all
cases and further contribute to racial disparities in
incarceration.
Defendants facing mandatory minimum sentences have little
choice, but to take plea deals that result in incarceration rather
than risk longer mandatory incarceration sentences if they go to
trial.
Mandatory minimum sentences cast too wide of a net and impose
overly harsh sentences on people with addiction issues when public
dollars would be better spent on treatment programs rather than on
incarceration.
Smarter on crime measures
The Council for State Government Justice Center, in its recent
study of our court system, noted that 43 percent of individuals
sentenced to the House of Corrections (HOC) in 2013 had a prior
sentence within three years. Criminal justice reform should matter
to everyone because individuals released from incarceration are
clearly in need of support and institutional strategies that
promote return-to-the-workforce and post-incarceration success.
MassINC, a non-partisan think tank, issued a report in 2016
stating that the elevated level of recidivism is a symptom of
"tough on crime" era policies, and that too often after
incarceration, "prisoners leave hardened and more prone to commit
crime than when they entered." In 2017, MassINC polled voters and
found that they largely approve of major criminal justice reforms.
Key findings were that a plurality of voters think that we
incarcerate too many people, and that the present system increases
rather than prevents crime. Voters also want to move in the
direction of ending mandatory minimum sentences, permitting people
to seal their records sooner, raising the felony-larceny threshold
and permitting compassionate release from incarceration of
terminally ill people. By two-to-one margins, voters said drug
arrests should be treated as a health issue, and favored investing
in treatment and rehabilitation over incarceration.
Racial inequality
Advocacy for criminal justice reform in Massachusetts is also a
call for an end to racial disparities in the criminal justice
system. In a post-Ferguson world, the fairness of the legal system
is more frequently called into question, and there is greater
public awareness that people of color are disproportionately
involved in the criminal justice system and often poor. While
Massachusetts touts its low incarceration rate as compared to many
other states, our incarceration rate in 2014 was seven-and-a-half
times higher for blacks than whites, while the ratio for the U.S.
was five to one. Our state incarceration rate was 4.3 times higher
for Hispanics than whites - much higher than the one-to-four ratio
for Hispanics nationwide.
Suffolk County House of Corrections statistics for 2016 reflect
large racial disparities, but also indicate that racial
disproportionality is most pronounced in the population serving
mandatory minimum sentences. Blacks and Hispanics comprised 65
percent of the Suffolk HOC population in 2016. The mandatory
minimum sub-population data for 2016 showed that 75 percent of
those serving a mandatory minimum sentence were black or
Hispanic.
Black people comprise 20.2 percent of the population living in
Suffolk County according to the U.S. Census, but are 53 percent of
those serving mandatory minimum sentences in Suffolk HOC.
Deep concern about mass incarceration of people of color has
brought many individuals and groups into an ever growing movement
for criminal justice reform. Recent hearings on criminal reform
bills drew not only the usual criminal law specialists, but large
crowds - including, but not limited to, people previously
incarcerated or with past criminal cases; faith based groups, such
as the Greater Boston Interfaith Organization; the National
Association of Social Workers; substance abuse providers; veterans
advocates; grassroots coalitions, such as Jobs NOT Jails and the
Juvenile Justice Coalition; Neighbor to Neighbor; ROCA; MassINC;
Citizens for Juvenile Justice and other youth groups; civil legal
aid (Greater Boston Legal Services and Mental Health Legal
Advisors); the League of Women Voters; and busloads of people from
EPOCA (an ex-prisoners' group in Worcester) and the Coalition for
Social Justice from New Bedford.
Legislators also are increasingly outspoken about the need for
extensive criminal justice reform. Leaders, such as Senators
William Brownsberger, Sonia Chang-Diaz, Michael Barrett, Cynthia
Creem, Linda Dorcena Forry, James Eldridge, Pat Jehlen and Karen
Spilka, and Representatives Mary Keefe, Liz Malia, Evandro
Carvalho, Byron Rushing, Claire Cronin, and others, filed bills
that address criminalization of poverty, fees and fines, bail
reform, gaps in CORI laws, raising of the felony-larceny threshold,
racial profiling, "fine time," expungement, repeal of mandatory
minimum sentences in drug cases, and other important issues. The
Harm Reduction and Drug Law Reform Caucus and the Black and Latino
Legislative Caucus also have been highly visible in their campaigns
for criminal justice reform.
