Senate Criminal Justice Reform Package

Warning: This post is based on superseded information.

View the final conference package here.

The Joint Committee on the Judiciary reported out to the Senate today a broad criminal justice reform package.   The bill has 240 sections and runs to 115 pages.

While sometimes incarceration is necessary, it is almost always harmful.  We need to do everything we can to avoid unnecessary incarceration, to promote healing within prisons and during the re-entry process and to make it easier for people to get back on their feet. This bill speaks to all those goals.  At the same time it supports law enforcement in addressing the most serious crimes.

At the front end of the system, the bill seeks to cut the flow in the “school to prison pipeline” by reducing the use of arrest as a tool of school discipline.  It decriminalizes “disturbing a school assembly.”  Of course, if a disorderly student won’t leave the premises or actually assaults someone, arrest remains available.

The bill also provides that offenders who have not reached the age of 19 will generally be treated as juveniles in the court system, shifting young people of high-school age out of the more punitive adult system.

The bill will make diversion to a program, as an alternative to the criminal process, more available for young adults and for people with addictions. The bill will also support the expansion of restorative justice approaches in appropriate cases.

It creates a framework to support a recent Supreme Judicial Court decision that will prevent people from being incarcerated solely due to their inability to afford bail.  Even brief incarcerations are very disruptive for people who have any life responsibilities. Detention should be reserved for those who really won’t come back to court or who pose a real danger to the public.

Low-level drug dealers are often people with addictions.  The bill repeals minimum mandatory sentences for all retail drug-dealing offenses (except for sales involving minors, which are surprisingly rare).

It repeals existing mandatories for the offense of trafficking over 18 grams of cocaine and the offense of trafficking over 35 grams of cocaine — under the bill, one would have to sell over 100 grams of cocaine to be subject to a mandatory minimum.  Perhaps reflecting a misapplication of enforcement resources, these lower weight cocaine mandatories still account for a high volume of incarceration.

The bill does not repeal mandatory minimums for opiate trafficking and, in fact, provides that trafficking in higher weights of the emerging, highly potent, synthetic opioids like fentanyl should be subject to the same mandatory minimums as the natural opiates heroin and morphine.

Net net, the mandatories that the bill leaves in place govern only 2% of the sentenced drug cases resulting in incarceration (14% of the sentenced-years of incarceration).  We know that roughly 2/3 of drug mandatories are dropped in plea bargaining, so the indirectly affected volume is greater by a factor of roughly three — perhaps 6% of the incarcerated drug cases would continue to be related to mandatories.

The bill introduces a new protection for children of people involved in the criminal justice system, requiring the court to make written findings of necessity before sentencing the primary caretaker of a child to incarceration.

The bill includes a new legal framework that should reduce substantially the use of “restrictive housing” (also known as solitary confinement) within prisons.  Prisoners who currently might face years of segregation for disciplinary breaches will get the programming that they need to calm down and the chance to show that they are ready to return to general population.

The bill would also create the possibility of release of medically incapacitated prisoners.

Finally, and of great importance, the bill includes a number of provisions to reduce the long-term entanglement of people with the criminal justice system — reducing drivers’ license suspensions for non-driving reasons, lowering fees for people involved in the criminal justice system, limiting the use of incarceration to collect fees and fines, and limiting the damage that criminal cases can do to prospects for employment and housing.

The bill will now go through vetting by the Senate Ways and Means Committee and likely hit the Senate Floor at some point in October.  If the Senate approves the bill after debate, the action will then shift to the House and ultimately to a conference process.  There is another moving piece — the bill generated by the Council of State Governments process which is mostly focused on reentry.  That bill was reported out today, but to the House side, and will likely move in parallel with the Senate bill.

