One Tough Vote

I took a tough vote last night that many might, at first glance, disagree with.  I write to explain my vote.

I voted against the proposed “three-strikes” violent crime bill.   Criminal justice is not baseball.  There is nothing magic about the number three.  Some offenders don’t deserve a second chance at all.   Others should be allowed to keep trying to get life right.  From where we sit, high on Beacon Hill, we aren’t in a very good position to distinguish among them.

We cannot escape the fact that public safety depends not only on laws, but also on the responsible actions of those charged with critical decisions.  Governor Patrick got it right when he fired everyone involved in the release of Domenic Cinelli, who had gone on to murder a Woburn police officer, and sought to rebuild a more responsible parole board.

No one can disagree with the intention of the bill — to prevent the release of dangerous criminals who will continue to prey on the public.  And no one can disagree that the system has failed gravely and unacceptably in some instances.

However, the bill we passed will actually defeat the goal of incarcerating more violent offenders, because it sweeps in too many lesser offenders.  Prison is an expensive and finite resource —  many prisons are already crowded and if with special rules we force them to hold lesser offenders, we effectively force them to release more violent offenders who don’t happen to fall within those rules.

The draft bill came before us with only one day for review.  I worked with my colleagues  to target it more sharply, but unfortunately, in the final minutes before the vote, it became clear to me that even the amended bill was deeply flawed.

The debate about the bill focused on new maximum mandatory sentences for the rare habitual violent offenders — the people thrice convicted of crimes like rape, home invasion, and armed robbery.   But the bill also made a subtle but dramatic change to the existing habitual offender statute which applies much more broadly.

Even as that feature of the bill dawned on me, I was unsure of the correct vote — I absolutely want to protect future victims.  I did not make my final decision until the very end of the debate, in fact until the time for voting had almost expired.  While I deliberated to the last possible moment, I actually covered my eyes to avoid looking at how others were voting — I didn’t want be tempted to make a political decision.

After voting, I inspected the final tally and found that I was one of only four white legislators to vote against the bill, with the other eight ‘no’ votes coming from people of color representing inner city districts.  The vote was 142 to 12 in favor.

With the benefit of a night’s sleep and some more reading, I do have confidence that I made the right decision.  The existing habitual offender statute states that someone who has been twice sentenced to a state prison for a term of three or more years will be sentenced to the maximum term for any third felony that they commit.  The bill we approved last night will eliminate the three year requirement, so that an offender who had twice served any sentence in state prison is liable for the maximum penalty on their third strike.

In high crime urban areas, where crime is sometimes perceived as a routine alternative to unemployment, this rule has the potential to greatly increase the number of young potentially salvageable men doing life sentences.  For example, under the bill as amended, a person twice convicted of retailing cocaine and twice sentenced to state prison who was then convicted of an unarmed robbery would receive a mandatory life sentence.  Some unarmed robberies are not serious offenses — any forcible grab of money or property is an unarmed robbery.  A young man could turn 21 in prison doing life without ever having committed a crime of distinctive violence.  That outcome wastes scarce prison resources that could, for example, be used to implement a longer sentence for a more violent offender who has only been caught once.

I cannot rule out voting for an improved version of the bill when it comes out of conference, but I’m not sure that a good version can be written.  Our criminal code provides very wide sentencing ranges for many offenses, reflecting the fact that a wide range of conduct can fit with in the words of the offense definitions.  If we take away discretion without reforming more of the criminal code, unintended consequences may be inevitable.

Published by Will Brownsberger

Will Brownsberger is State Senator from the Second Suffolk and Middlesex District.

25 replies on “One Tough Vote”

  1. Will,
    I always appreciate your thoughtfulness and transparency. Having heard my friend and colleague, the late federal district Judge Reginald Lindsay, speak about the federal mandatory sentencing rules, I also agree with your conclusion. Too many bad outcomes can result from taking away judicial discretion in sentencing. –Helen G.

  2. Sentencing people on a one size fits all basis is not consistent with justice. The old adage that the punishment should fit the crime is still valid. Added to this a Three Strikes program does not take into account some of the new and innovative programs including those run by courts, that have been developed for dealing with minors and others; many of these of these have been shown success in turning people around. They also cost less.