Criminalization of poverty
There is no uniform standard for waiver of fees, and the number
of fees that are routinely imposed in a criminal case have
increased significantly over time. Low-income people can easily
rack up court debt and sometimes are incarcerated for failure to
pay fees they could never afford. Probation fees, in particular,
are a problem for the poor. A study by the Prison Initiative also
showed that when District Courts were grouped by per capita income
of the communities they served, the highest rates of probation were
in cities where defendants had the lowest income.
The Senate Committee on Post Audit and Oversight studied a
sample of defendants serving "fine time" in three counties for
failure to pay fees. It found that defendants incarcerated for
failure to pay fees had mostly represented themselves at their
hearings on non-payment of fees, although over 60 percent of them
were previously found indigent for purposes of appointment of
counsel. Eighty-three percent of these defendants served over
three-quarters of the sentences they received for not paying fees
or fines, ostensibly because they could not afford to pay the sums
they owed.
When people are incarcerated for non-payment, it prolongs the
life of their criminal cases and puts their jobs, housing and what
little financial stability they have in jeopardy. The same also
applies to low-income defendants who cannot make bail. Studies show
that detaining low- or moderate-risk defendants, even for short
periods of time or with too much supervision, leads to higher rates
of recidivism. Pretrial incarceration results in loss of jobs for
defendants. Cases show up on CORI reports for those who lost their
jobs because they could not make bail, and make it harder for them
to find new jobs.
Senator William Brownsberger's bill (Senate 777, An Act to
Reduce Criminalization of Poverty), which has 40 co-sponsors, would
address the litany of problems related to fees that indigent people
cannot afford and provide greater due process protections prior to
incarceration for non-payment of fees. The bill would require a
determination of indigency, an appointment of counsel for indigents
and a consideration of alternatives to incarceration, such as
payment plans or fee remittance to ensure that a person's ability
to pay is fully considered before a person is jailed for
non-payment of fees. Senate Bill 791 and House Bill 2308 also call
for a uniform fee waiver standard. Senate Bill 755 and House Bill
3077would also increase the "fine time" credit for each day served
for non-payment of fees from $30 to $90 per day.
'Jobs not jails' - not just a slogan
Studies show that employment is a major factor in reduction of
recidivism and successful re-entry. CORI reform in 2010 was an
important first step, but many gaps in the law remain, which impede
many people from returning to the workforce and getting their lives
back on track. The present five-year waiting period to seal
misdemeanors and the 10 year waiting to seal felony convictions are
too long. Most employers will not hire a person with a criminal
record. Waiting periods should never be more than seven years for
most crimes because recidivism studies show that after a seven year
absence of crime, the risk of a new offense is the same as for a
person who never had a record. Most recidivism occurs within 18
months to three years of the last criminal occurrence.
Senator Brownsberger's bill (Senate 777) and Senate 791/ House
2308, filed by Senator Chang-Diaz and Representative Keefe, are
critical and comprehensive bills that would address many barriers
to employment and re-entry success. The bills would:
- Reduce overly long 10- and five-year waiting periods for
sealing of records to three and seven years;
- Permit sealing of resisting arrest convictions, which are now
never sealable offenses;
- Increase the felony larceny threshold to at least $1500;
- Clarify the law so as to exclude cases dismissed before
arraignment from CORI reports;
- Clarify that no juvenile cases are to be included in adult CORI
reports unless the employer has a statutory level of access to CORI
that specifies access to such records;
- Clarify that petitioners can say they have "no record" once
their records are sealed when applying for housing, and fill other
gaps in CORI related laws that make it hard to impossible for
people to not disclose sealed records when they apply for housing,
and other opportunities.
Senate 777 also would make helpful changes to RMV laws that
create barriers to jobs and re-entry including elimination of most
license suspensions that are unrelated to use of a vehicle.
In sum, this legislative session has the potential to be life
changing for countless people.