Responses to comments, October 16, 6AM

Thanks to all who have weighed in here — I’ve read through all the comments. I’m really heartened by the overall strong support for reform. Will head into the final debate with all of these suggestions in mind. I’ve reopened the thread to further comment now, but I’m also happy to hear from folks directly at william.brownsberger@masenate.gov

Published by Will Brownsberger

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

179 replies on “Senate Criminal Justice Reform Package”

  1. It is all an improvement. I have worked with , and seen, the results of the old laws – not good. People often get the opposite of rehab. in prison as I know you are aware. Learn criminal behavior, more aggressive , have to go to a detox when the leave prison etc. Even (some) people that did bad stuff can get better with counseling and meds. Too many lives get wrecked, incl. the family as collateral damage. It’s a tough call, but some people do need to serve time, in my opinion. Life on streets is not rehab either. If help is available when removed from society, they may benefit. I have unfortunately met some who leave and commit crimes again. Some need to be out of the community, but there are models for this – e.g. Germany.

  2. Thanks Will. Very informative and laudatory. What are some of the downside sof this bill- it seems so positive.

  3. Many good provisions are here. Reforms need to be stronger on solitary as this is the modern era and better tools are available to handle violence in the prison. Also, more programming and education needs to be available as inmates wait years to get into a program. Some are illiterate and are waiting years to learn to read. More needs to be done to give them a chance to succeed.Most return to society so why not have them ready? Also more paroles need to be granted. This allows supervision upon release. Far too few paroles are being granted. This needs to change. But thank you for your work on this.

    1. The reforms on solitary are very strong — they are calculated to support very substantial changes in practice. It is reasonable to hope that requiring frequent reviews of placement will lead to many people being moved to less restrictive settings.

  4. One more huge injustice that needs
    to be remedied is that convicted felons
    and DEPRIVED OF THE RIGHT TO VOTE! This is an outrage; they are still citizens and their voices need to be heard and counted. Their experiences with the judicial system make their input valuable to improving our democracy.
    DEMOCRACY??? Can’t really call
    it that if women, blacks, the poor,
    and now the convicted or incarcerated
    are deprived of a say in how things
    are run.

  5. Hi Will, these all seem like perfectly reasonable, fact-based changes. It seems clear that “the war on drugs” has been lost and that it’s time to treat addiction as the public health problem is really is.

    It’s also clear that our prison systems do little to reform and simply act, as best, as warehouses for people with problems and at worst as a training ground where minor criminals can get acquainted with more serious criminals and learn from the pros. Knowledge they can apply when they are released.

    We incarcerate 700 people per 100K population. In Germany and the Netherlands, this is about 80 per 100K. A magnitude of scale fewer. Is America really 10 times more dangerous than Germany?

    We’re just not thinking this thing through here in the US.

    It sounds (from the summary) like this bill is a step in the right direction.

  6. I value your leadership on this bill. Looks like it addresses the major issues very well. A terrific accomplishment just to bring it to this stage. I have a few questions. Is there a danger that some schools will respond by creating their own quasi-police/judicial forces (if they believe that will be less able to deter students through arrests)? Is there a danger criminal conduct will skew more toward primary caregivers of children because they are perceived to be more exempt from incarceration? Will the inclusion in the juvenile system of older teens who commit serious crimes endanger the younger teens and children in the system?

    1. Good question, Will.

      The bill also includes language requiring that schools develop memoranda of understanding governing use of police. I think it will push in the right direction.

      Re incentives created by the primary caretaker concept, yes . . . this is a concern. A parallel concern would be that people who are in trouble might go to great lengths to become primary caretakers and this could create conflicts between parents. We will need to work through these concerns as the process continues.

      Re the juvenile system, it will be important to segregate older youths from younger kids in programming and this creates a cost factor to the proposal.

  7. Excellent and more than I ever could have hoped. The incarceration of humans has become big business. My family each has a penpal from Pink and Black, and we are made more human by our participation. One of the familie’s penpals just challenged the prison rules banning “books that incite riots” they were just Criminal justice books. Prisoners, in almost all, if not all, states have unlimited access to racist Nazi literature and anything about religion. Religious books often don’t count toward the total books allowed in a cell; usually 4, but my lifer can only have 3.
    The battle was won for the criminal justice books, but we must battle on.
    Claire DeVore and the Weicks.

  8. It appears that a lot of welcome reforms are reflected in this bill. I hope that it can travel through the process and emerge intact. It’s thoughtful reflection on research of what really works and doesn’t is in stark contract to what is going on in Washington. Every day I am thankful for living in Massachusetts. Thank you so much for your work!

  9. Are there provisions for job training, education, mental health counseling while incarcerated not just in reentry circumstances?
    Right direction!

