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.
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