During the presidential campaign of 1988, Massachusetts enacted monthly fees on people on probation. Thirty four years later, there is an emerging consensus that it’s time to end them.
In 1988, then Governor Michael Dukakis faced a $400 million state budget deficit as he campaigned for President touting the Massachusetts economic “Miracle.” The last thing he wanted to do was raise taxes. The Washington Post quoted then Senate President Bulger as saying “Some of us were telling the governor, ‘If you weren’t aiming at the White House, these meetings wouldn’t have to last ’til 2 a.m.’ .”
In an all-night session just before the Democratic Convention in Atlanta, the legislature passed “An Act Relative to Certain Revenues of the Commonwealth.” The package tweaked the corporate tax code, increased motor vehicle fines, increased bureaucratic filing fees, and with little fanfare added a new fee on people on probation.
In 1988, the country was still on a punishment binge — increasing penalties for various crimes, and filling up prisons. It is unsurprising that the legislature saw fit to add a fee on offenders as a way to help balance the budget.
As originally introduced, the fee was to be set by the court at one to three days wages. A formula based on wages is hard to compute. Ultimately, the fee was adjusted to a fixed total of $65 per month, including a $5 surcharge. By 2016, the probation fee was bringing in over $20 million per year.
When I began practicing defense law in 2001, one of the first things I came to understand was how burdensome probation could be for offenders — they were set up to fail. For all the reasons they ended up in trouble and on probation, many offenders are unemployed. They have to beg or borrow probation fees. Additionally, they have to comply with a myriad of conditions of probation — curfews, drug testing, regular in-person reporting. They get mired in an unsympathetic bureaucratic system that makes it hard for them to comply and they often end up getting incarcerated for “technical violations.”
Over the last decade, many probation professionals have recognized that excessively complex conditions cause probationers to fail and have moved to simplify the probation experience. At the same time, legislators began to understand how they had criminalized poverty — imposing fees on the people least able to pay them.
In 2017, I filed An Act to Reduce the Criminalization of Poverty, and we were able to incorporate many of the ideas from that bill into the big Criminal Justice Reform package we passed in 2018. In the 2018 bill, we eliminated fees on probationers for six months after release from prison. We also made it easier for judges to waive the fees, eliminating the requirement that they explain their decision in writing and clarifying their power to waive the fees to avoid hardship. The annual take from probation fees fell by sixty percent to approximately $8 million per year in 2021.
With state tax revenues coming in well above expectations, Governor Baker proposed various tax cuts in his Fiscal 2023 budget and proposed to fully eliminate probation and parole fees.
I hope that we can adopt the Governor’s proposal as the budget process moves forward. People on probation will be more likely to succeed and most court professionals will be relieved to be out of the business of collecting probation fees from people who can’t afford to pay them.