  10. Where are the provisions for the victims of crimes? This bill only address criminals and not the harm they do.
    Why not sell drugs and only keep a small amount on a person at one time. How many times can a criminal do this?

    1. There are a number of points in this bill where the victim perspective is heard. Notably on the issue of collecting restitution — we’ve added a whole new civil collection mechanism. The restorative justice process is also very victim centered.

      We have met with victim’s advocates, taken a number of their suggestions, and we will continue to listen for improvements we can make.

  11. Thanks for posting, Will. I read through your summary and the summary link you included, and am pleased to see that so many needed criminal justice reforms are addressed in this bill. I’m hopeful the bill will pass in the House & Senate relatively intact, as many of these reforms are long overdue & will help create more ‘justice for all.’

  12. Wonderful additions to help scale back our mass incarceration at least on the state level. I don’t know if you talked about this in a early update but will you also think about putting additional money in the public defenders? Public defenders are one of the best ways to lower incarceration but sadly because of the small funds public defenders hardly ever get the right amount of time needed to understand the court case which leads to poor legal advice.

  13. We definitely need more diversion programs instead of criminal process for first time offenders…currently prosecutors are not using this legal tool at all.

    1. I totally agree. They need to put all their money into more long term residential Rehabilitation programs and Facilities rather than overcrowding the prisons with first time offenders, including individuals with addictions and psychological. They need to improve and monitor already existing programs and any newly established.

  14. David,
    We already have significant ways to protect victims, support them, and remunerate them. I know none of that is enough, but those laws are in place.
    It may feel that this only addresses those who have committed crimes; but our point (if I may) is about the inequality of punishment and the inherent bias.
    Sometimes it helps to think about the history of bias toward Italians, Catholics, etc. And the injustice of lacking good legal representation. It’s more about the way our legal system has moved on from proof of crime, to imprisoning for say, pot, which we legalized.
    No one wants to take away victim’s rights or in anyway lessen those tragedies. But as several have said, treatment and education are key issues.
    My brother died of drugs and alcohol. Here in Massachusetts we had a detox on Beacon Street in Somerville, one where the Metropolitan hospital was in Waltham. They’re gone, and were when he died.
    Xo

  15. I believe young men and women in school including through college should be included in the age of responsibility guidelines. There is much stress and pressure even in and during college. They are transitioning from adolescence to adults which is a difficult adjustment in itself. Environmental,social,economic, family and academic issues all play into the mind thinking, actions and reactions of issues faced by many of these students especially while in college. The Government should take into consideration all of these unthought out concerns. There is much pressure in the world today and it has affected students of all ages from high school through college. It is unfair to distinguish age from the mental attitudes and distractions young people I subjected to. I think these individuals should all be included in the ages of responsibility guidelines.

    1. Yes, there are some that would like to see us take the age of criminal majority all the way to 21. That is a huge resource shift though. This bill moves to 19, which is a big deal, and we’ll see how that goes. We’ll be the only state in the country at 19. Most of the others are at 18 as we are now and a few are at younger ages.

  16. Thank you for your hard work in this area. These changes are very important. Studies show we are all safer when the criminal justice system is trusted by citizens to be fair and reasonable. We want it to be effective at keeping our communities safe while offering those who have transgressed the law an opportunity to not just serve time, but get the tools they clearly need for a ‘course correction’.

  17. Thank you, Will, for making this such a high priority. What this work does for families and for those who live in our poorest neighborhoods and families goes without saying but the other huge benefit to me seems to be about efficiencies gained in the business of incarceration. A family member of ours recently got out and can’t stop talking about the private companies that are poised to take over management of the prisons. While it is difficult for me to parse out the pros and cons (and the reality) of such privitizations, that sounds like an interesting issue. Also, the cost savings of addressing our high incarceration rates is something that should appeal to everyone so is probably worth consistent messaging when you discuss these reforms.

    1. For me, it’s not about savings. I’d actually like to see us spend much more per prisoner to provide them a safer more educational environment. More resources would also make the correctional officer job safer and less stressful.

      1. I agree! Let’s provide our prisoners with educational opportunities that will give them the skills necessary for a smoother transition back into the community and what it takes to remain a contributing member.

