This post explains the CSG recidivism reduction package that was passed in conjunction with the larger reform package. The good time and completion credit changes in the package will eventually reduce state prison incarceration by 5% and, depending on discretionary policy choices by the department of correction and the parole board, perhaps considerably more.
Beginning in 2016, a working group of Massachusetts officials worked to hammer out a consensus recidivism reduction package based on data developed by a team from the Council on State Governments. This package was filed by the Governor in February 2017. It was enacted without material modification in April 2018 in conjunction with the larger criminal justice package.
The central goals in the recidivism package are to increase participation in prison programming and to improve post-release supervision. The main strategy is to use early release incentives to simultaneously induce program participation and lengthen post-release supervision without pushing out the final date of termination of supervision.
The main changes in the recidivism reduction package apply at the state prison level, not the county house of correction level.
Sentences to the state prison are for a range, not a single number. G.L. c. 279, s. 24 provides:
If a convict is sentenced to the state prison, except as an habitual criminal, the court shall not fix the term of imprisonment, but shall fix a maximum and a minimum term for which he may be imprisoned.
After the convict has served the minimum term, they are eligible for parole. If they are paroled, then their parole supervision terminates on the maximum term. If they are not paroled, then on the maximum term, they must be released. This final date is known as the “wrap date”.
Prisoners are eligible to earn “good time” for work or program participation under G.L. c. 127, s. 129D. Good time is applied to reduce both the minimum and maximum sentence. A prisoner becomes eligible for release to parole supervision when he reaches his minimum sentence as reduced by any good time awards. A prisoner is fully discharged (whether or not he has been paroled) when he reaches his maximum sentence as reduced by any good time awards.
Prior to reform, G.L. c. 127, s. 129D set the good time rate at 5 days per month per activity, with a maximum of 10 days for multiple activities. How much good time a particular inmate earns on their access to programming and work and on their own choices. Based on unpublished 2015 data from the department of corrections, those inmates earning good time in any given month earn approximately 8 days per month. Some inmates cannot earn good time — those serving certain mandatory minimums, including those doing life without parole. Others may earn none for any number of reasons related to their placement or conduct. Typically, about 60% of inmates receive good time in a given month, so the actual average across all prisoners is a little under 5 days per month. The average that is frequently quoted is 5.8 days per month. This is based on the 82% of inmates who earned some time during a period of 8 months in 2015 and excludes inmates who earned no good time during that period (most of whom were likely ineligible).
Section 5 of the recidivism reduction package rewrote Section 129D to increase the per-activity good time rate by 50% from 5 days per month to 7.5 days per month up to a maximum total of 15 days per month for state prisoners. This increase applies only to state prisoners. It is reasonable to expect that if access to programming remains the same, the average good time earned among state prisoners eligible to earn good time will rise from 5.8 days per month to 8.7 days per month.
The population reduction associated with this rate increase is proportional to the average sentence reduction. Computing the reduction in sentence afforded by good time requires a little mathematics. 5 days per month does not mean a 5/30 reduction in sentence, because if the person is released early, then they don’t have the opportunity to earn as much good time. Instead, the sentence must be computed as follows:
So, for example on a 60 month sentence, if a prisoner earns an average of 5 days per month, their wrap date would be computed as:
W = 60 / ( 1 + 5/30 ) = 60 / ( 7/6) = 51.4 months.
Put another way, if the wrap date as a percentage of the sentence is computed as W/S = 1/(1+r/30). So, in the example above:
W/S = 1/(1+r/30) = 6/7 = 85.7%
This 14.3% ( 1 – 85.7% ) reduction at 5 days per month is the same for sentences of any length. The computation applies to parole eligibility date as well as the wrap date.
The current average of 5.8 days per month yields a 16% reduction; the new average of 8.7 days per month yields a 22% reduction. This would suggest a 6% population reduction due to the rate increase (since population is proportional to sentence length) among the roughly 82% of inmates who earn good time. Overall, we can expect a roughly 5% reduction once the rate increases take their full effect.
Note that prisoners will only get an increase in the good time that they earn after January 13, 2019; good time that they have already earned will not be adjusted, so it will take several years for this population reduction to phase in.
Under current law, an inmate may receive a credit of 10 days for completing a program that lasts more than six months in length. This credit operates to reduce both minimum and maximum sentences in the same way that good time does.
To encourage program participation by state prisoners, section 5 of the package increases the possible completion credit for state prisoners to 90 days and removes for them (but not for House of Correction prisoners) the six month length requirement. It caps the total completion credit awarded at 17.5% of the original maximum sentence. Consistent with the theory that prisoners need more time with support in the community to succeed, the new credits (the 80 days above and beyond the existing 10 day credit) only reduce the parole eligibility date, not the wrap date. So the actual impact of this policy change depends not only on the choices of the prisoner and the availability of programming, but also on the discretion of the commissioner of correction in awarding the credits and on the discretion of the parole board in paroling prisoners.
According to data from the CSG study (see page 27 of the fourth CSG presentation) currently only about 1/3 of prisoners who are released are released to parole. So, even if all of the parolees received the maximum reduction, the impact on the parole eligible prison population would be 1/3 of 17.5%. And, of course, some prisoners are not parole eligible — lifers are approximately 20% of the state prison population (some lifers will be parole eligible, but in the good time data we have, only 82% of prisoners were able to earn good time). This is a rough calculation, omitting many possible refinements (notably a better computation of what share of prisoners is parole eligibile), but it seems safe to say that under current parole practice, the population reduction due to the completion credit changes is likely to be something considerably under 5%. The reduction could be greater if parole policies change — parole rates have fluctuated considerably under different administrations.
