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Warning: This post is based on superseded information.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. Thank you Senator Brownsberger for your important work as reflected in this bill. I applaud your efforts and hard work and am encouraged to see many of the provisions that I feel are critical to justice reform included such as the elimination of mandatory minimums for certain drug offenses (Although I would have liked to have seen the elimination of mandatory minimums for all drug offenses), bail reform, provisions to reduce the use of solitary confinement, and an effort to reduce juvenile incarceration.

    I hope the House will come out with an equally ambitious bill. I have communicated my support to my representative.

    Onward!

  2. I am so glad that this bill is here and I whole heartedly support all of it! I have spent time getting to understand the kind of system we have created and there are so many things that need change. This is a very good start and I thank you for bringing this bill to the floor. Massachusetts should be a leader in change for the criminal justice system which has been so stacked against the minority and poor populations and that is not at all working toward rehabilitation. Save our citizens and reform what is wrong. Thank you!!!!

  3. I ran this by a friend who is involved in criminal justice reform in Florida, and here are her comments (I only read your summary, above, so you might have addressed these in the bill already, but they sounded like some good ideas):

    It would be nice to see some specific language about what will be done to help returning citizens once they are released from prison. Some ideas: training for work in prison, obtaining state ID’s so they can work, having employers interview people for work that are about to be released. providing temporary lodging at low rates until they are on their feet, providing counseling, group support discussions and support.

  4. Thank you for moving this legislation forward. My natural impulse is towards punishment; however, it doesn’t work, it’s unfairly applied, it destroys neighborhoods and families, and costs a fortune. It would be much better to remove financial and other incentives to incarcerate, use tracking devices for non-violent offenders, and investing in programs that help those reentering or at-risk keep clean and engaged. Incarceration is so much more expensive than schooling and employment.

  5. Thank you so much for this bill. I agree with every direction you have pursued and will do as much as I can to support this.
    I understand that politics is the art of the possible. On the other hand, I believe it’s important to keep our eyes on the prize. I look forward to the day when we can return to the idea that the convicted person, on leaving incarceration, probation or parole, has paid his/her debt to society -NO entanglements to make the person a permanent pariah and second class citizen.
    Also, there are very few people selling alcohol on the streets. That’s because it’s cheaper and much safer to buy it in a liquor store. That should be the goal – liquor store, pharmacy – of our regulation of drugs. The black market and all it’s dangers and criminal justice ramifications would be gone.
    I’m sorry that innocence issues didn’t make it into the bill – issues like equal funding by prosecution and defense for high-profile cases, scientific methods of witness identification, reforms in the use of jailhouse snitches

  6. Thank you for your important work on this well crafted and judicious bill. I especially appreciate the attention you have given to the children of our commonwealth, both the children of people involved with the criminal justice system and the emphasis on mitigating the wholly inequitable school to prison pipeline. There is much within this bill that is laudable and I hope it moves ahead with the necessary traction.

  7. Thank you, Senator Brownsberger, for bringing forward this bill. We are in desperate need of criminal justice reform. This bill has the potential to heal deep societal wounds and to support people in being better able to contribute their personal assets as generative members of communities.

  8. I am currently working on a review of the literature about restorative justice. I have two suggestions for you to consider regarding the restorative justice proposal on pages 104-107 of your criminal justice reform package: (1) There are financial costs to running restorative justice programs, and the inclusion in this bill of an express commitment to state financial support of such programs would be critical to assuring program feasibility and sustainability; (2) Studies of referrals to restorative justice in the criminal context in the United Kingdom indicate that referrals to restorative justice interventions are much lower when such referrals are left to the discretion of the criminal justice system than when they are statutorily mandated – this finding might be instructive for the Massachusetts context (see Umbreit, M. S. (1998). Restorative justice through victim-offender mediation: A multi-site assessment. Western Criminology Review, 1:1. Available at http://wcr.sonoma.edu/v1n1/umbreit.html).

    1. Thank you for these points. Unfortunately, we can’t put funding in this bill, but I agree it is desirable. As to mandating it, the approach here is to make it voluntary for both sides — the perception being that it only really works if it is voluntary, although I’m sure participation would be higher if it were mandated. Also, not sure when one would mandate it.

