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.
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]
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