  18. Does Massachussets have privately run prisons? If so can we make them illegal? Removing the profitability of imprisoning people will go a long way towards keeping folks out of jail.

    Decriminalizing all drugs would also help, making the punishment for drug use rehab instead of jail.

    1. Thanks, Concerned.

      We actually don’t have any privately run prisons. We do have a decentralized system of county correctional facilities run by Sheriffs, which, in some ways, resemble private non-profits in their financial dynamics.

      The county facilities house about half of our prisoners. The rest are in the state Department of Corrections.

    2. I worked for a year for the Department of Correction and emerged from that experience a big fan of privatized prisons. At least when I was there the Correction Officers Union ran everything and the sole issue driving decisions was the convenience of the officers. For instance, I taught school in a two story building and we couldn’t use the second floor (during the night) because the officer taking attendance did not want to climb any stairs. Just one example among many.

      Fred

  19. What is the best way to advocate for passage of this legislation in the senate since there is no bill number? In the house?

  20. Thanks for this helpful summary and for getting this out of committee now. I hope the Senate votes on this soon and that the House doesn’t weaken these reforms. Likewise I hope the Governor’s bill being considered now by the House makes it through the Senate this fall.

    I would like to see stronger changes such as a higher felony larceny threshold, the removal of more mandatory minimum sentences so judges can decide based on sentencing guidelines and the particulars of a case, and a mechanism to spread restorative justice principles through the system but am glad this is a solid comprehensive bill.

  21. Dear Senator Brownsberger: Regarding the repeal of mandatory minimum sentences for drug offenders: I contend that trafficking should not kick in until at least 200 grams of cocaine and heroin – if not 500 grams.

    Despite declines in the prison population and the number of persons sentenced under drug statutes over the past decade and “reforms” in 2012 that reduced mandatory sentences, the continued reliance of Massachusetts on mandatory minimum sentences for drug offenses remains ineffective, unfair, overly severe and racially discriminatory. Also, mandatory minimum sentences negatively affect large numbers of individuals and their families.
    ++Numbers affected: On January 1, 2015 1,371 offenders incarcerated in the DOC were serving for a governing drug offense ; 966 were serving a mandatory minimum sentence. The number of Superior Court drug mandatory incarcerations in FY2013 was 398. In FY2015, 455 drug cases were disposed on mandatory charges.

    ++Overly severe: Massachusetts law uses the verb “traffick” to refer to sale of larger quantities, suggestive of wholesaling. [But], the Massachusetts mandatory minimum sentences are triggered at lower weights than the corresponding mandatory minimums under federal law, which do not kick until the 500 gram level for powder cocaine or the 100 gram level for heroin. At those levels, the federal mandatory minimum is only 5 years — less severe than the state penalty.

    ++Ineffective: The vast majority of offenders serving mandatory minimum sentences were distributors or low level traffickers: 765 or 79%. Trafficking at level 4 represented less than 5% of total mandatory population

    ++Racial and ethnic disparity: The disproportionate impact of drug charges on minorities and the risk of arbitrary application make repeal of Mandatory Minimums [very] important, according to Senator Brownsberger and Chief Justice Gants. In 2013, the latest year available from the Sentencing Commission, persons of color represented 44% of persons convicted of all drug offenses; they represented 75% of those sentenced under mandatory minimums.

    ++Unfair leverage: A recent analysis of Superior Court cases from 2015 by the Sentencing Commission highlights the fact that mandatory minimum drug charges are often dropped in a plea bargain. In fact, only 26% of mandatory minimum drug charges resulted in a conviction as charged — 40% were dropped and 31% were replaced by a lesser-included offense (for example, a trafficking charge could be resolved as a straight distribution charge).

  22. Thank you for all the hard work you and others have put into this bill!

    I hope it will survive the legislative journey intact. It would make such a huge difference!

  23. Thanks as always Will for your work on these issues.

    My question is whether there will be funds allocated for diversion and re-entry programs as part of the bill.

    When we deinstitutionalized the mentally ill they did not provide for enough funds for programs and we ended up with the mentally ill people on the street and homeless.