  9. As to solitary reform, I am sure that you know that Massachusetts is near the top of all states for inmate suicide. The Bureau of Justice Statistics say the national average is 16/ 100,000 but in Massachusetts it is 32/ 100,000. This is double the national average despite out being one of the lowest in incarceration rates. I wonder how many may have spent time in solitary and if so, could this be why our suicide rate among inmates is so high ? Should we be asking this question? One of our most recent suicide, Aron Hernandez , spent time in solitary. How many others have ?

  10. A good start in the right direction. Unnecessary incarceration does not improve the community

  11. I’m particularly fond of this item:

    “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.”

  12. Well done. As a teacher, I especially appreciate: “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.” Children of all ages are vulnerable, and when they are separated from their parent or caretaker, we see this reflected in their behavior and academic performance. This in turn, has grave repercussions as they become independent adults.

  13. I am really pleased to see the emphasis on rehabilitation and restorative justice in this bill. I support the repeal of many mandatory minimum sentences and raising the age for juveniles. This looks to be a very good bill and I hope it will be enacted into law.

  14. Thank you for shepherding this bill. It represents a good start. As a volunteer with the Mass Bail Fund, I have been especially concerned with how cash bail disproportionally affects people of color and the poor. I have concerns about how probation will be used but I also recognize that this is a work in process, and will need continual refinement.

    My hope is that we can move further to decriminalize drugs and provide more opportunities for diversion and treatment both in prison and without.

    I also am excited by the possibility of more opportunities for restorative justice.

    I did not notice reforms related to parole; our justice system currently emphasizes punishment and retribution and this affects parole outcomes. I would like to see prisoners have more influence in demonstrating rehabilitation in the parole process.

  15. Illuminate mandatory minimums. Raise the age of consideration as an adult from 19 to 21. Years

  16. Thank you for your work on this important bill, which is a welcome step toward much needed criminal justice reform. Three areas of particular interest:

    ~ “reducing the use of arrest as a tool of school discipline”.
    Also important in this effort:
    1. mandating de-escalation training for
    law enforcement
    2. clear statements on role of law enforcement in schools

    ~ preventing “people from being incarcerated solely due to their inability to afford bail”

    ~ reducing the use of solitary confinement.

  17. Thanks for your work on this bill. If enacted it will be provide great strides toward justice reform.

  18. Thank you for your work on this bill! It is important to reduce the inhumane practice of “restrictive housing” (solitary confinement). The psychological impacts are extreme and it should not be used lightly.

  19. Thank you for all the hard work and courage which went into this bill.
    As a social worker I saw how my low-income clients were repeatedly tripped up and blocked from achieving a healthy family life and housing and job security by badly-conceived laws and badly-executed policing. Taxpayer-supported Medicaid paid me to support them; a tax-supported “justice” system repeatedly pulled the rug from under them.
    A really comprehensive bill – so unusual in MA. But I still hope that Solitary confinement, by whatever name, can be limited to 10 days, beyond which it can become permanently neurologically damaging; that cash bail and parole./probation fees which overwhelmingly disadvantages the poor and minorities ca be eliminated, as in the D.C., that alternative sentencing for caretaking parents can become routine along with funding for expansion of family and treatment facilities with proven track records. All of this will make greater Boston a safer place for all of us.

  20. Dear Senator Brownsberger,
    Thank you for your work on this bell. I strongly support comprehensive criminal justice reform.
    Best regards,
    Amy

  21. I am writing to express my support for the Senate Criminal Justice Reform Bill. I am especially pleased to see the number of proposed improvements to the juvenile criminal justice laws. In addition I fully support the provisions to reduce the long-term entanglement of people with the criminal justice system and would favor the elimination of fees for required parole and probation appointment, and the elimination of incarceration to collect these fees and fines.

  22. Thanks for your work on this, Senator. It is very heartening to see progress on criminal justice reform. Our present system is badly broken and this acknowledges the brokenness and begins to right the wrongs. I’m praying that restorative justice will become part of one of the bills coming out of this session!

  23. Thank you for this summary and for this bill. I support it and want this legislation to move forward.

  24. The proposed changes are reasonable. I support the reform bill.

    To prevent recidivism, it would help if prisoners were allowed to build up a nest egg while in prison to receive upon release. One sheriff offered free labor by prisoners to build Trump’s wall in Mexico. To avoid continuing a tradition of slave labor, I recommend paying prisoners for work that they do. The accumulated funds will provide ex-convicts with options when they are finally released, and reduce the need to turn to crime.