This new completion credit becomes available on January 13, 2019.
Section 7 of the recidivism reduction package adds a new section 130B to chapter 127. This section injects a third significant date, called the “release to supervision” date, into sentence planning for state prisoners. The release to supervision date lies between the minimum and the maximum sentence dates.
As noted above, the new completion credits do not reduce the maximum date. However, the release to supervision date is computed by subtracting the completion credits from the maximum date (as adjusted by good time). The prisoner must be paroled on the “release to supervision” date, regardless of whether the parole board feels that the prisoner “will live and remain at liberty without violating the law . . .”. The prisoner will then remain on parole until their wrap date. The new right to release does not apply to credits totalling under 30 days and is also subject to the requirement that the prisoner submit a parole plan showing where they will live and that they have a job waiting for them (or have not been able to find a job).
This new construct is intended to give more prisoners transitional assistance on parole as they return to the community.
The good time and completion credit changes apply to all prisoners except those excluded by the terms of their sentence. Chapter 94C, Section 32H previously prohibited prisoners serving mandatory minimums for certain drug offenses from receiving good time until or becoming parole eligible until they have served their mandatory minimum term.
Sections 1 through 3 of the package are intended give some of these offenders the ability earn good time and completion credits. The change does not apply to Class A (opioid) drug offenders or drug offenders using violence/guns, selling to minors or directing others. Additionally, the offenders who will be newly eligible for good time are eligible under the limiting rules that their good time does begin to accrue against their maximum sentence until they have served their minimum sentence. However, their good time and completion credits do accrue immediately to reduce the minimum sentence.
The theory of this compromise is that the eligible offenders may be able to get out earlier, but their release will be to a period of parole supervision. The change is a step in the right direction in that offenders sentenced to, for example 5 years to 5 years and a day will now be able to participate in programs and open up a window between their minimum and maximum sentences during which they can benefit from supervised release. The population reduction resulting from these changes will be limited.
These new rules apply only to eligible offenses committed after the effective date of this act — January 13, 2019. Since the main reform package repeals many minimum mandatories, the only eligible drug offenders will be marijuana and cocaine trafficking (higher weight) offenders. Most of the remaining rug mandatories pertain to opiates or minor and offenders serving these sentences will not be eligible..
Under previous law, prisoners who were eager to reach their final wrap date had some disincentive to take parole — if they remained in prison, they could earn good time that would accelerate their wrap date, but there was no such opportunity while they were on parole. New Section 130C, added by section 7 of the package, allows the parole board to give “compliance credits” of up to 15 days per month to paroled state prisoners. These compliance credits will apply in the same manner as earned good time to advance the wrap date. This is consistent with the goal of the reforms to give more prisoners access to transitional assistance.
This provision does not apply to prisoners granted parole prior to the effective date of the act — January 13, 2019.
Section 15 of the package adds a formal incentive for compliance with the conditions of probation. It is not uncommon for judges to grant early discharge to probationers who have been consistently in compliance with the terms of their probation. New Section 87A of Chapter 276 creates a mechanism for automatically awarding 5 days per month of compliance credit after the first year of probation and 10 days after two years. Credits can be revoked if probationers violate their probation. The mathematics of these credits are the same as for good time credits. They are only relevant in the case of a person on long term probation. As an example, using the mathematics above, a person placed on a five year term of probation would be eligible for discharge after 4 years and 45 days if their record were spotless. The new credits are not available to sex offenders.
This provision does not apply to prisoners placed on probation prior to the effective date of the act — January 13, 2019.
Sections 8 through 15 of the package are intended to allow people awaiting trial access to the existing community corrections centers that are currently limited only to sentenced people. The concept is to reduce pre-trial incarceration by giving services to people who would otherwise be held in prison.
While the resources and management capacity of the community corrections programs will be used, the intention is to create separate non-punitive programming. The new definition added by Section 8 provides that:
[P]retrial service programs shall be a separate track of programming from community correction programs offered under section 3 of this chapter; provided further, that sanctions under said section 3 shall not be applicable to the pretrial service program track.
Additionally, participation is this programming is not to be required for the general rehabilitation of the person. The court’s ability to order participation is derived only from the court’s pre-trial power to assure the defendant’s return to court, or, if necessary findings have been made pursuant to Chapter 276, Section 58A to protect the community.
Any conditions should be imposed to ensure return of the defendant to court or, where permitted by law, to assure the safety of any person or the community.
New Section 3A of Chapter 211F creates three channels through people on pre-trial status may enter pretrial services programs: (1) By order or the court subject to the limitations above; (2) by agreement of the defendant if the defendant has been placed on pre-trial probation; (3) at the suggestion of the sheriff who is holding the person pre-trial, with the approval of the court and the consent of the person and notice to any victim. The first two of these three channels are open to defendants charged after January 13, 2019. The third channel will be available to all persons held in jail on or after January 13, 2019.
Section 4 of the package requires the commissioner of corrections to consult with the parole board in developing an individualized plan to meet the needs of each prisoner at the time the prisoner is committed.
Subsection (f) of new Section 130B added by section 7 of the package includes new language requiring the commissioner of corrections generally to provide all information in his possession about a prisoner to the parole board to support decision-making. It is language of general applicability to parole decisions, not just decisions related to the “release to supervision” date defined in that section.
Return to reform overview.
Lee J. Gartenberg, Director Of Inmate Legal Services at the Middlesex Sheriff’s Office, has prepared a valuable glossary of sentencing terms which highlights the changes made by the April 2018 reform laws. View the glossary here.
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