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Warning: This post is based on superseded information.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 [email protected]

Published by Will Brownsberger

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

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  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.

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