  25. Thanks for this summary and the section by section explanations. There are a lot of great things in this bill that I hope will stay in the bill. I am glad to see that there is a reduction in the use of mandatory minimums for some drug crimes although it would be better to get rid of more so judges can sentence based on sentencing guidelines and the particulars of the case. I am glad to see medical parole, solitary restrictions (although would have liked to see a review before 6 months), an increase in the felony larceny threshold, encouragement of the use of restorative justice and diversion, some pre-trial and bail reform, some reduction in fines and fees especially for those who are indigent. I am also glad to see shorter times for sealing and expungement especially for juveniles and those falsely accused to aid in CORI reforms, encouragement to take primary caretaker status into account and the elimination of various collateral consequences. I would have liked to see parole board reforms and raising the age somewhat higher but 19 is a good start.

    I do hope the State House comes up with a final bill that lowers our incarceration rate, is transparent about who is incarcerated, for how long, and in what conditions, and makes sure not to incarcerate those who would be better served by mental health treatment or substance abuse treatment. And make sure that racial disparities are addressed and analyzed for bias against certain groups or neighborhoods.

    Thanks for this great effort and I will be doing what I can to support passing the strongest criminal reform bill this fall.

  26. Good to see the coverage of such a crucial bill on the front page of the Boston Globe this morning.

  27. these are all common sense and humane changes – of what earthly use is it to stockpile juveniles in prison where they interact for long periods with others who have behavioral disturbances, such as mental health problems?

    getting rid of mandatories is a positive mood – why do we need judges if we have mandatories?

    focus on the family is the right thing to do – just as illness is a family problem, so is incarceration…for example, our latest mass shooter is the son of an incarcerated father…had there been intervention with this individual who knows what salutory effect it may have had?

    review and revision is long overdue – i commend Will Brownsberger

  28. I am so pleased and grateful for this courageous legislation! The unfairness of the criminal justice system as it currently stands is unacceptable, and ambitious and sweeping legislation is required to right the wrongs. Let’s use our tax dollars to do good and not harm! I fully support this bill.

  29. I am so excited by the positive steps in this bill that will cut down on incarceration of 18-year-olds, addicts, and those affected by poverty. I’m especially relieved to know that young drug offenders or behaviorally disabled will have a chance to go to programs designed to help them work through their issues and get on a better path to responsible citizenship Thank you!!!

  30. This is a wonderful step to improve true justice in our Commonwealth. I’m especially relieved to know that young drug offenders or behaviorally disabled will have a chance to go to programs designed to help them work through their issues and get on a better path to responsible citizenship Thank you!!!

  31. I worked in criminal justice nonprofits for a long time. So many things we talked about over and over, are in this summary. I am grateful to live in Mass. where people actually talk about how lives are affected by legislation, past legislation, and the many inconsistencies in departmental practices at all levels. Nice to feel a little hope.

  32. Thank you for all the thought you’ve put into this bill and for championing criminal justice reform over the years. I fully support these measures and will be encouraging my rep, Cory Atkins, to support them as well.

  33. Thank you for your work on this bill. It includes many provisions that would go a long way to reducing the number of people who are under state control. I wish that the age for juvenile offenders were higher – 20 or 21 – but I am pleased about the proposal to raise it to 19. I am very glad to see the proposed curbing of mandatory minimum sentences. I am very glad to see the changes in solitary confinement rules, and the extra protections for primary caregivers. Our society has done so much wrong in terms of justice for those accused of a crime. I hope the House bill will mirror this one and move reform in a positive direction.

  34. This is an impressive job and the best measure to come before the legislature in the 24 years I’ve been involved with criminal justice reform. I was disappointed that you and the committee were not able to come up with more clear restrictions on the use of solitary. I know you visited Maine, which, as the PBS Documentary on Frontline has shown, has dramatically reduced their use of solitary, but I don’t think leaving so much discretion in the hands of a system organized around punishment and control will yield results.

    I welcome all the important changes for juveniles, but there is one important one that you omitted. We should not be able to put juvenile offenders, struggling with their identity and sexuality, on the sex offender registry. There is very little relationship between the kinds of juvenile behaviors involving sexuality and adult predators. Once you are on the Sex Offender Registry, you are tarred for life, unable to pursue an education, get a job, get housing. For both juveniles and adults, this is a neglected area for reformers.