  24. This sounds very promising. I am especially interested in reducing the amount of time in solitary confinement. I would like to see a specific limit put on this for our state which in my opinion should be 3 months.

  25. Thank you Mr. Brownsberger, for your summary, and support, of this bill.

    I support all of its provisions, and also agree with several of the respondents below, among them Josh Beardsley, Colleen Kirby, and Concerned Citizen.

    I agree with you that we need better educational opportunities for inmates, and also very much abhor the racial injustices that cause so many more people of color to be incarcerated, often for minor offenses – such as having small amounts of drugs in their possession. I am glad the sentencing around this is being addressed in this bill.

    And for these people/those with addictions, where minor amounts of drugs are involved, I fully support the idea of rehabilitation over incarceration. It is very encouraging to see that some towns are now carrying out this policy.

    We do need to see the end of the “school to prison” pipeleine, the incarceration of primary parents for lesser offenses, and the difficulties put on ex-prisoners to return to a normal life after incarceration. Thanks for your support of these very needed reforms, as well as other important reforms,in this bill.

  26. Your thoughtful, comprehensive bill covers many of the the issues needing change in the MA criminal justice system. I thank you.
    Can the bill add a way to obtain money to provide more restorative justice programs, non violent communication instruction and for more basic education programs (K-12) while inmates are doing time?

  27. This is truly a wonderful document. It is a big relief to see so many of the important/key issues included here. It is significant that this document talks about healing rather than using the rhetoric of punishment. I am gratified that this bill is willing to state the imprisonment does ‘harm’ – even if someone needs to be incarcerated. This is very true. We will have to spend enormous social funds just to heal the damage done during incarceration. For young people, there is the ‘arrested development’ – they miss out on the skills they need to be developing during their late teens or twenties – such critical parts of their adult development. The damage to inmates families is devastating. I also aware of the hostile environment in open social areas of the prison. We can avoid many devastating social consequences of incarceration by adopting this bill.

  28. This is a huge step forward, Sen. Brownsberger. The philosophical shift (and shift in dollars) from punishment to investment must be made if we’re going to permanently change the cycle of incarceration. MA can be a leader in this field and show a significant change in outcomes based on reformed policies. Thanks for your leadership.

  29. Raising the age for juveniles to 19 is helpful, although we all realize that the brain does not fully mature until 25. Lawmakers have even proved this when billing young adults for car insurance rates, the rates don’t go down til they reach 25. In order to purchase alcohol and cigarettes, an individual has to be 21. This should also be the case for juveniles when it comes to incarceration, especially when it is the individual’s first time offense. The individual prior to 21 is still going through maturation process, and decision making is sometimes compromised, especially if there were devastating circumstances and experiences prior to the crime. I speak especially for the juveniles over age of 19 who have just a one time offense.

  30. I totally endorse all these elements of criminal justice reform! They are humane, long overdue, and will save lives and money. We spend too much time on retribution, and not enough on human restoration.

  31. We strongly support this important bill. We know that punishment doesn’t work. This bill offers excellent solutions to major problems with our criminal justice system.

    One suggestion: Add support for restorative justice work, which seems to be highly effective.

    Thank you for your leadership on this critical issue.

  32. This bill corrects practices that harm young people in our community. I particularly reducing the penalty and stigma of juvenile offenses and drug possession offenses, which can economically handicap a person for life.

  33. Senator Brownsberger, Thank you for your leadership on comprehensive criminal justice reform. I’m especially happy to see so many important provisions included in addition to the narrow CSG recommendations.

  34. Thank you Senator Brownsberger. It is encouraging to see this amount of movement toward real criminal justice reform.

  35. Hi Senator Brownsberger my name is Bruce Dyer and I am a member of the Arlington Street Church and member of the Social Action Committee there as well as a member of you UU Mass action. I received an email from Lori Kenschaft regarding your efforts in forming this bill. I met you about 3 years ago and testified before the joint committee on the Judiciary. I was the second to last and you may remember I presented myself as giving a unique perspective. I totally support the bill and feel it is a great start. As you are well aware many more issues are yet to be addressed. I am I will contact my legislators both Senator Linda Dorcena Forry and Representative Dan Hunt and express my complete and utter support both for your efforts and the bill itself. If you are able please keep me updated on developments as they happen and if there is anything, ANYTHING I personally can do to Aid your efforts please let me know.