    Cost is a factor here. As California’s experience indicates, three strikes laws put more people in jail for longer periods and cost the state a lot more money. Overcrowding is another issue and indeed California is under court order to decrease overcrowding because it results in inhumane treatment of the incercerated.

    There is no reason to think that Massachusetts would fare any better than California has with a Three Strikes Law be that in terms of costs, in terms of humane conditions or in terms of making the punishment fit the crime.

  3. I only learned about this law being debated with your mail. And I am so relieved by its results.
    At a time where legislations triggered by fear seems popular, it is a relief to see a few stands for rationality and true long-term public interest. Will, thank you for your stand and the clear presentation of your rationale.

  4. Thank you for your thoughtful analysis of this issue, and for the courage to cast a vote that could so easily be misinterpreted.

    I agree with your reasoning. The bill clearly needs work.

  5. I agree with your vote, both for the reasons you stated, and for worries about the unintended consequences of 3-strikes legislation in other states, and because I am increasingly convinced that zero-tolerance-get-tough legislation is a bad idea.

    And in addition, crime has been trending down for years anyhow. We may hear about it more often because of fashions in news reporting and internet aggregation (if it bleeds, it leads), but actually, it’s down. Whatever we’re doing now seems to be working pretty well.

  6. Thank you for following your moral compass, as you always do. It is sad that this knee-jerk bill passed by 142-12. Will the house now vote to increase funding for the courts and the correctional system, or will this become another unfunded mandate? Is there a chance the Governor could veto it? If signed into law, could it be successfully challenged on constitutional grounds?

  7. I very much appreciate your reasoning here and you have represented this constituent well by voting as you did. I’m glad to have such a thoughtful representative.

  8. Thank you for following your judgement with courage in this vote! I can see why supporting this bill would seem like a popularly supported choice, but as you have rightly pointed out, the bill takes a far too simple view of the matter.

  9. This was a really important vote, and I deeply appreciate your addressing it so conscientiously, and in my view with compelling reasoning. I’m sure this was a hard vote politically, especially in this electoral season, but it makes me proud to have you as our representative (and, I hope, future senator).

  10. Thank you for being among the small minority who opposed this bill. I am deeply concerned about the high rates of incarceration in our country and believe this to be a result of the influence of the prison industrial complex, which profits greatly from such sentencing laws, rather than any true danger to or concern for the public. Once again, I am grateful to be represented by someone with your integrity and thoughtfulness.

  11. Good job. Too many bills like this are poorly thought out and create unforeseen consequences. H.408 allows bicyclists who run red lights, causing accidents to still sue the unlucky drivers who hit them, for example. Lawyers get to collect 1/3 of awards for both victims and causers or accidents! Likewise, mandatory use of child car and booster seats has put more big SUVs on roads for ease of using these seats.

    Prisons are not the industry we want to grow here as in Texas. Its shameful that our free country has the most people in the world locked up, half for drug offenses. Alcohol prohibition didn’t work and created organized crime and other problems for social ills not solved by incarceration. A few bad judges happen, and the solution is to make getting rid of them easier and faster.

    1. Thanks, Mark. I agree with you about House 408 — it needs lots of work. But it is at a much earlier stage of the process. If it moves to the floor, it will only be after the concerns you raise have been addressed.

  12. You were right. Having recently moved from California, the state that gained nothing but notoriously overcrowded prisons after it started the three-strikes wave of irrationality, I wouldn’t consider this issue to be even close. I am dismayed that it passed so overwhelmingly in supposedly liberal Massachusetts.

  13. Will,

    I think that you cast the right vote. The “3 strikes” rule is too rigid; the consequences of the rule will result in many persons being incarcerated for long periods of time that should not be there in the first place, or that should be serving only short sentences. Each case should be decided on its own merits.

  14. I also hadn’t heard of this bill until this post. How is it not front page of the Globe? Without knowing too much about this law in particular, I’m glad you voted as you did. Three strike laws have all the problems that you and others here have pointed out, and if this law is anything like California’s, I would strongly oppose it.

  15. I am so glad you voted against this bill. Three strikes would have a devastating effect on communities of color especially, but on all of us.

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