Another Tough Vote on Sentencing Reform

Over the past week, both branches of the legislature approved a compromise sentencing bill.   The compromise is a very thoughtful improvement over the bill that I voted against last November, but it  leaves much to be done.

Our correctional system is overloaded and so is less capable of doing the careful evaluation of offenders necessary to identify those most likely to hurt people if released.  The system, from time-to-time, ends up making mistakes and releasing truly dangerous criminals despite the fact it has the power and duty under existing law to retain them.   And, of course, as overcrowding makes prison life brutal, prisoners are likely to emerge more dangerous and fundamentally less capable of joining civil society.

We can’t afford to increase the capacity of the system.    So, we need to look carefully at how long we are keeping people in the system and seek to reduce sentence lengths for the less dangerous people.   A X% average reduction in sentence length translates mathematically into a X% reduction in population and would proportionally improve our ability to manage  offenders.

The present reform of our habitual offender statute moves in the other direction — increasing likely sentence lengths by reducing parole eligibility.   We already have a three-strikes law in Massachusetts.  A person who is twice incarcerated in state prison for three years or more and commits a third offense gets the maximum penalty for that third offense.  That basic rule does not change in the final version of the reform.  What changes is the time to earliest parole eligibility on the third strike:

• For felonies punishable by life sentences (for example, rape and armed robbery), the reform gives the judge the ability to set parole eligibility at up to 25 years while now it is automatically at 15 years.
• For non-life felonies, the reform moves eligibility from half of the maximum to 2/3 of the maximum (no judicial discretion).
• For offenders who have thrice committed serious violent offenses the reform imposes life without parole (no judicial discretion).

Based on data from the sentencing commission, I estimated that earlier versions of these provisions would lead to a state prison population increase of approximately 1000 inmates or roughly 10%.  The conference committee  changes bring that number is closer to 500 inmates.  The improvements come from:

• adding the judicial discretion as to whether to push minimum parole eligibility out from 15 to 25 years for life felonies;
• making the definition of the first two strikes consistent with the existing definition (earlier drafts would not have required three-year sentences served on the first two strikes);
• somewhat shortening the list of life-without-parole crimes (the list change doesn’t have a big population impact, although helps reduce injustice).

The conference committee does also include reductions in the structure of mandatory minimums for drug offenses, mostly unchanged from the Fall senate version of the bill.  These reductions may almost offset the populations increase caused by the habitual offender reform.

The final bill cuts school zones from 1000 feet to 300 feet and excludes offenses committed between midnight and 5AM.  The school-zone study that I did in 2001 suggests that these changes together will cut about 75% of school zone cases out, but the population impact may be a wash because many offenders  who might today be charged with school zone offenses could also be charged under the more punitive second offense statute.  I had urged the conference committee to align the second offense penalty with the school zone penalty to keep the school zone change from possibly backfiring (by driving a shift towards second offense charging), but this change was not adopted.

In summary, although the data is sketchy and estimates vary, I believe that the final version of the bill is close to neutral as to its impact on prison populations.  The reductions for drug offenses will be concentrated in poverty communities of color.  In that respect the bill is a modest positive and the bill does include other positive features.  On the other hand, the prospect of mandatory life-without-parole with no safety valve for unusual situations remains very troubling.

Although all senators had  voted for the bill in November, six joined me yesterday in voting against the improved version.  Consciousness of the overloading of the criminal justice system has risen and  many (including many who voted for the compromise) recognize the need to sustain a focus on sentencing reform in the next session.