  36. The changes are good, as far as they go. I’d like to see ALL drug related (trafficking) mandatories eliminated.

    I’m opposed to all life sentences for juvenile offenders.

    Please eliminate all fees imposed on indigent criminal defendants, and provide a generous definition of indigent. Fees should only be imposed on those clearly able to pay. We don’t want to incarcerate people for being poor or of limited means.

    RMV should not be used as a justice enforcement tool.

    All forfeitures should go to the general fund, not the Police and DAs.

  37. Thank you for the work you’ve done for this vital issue. Criminal justice reform is one of the primary necessities of our time and I appreciate the importance you’ve placed on it.

  38. Senator Brownsberger – thank you so much for working to expand the reforms originally offered by CSG into this bill with substantial changes to Massachusetts’ outdated criminal legal system. The perspective you offer in the second paragraph of this summary reflects a true public health perspective.

    As a public health professional working in Massachusetts to change our system to be more humane and to decrease inequities, I particularly support the section of the bill that increases sentencing reform for people who are parents of dependent children.

    Thank you.

  39. Thank you for taking on this important work, Senator. Working from the linked summary,
    1. I support the elimination of many Mandatory Minimums. However, are there other especially pernicious and abused controlled substances that can be specifically identified for inclusion in MANDATORY MINIMUMs for the heroin structure instead of just fentanyl. Isn’t “related substances” too vague? Is “similar substances” better?
    2. Get rid of more assessments of court fees and other costs that low income people cannot possibly afford. Why not have income be a factor in making such assessments, as it is now for setting bail?

  40. Thanks for all your work on this — this bill seems like an extremely positive step. I’m not sure that mandatory minimums even for opioids are the right way to tackle the epidemic we’re facing, but overall I think this bill is a not just a small step but a long stride in the right direction. Thanks again for all your work and I hope this makes it through the rest of the legislative process smoothly!

  41. I thank the Judiciary Committee for compiling this broad criminal justice reform bill. It makes so much sense to do it all at once. Seeing this significant step makes the lobbying we have been doing seem worthwhile, and may keep us more engaged.I’m particularly grateful at the ways it will keep young people out of the system.

  42. I am so grateful to you for crafting a vital, yet winnable package. Good for you! I am sending alerts to friends in other parts of Massachusetts to call their senator for support of the bill. Thank you for your hard work.

  43. This is a welcome and pleasant move in the right direction. It is my hope that the bill will become a new law in the very near future. Thanks to the people who worked very hard to give us a reason for hope.

  44. Senator: Some of the steps envisaged here are indeed relevant and important and I commend your good work.
    There is however no reference to your bill proposing changes in the composition of the parole board. What is the status of that legislation?
    And it’s unfortunate that there seems to have been no effort to curb excessive sentencing, notably the imposition of life sentences offering no hope of parole.
    — Nathaniel Harrison, Watertown

  45. My thanks to the Judiciary Committee for its hard work in compiling this broad criminal justice reform bill. UU Mass Action/EMIT will be working hard to see that it and a corresponding bill in the House get enacted.
    I agree with Josh Beardsley below on mandatory minimums. I am disappointed, however, that the use of risk assessment tools is limited to bail reform. John Pfaff in his new book, Locked In, points to so many ways in which these tools can take some of the burden off of prosecutors and judges in considering options such as dismissal, diversion, charging as felony or misdemeanor, plea-bargaining, probation, and incarceration.

    1. Thanks, Dirck.

      Thanks so much for your support.

      There is a lot of energy around risk assessment tools and I’m hopeful that we can get them used more broadly. Much of that happens within the courts and executive branch and does not require legislation. But we will continue to discuss that legislatively.

  46. All of the summary proposals will help alleviate much unnecessary suffering and recidivism while saving millions of dollars in incarceration expenses. The “tough on crime” measures of the past 3 decades have proven counterproductive.

    Do not forget the importance of using the incarceration savings to provide pathways back to productive citizenship (drug rehabilitation, employment training, mental health treatment, preventing homelessness).

    Thank you for your well thought out and carefully crafted proposals.

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