The Big Picture on the Crime Bill

The House and Senate are still conferencing their conflicting versions of a crime bill for this session. The House version is narrowly focused on habitual offender rules — which I have written about previously. The Senate bill addresses a bigger picture. It aims to shift resources away from drug offenses towards violent offenses, placing a greater emphasis on a supportive response to substance abuse and mental health problems. However, in my view, as originally drafted, its main consequence would be an overall increase in incarceration.

I write to take stock of the ideas on the table and consider my likely vote depending on how the bill emerges.

The Senate bill includes the following elements that tend to shift from punishment towards a public health approach to substance abuse and mental health issues:

• Access to anti-overdose drugs for friends and family members of persons with addiction so that they can help prevent overdoses.
• Modest reductions of mandatory minimum penalties for drug dealing offenses. We lack an authoritative analysis of the effects of these reductions, but this is an area to which I have given a lot of thought over the years. I believe that as currently drafted, these provisions might not actually reduce incarceration. They could be rendered more clearly helpful by a couple of amendments.
  • Prison Legal Services has estimated a reduction of 349 to 697 man-years of incarceration annually. Click here for their analyis.
  • The PLS analysis looks only at people actually convicted of the subject offenses and does not make estimates of how the plea bargaining process might change in the larger universe of cases that do not lead to convictions for the subject offenses. I think their method gives good ballpark results as to the higher weight trafficking mandatories — essentially all of these people will be convicted of a lesser mandatory in the bargaining process anyway, so assuming a one year shift downwards in the ladder is reasonable. For the second offense mandatories, the one year downshift is also a reasonable guesstimate.
  • However, reducing the scope of school offenses (narrowing the penalty enhancement zone from 1000 to 500 feet), could have unintended consequences. I do support the change. I believe that it will protect schools better to have smaller zones — if every place is a school zone, then no place is a school zone. But historical experience suggests that a reduction of the school zone will lead to a surge in second offense dealing charges in Superior Court. In 1989, when the school zone law at 1000 feet was introduced, police quickly realized that it applied essentially everywhere and was available in district court. It became the tool of choice for prosecuting drug dealers. The number of commitments to state prison for drug offenses actually dropped by 488 commitments per year (40%) from 1990 to 1994 , while the commitments from District Court to the House of Corrections rose substantially. An effect of this size could swamp the benefits of the other proposed reductions.
  • To prevent a reversal of the historical shift to school zone prosecution and a return to second offense prosecution, which would lead to increased state prison incarcerations for drug offenses and would also congest the Superior Court, the conferees could, in addition to shortening the minimum sentence for second offense dealing (class A, B and B-cocaine) to two years, make those sentences optionally to the House of Correction Sentences and add language placing them within the jurisdiction of the District Court.
• The “good samaritan” law, which would protect people seeking medical assistance for an overdosing person from placing themselves at risk of criminal prosecution.
• Sharing of mental health information as prisoners move among facilities.
• Improved re-entry support:
  • A mandate to DOC to promulgate regulations to implement a strategy to help people re-enter society successfully —
    

    promulgate regulations to develop, implement, coordinate and monitor a comprehensive, collaborative, seamless, reentry strategy which promotes successful transition of the offender population to promote public safety and reduce recidivism by collaborating with county, state, community and faith-based agencies in areas including, but not limited to, housing, employment, medical and mental health care, substance abuse treatment, education and related transitioning programming. The reentry process should begin upon an inmate’s commitment to the department and continue until the inmate is discharged from supervision into the community.

  • Mandatory post-release supervision for all offenders. During the supervision period, the inmate is subject to reincarceration for violations like substance abuse. I am strongly in favor of more support for people during re-entry, but without adequate funding for programs, this provision could operate to simply extend incarceration terms. According to the PLS analysis, 1700 offenders currently come out without parole. We lack data on which to found an estimate of revocation rates, but, as an example, if the average supervision term were one year and half of the prisoners were reincarcerated for an average of 6 months, the prison population would go up by 400 inmates.
  • Stronger “good time” incentives for prisoners to participate in and complete programs of rehabilitation and training.

At the same time, the bill includes substantial enhanced penalties for violent offenders. Apart from the three-strikes provisions, which have been carefully analyzed, we have no estimates for the incarceration impact of these laws.

• Habitual offender or “three strikes” penalty enhancements.
• Enhanced penalties for carrying dangerous weapons.
• New stiff penalties for use of firearms to commit crimes.
• Stiffening protections for victims of domestic violence — new penalties for strangulation, inclusion of pets in restraining orders, mandatory participation in batterer intervention courses.

Additionally, the law makes some procedural changes that prosecutors have sought.

• Modest streamlining in DNA testing procedures (the changes do not appear to subject additional offenders to testing).
• Expansion of wiretap availability to cases other than organized crime cases. Currently, Massachusetts prosecutors can only get a wiretap warrant after a showing that they are pursuing an organized criminal enterprise — “a continuing conspiracy among highly organized and disciplined groups to engage in supplying illegal goods and services.” The change would make it easier to go after murder, drug crimes and firearms crimes without a showing that they relate to full-blown organized crime. These changes are motivated by the hard-to-penetrate urban crime cases where cooperation with police is low. I do think that this provision goes too far in allowing wiretapping for all law drug violations (even for possession offenses). The exact language of this provision appears not to need more public vetting.
• Amendment of the wiretap law generally so that police can use location tracking devices and monitor pagers and funds-transfers without a warrant. I’m not sure that the language of these exclusions is sufficiently clear — it may be overbroad and may lead to continued confusion about the rules.

Other miscellaneous provisions include a complex change in the procedures around minor criminal cases that might be treated as civil. The new procedures appear to shift the discretion on these cases from court officials to the police and to enhance police authority to require identification.

Current conversations in the conference committee are focused on a recent House proposal that more narrowly targets the habitual offender provisions and does include the mandatory minimum sentence reductions. With some further adjustments — to further narrow the habitual offender provisions and to assure that the mandatory minimum sentencing provisions will lead to a substantial reduction in population — I might be able to support a bill including basically these elements.

As to the other issues raised in the Senate Bill: I would not object to inclusion of the DNA procedural change and to the provisions that directly support a public health approach. The wiretap provision clearly needs further public discussion before enactment. I would also have a hard time supporting a bill that included mandatory post-release supervision — my overall take is that we don’t provide re-entering inmates enough support to succeed. We will not have the money to actually add supportive supervision unless we substantially reduce incarceration costs.

The bill we have before us does not make deep enough reductions in minimum mandatories to lead to substantial population reductions. Deep reductions are needed to allow a real increase in rehabilitative re-entry programming or, for that matter, to allow a real increase in efforts to target violent offenders. The real problem in criminal justice, as elsewhere in government, is resource scarcity. The “get tough” provisions of the bill will do little to the protect the public without more resources.

In summary, while I support the broad concepts evident in the senate bill — a public health approach to drug violations, improvement in re-entry programming to reduce recidivism and a prioritization of enforcement against violence — more work is needed to align the specifics in the bill with the concepts.