    I hope this bill or something like it will pass, but there is plenty more for us, with your leadership, to work on.

  35. In terms of the statistical analysis of the effect of the changes to the mandatory minimum’s for drug offenses with the bill, the 2/3 which are referred to as being dropped in plea bargaining cannot be taken off the tally of the bill’s effect as DA’s use the fear of mandatory minimums higher jail time to get people to agree to plea bargaining so that a true accounting would have to include that effect. It is not likely that the data is accessible making an accurate analysis unlikely. I assume that the effect is actually significantly greater than the stated 6%

    1. Steve, you are absolutely right that the mandatories have a large impact through the plea bargaining process, but you are turning the math around. Without any allowance for plea bargaining the mandatories not repealed by the bill account for 2% of the case flow as sentenced. The plea bargaining inflates it by a factor of three (ish!) and that is accounted for — that’s how we get up to the 6%.

  36. It sounds like a great bill! I’m wondering what was sacrificed, where the bill compromised, and how whatever was given up can be achieved (solitary confinement? I know that some Watertown activists were hoping for change in that regard…). I’m not too experienced or knowledgable in the area, but everything above seems like a good change.

  37. Dear Senator Brownsberger:
    I am writing to reiterate my strong support for this bill, along with my hope that as the bill progresses the treatment of mandatory minimums can be strengthened. As can be discerned from yesterday’s Globe article, DA opposition will continue to be a big problem. But, as I am sure you know, without repeal of all low level drug substances, people who are users or addicts can still get caught up in the mandatory minimum drug trafficking. Thank you for all of your hard work on this bill.
    Margaret Drury

  38. Thank you for your work on this broad based bill which is a positive step towards broad based criminal justice reform.

  39. Thank you so much for proposing such rational comprehensive reform, especially for addressing destructive drug possession penalties and supporting the restorative justice option in appropriate cases. I’m a psychologist and expert in psychological trauma, and in my work with traumatized and often addicted victims and perpetrators of violence, I see how much punitive criminal approaches have only perpetuated and exacerbated trauma, addiction and violence in many families and communities. Thank you again for pushing things in a new direction.

  40. Dear Senator, Thank you for all your work. Could you please tell me where I can read the entire bill so that I can adequately comment on solitary confinement, a topic in which I am versed and about which I am passionate. Thank you.
    Jeannette Hanlon, LICSW, M.Div.
    Founder, Partakers, Inc.
    Former state prison system social worker

  41. So what happens to someone who sells 100 grams of cocaine or under. Anything? If they sell near a school anything?

  42. Will,

    This is wonderful.
    I agree with all of the provisions.
    I have worked in an alternative high school and have seen the heartbreaking effects of lack of these critical reforms.

    Bless you for all you are doing to help.

    Cathy Couture

  43. Senator Brownsberger,

    Thank you for this summary. I have been following the individual bills in this package and hoping they would pass. They are in line with the solutions recommended by experts who study the problems in our criminal justice system. Other states have already implemented similar bills with great success. They have not only reduced the rates of incarceration and recidivism but have saved the taxpayers billions of dollars. It’s time for Massachusetts to join the other states as a leader in addressing criminal justice problems with progressive, evidence based measures that really work for offenders as well as for society.

    Sincerely,
    Janet Cason

  44. This bill is a significant step forward to bring Massachusetts into the Criminal Justice 21st Century. I applaud your work putting this together, and the way you consulted a vast array of stakeholders from all parts of the political spectrum, including GBIO. I also appreciate your transparency and your posting of both the sections of the legislation as well as your reasons for including them.

    I want to concur with other commenters that the sections dealing with changes to the Mandatory Minimum sentencing structure need further work. At the end of the day, important drug traffickers will not do less time if Mandatory Minimum sentencing is repealed. What will happen is that the expected checks and balances will be restored so that judges, and not prosecutors, will decide sentences based on the evidence and circumstances of each case. Communities of Color have known for decades how devastating this problem is for their communities, and everyone should understand that we are all made less safe and poorer by leaving the status quo.

    I hope the House will take a bolder stand to repeal all Mandatory Minimum drug sentences, and that you will lead the Senate to concur with such a compromise bill.

    _Alan Epstein

    Watertown Resident,
    Greater Boston Interfaith Organization (GBIO) Criminal Justice Task Force

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