The movement to reform criminal justice

I spent a Saturday in early April in Denver with legislators from across the country at a meeting about criminal justice reform convened by the National Conference of State Legislatures. The chance to hear what people are doing and thinking in other states was worth the plane time.

The country is in the middle of a national attitude change on criminal justice issues. One senior republican state senator from a large eastern state talked about his change of direction after decades of passing tough-on-crime bills. During his long tenure, the prison population in his state grew six-fold. During roughly the same period, the prison population in Massachusetts grew five-fold — most of that growth occurred between 1974 and 1992.

I spent several days last summer reading through all the major crime legislation that Massachusetts passed over the last few decades. Every few years, when some new horror hit the front pages, the legislature responded with legislation targeting the undesirable behavior with new penalties — drunk driving, child pornography, drug dealing, assaults on the elderly. But when I compared the legislative changes with statistics on the prison population, I really could not correlate the law changes with prison growth — much of the growth occurred in categories of crime that have always been subject to severe penalties — larceny, rape, robbery, battery, murder.

Crime did rise dramatically from 1960 to 1990 and that underlying reality explains much of the rise in incarceration. But in many categories, crime peaked and began to decline before the prison population reached its current levels. Some of the growth and much of the continued elevation of the prison population in Massachusetts has likely been due to changes in discretionary decision-making by police officers, prosecutors, judges, defense attorneys, probation and parole officers. People got fed up with crime in the 70s and 80s and the whole system responded.

Now, there is an increasing sense that we have gone too far. People do not heal more or learn more by staying in prison longer. Nor, in fact are they chastened or frightened by punishment. Long prison terms simply do not change behavior in a positive way. And if we make it harder for convicts to get jobs and housing after they get out, they are more likely to fail and end up back in prison.

In Denver yesterday, legislative leaders in both parties from across the country talked about the changes they are making that will shorten prison terms and make it easier for people to get back on their feet after they make mistakes. We recognized, however, that, just as during the previous decades of growth in incarceration, many of the changes will be made not by legislators but by people on the front lines.

In fact, people on the front lines are responding already. Police in many communities in Massachusetts are taking interest in mental health and substance abuse treatment and in other alternatives to prosecution. Judges are creating specialty courts focused on meeting the needs that drive people to crime, notably drug courts. Our correctional leaders — sheriffs, state prison officials and probation and parole leaders are also speaking the language of rehabilitation and seeking to help offenders re-enter society successfully.

I’m very hopeful that together, we can make our communities safer by “lifting people up instead of locking people up.” In theory, we could go too far and lose sight of the need to incarcerate the most dangerous repeat offenders — the people we are really scared of. But we are a long way from that at this stage.

Web Resources on Criminal Justice Reform

For more discussion of these issues and my response to some who critized this piece, please see this follow on piece.

Published by Will Brownsberger

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

29 replies on “The movement to reform criminal justice”

  1. Will, I am concerned about the talk by presidential candidates who are upset by “mass incarceration”.

    People, especially some groups, commit a lot of crime. That’s the reason so many people are in prison. More should be, namely, the guilty ones who are still free committing crimes.
    Like that illegal immigrant who was deported 5 times and came back to murder a young woman in S.F.
    Maybe we should be inviting illegals to Belmont. There are plenty of extra bedrooms in those big houses on “the hill”. Any takers?

    I am also curious that you say “People do not HEAL more or learn more by staying in prison longer.”

    I thought it was the victims and their families who need healing, not the prisoner. The prisoner is there not to heal but because he caused harm and should not be roaming around places like Belmont.

  2. This is a very positive development. Our criminal justice system at this point produces failure at all levels, incurring huge taxpayer expense, resulting in less safe communities and negatively impacting families and individuals in and out of the system.

    Now that the opiate crisis has illuminated how drugs affect white people, we might be able to move toward health-focused solutions rather than criminal punishment for drug addiction, and an end to the disastrous ‘war on drugs’. But there is so much more to be done, especially in wresting power from prosecutors and back into the hands of judges and juries, by eliminating mandatory minimum sentences. And we need to revise the bail system so people don’t end up languishing in prison before their trial when they can’t afford to post bond. Debtor’s prison was outlawed a long time ago.

    Your continuing attention and advocacy in these matters is laudatory, Will. Please continue to lead in this area.

  3. Thank you for providing this information, including your own insights and the resources list.

    It’s a relief to see that the US is moving away from the lock-em-up mentality that has failed to solve –or even consider– the social and economic problems associated with the crime rate. In addition, it’s hypocritical to disproportionately imprison so many people at the bottom of the social ladder while continuing to permit serious crime at the top.

    yvonne stapp

  4. Will — Did other legislators accompany you on your trip to Denver? If so, who?

    Thank you.

  5. Thanks for the update, Will. I’m glad that the prison system is being re examined, and that eventually we may see a more positive outcome. Rehabilitation and education are key in helping those in jail for non violent crimes. Please keep working on this important issue.

  6. It is so important to help people who are getting out of prison reestablish themselves in the community. They need to be able to get their lives on a productive track. This can only be accomplished through education and job training. Having shorter sentences or no prison time for minor offences helps accomplish this goal. Thank you for addressing this problem and for reaching out to other legislators of both parties to work together on this problem.

  7. I am glad to see issues of race and income disparity being addressed here.
    The USA, other than military power, seems to becoming a 3rd World Country
    I am old enough to remember the idealism of JFK, MLK, RFK, and many others. I am hopeful that I will be dead before I see things worsen in the United States.

  8. Thank you, Will, for your work in this area. Your research helps bring clarity to several criminal justice issues. Can you bring us up to date on another related issue?

    Two years ago, under former Governor Patrick, a committee was established to study the feasibility of the Department of Mental Health assuming responsibility for some people currently under the care of the Department of Corrections — those at Bridgewater State Hospital who are being evaluated for a major mental health illness prior to standing trial or those with civil commitments. What has happened since then? Have we made any progress? Where are we stalled? What can we do now?

    I heard hair-raising stories of poor treatment of patients and families at the April 7 public forum sponsored by the Disability Law Center. At least ten families reported conditions going on now that are extremely detrimental to treating people recovering from depression, schizophrenia, schizoaffective disorder, and bipolar disorder. People do recover. It’s difficult to accept attitudes that assume these patients/inmates are “throw-away” people.

  9. Having hired a person on pre-release many years ago, I am convinced that having an effective system of community supervision with the threat of incarceration for failing to observe the conditions of release along with necessary support services so that the person has a place to live and a way to support them self is way better than locking people up in prison. This is especially true for non-violent offenders of medium to low level crime as the person I hired was. There seems to be people who for what ever reason are unable to constructively handle the freedoms they have and end up doing destructive things with their freedom. But if they have a minder they will manage to live in our society without doing further anti-social behavior.

    Unfortunately, creating a system of effective community supervision is a problem when one considers patronage and the past history the commonwealth in this area; The recent Department of Probation scandal and the history of it being a place for people with connections vs ability to get jobs. Until there is agreement that providing these services professionally and well is more important than patronage the public is going to distrust major moves in this direction.

  10. Thanks Will.

    Appreciate your thoughtful summary. However, I am at a loss in understanding how the run-up in the number of people incarcerated through 1990 was due only to more cases of “old-fashioned” serious crime. I see no mention in your summary of the “War on Drugs” and the resultant surge in people being incarcerated for drug offences. The bulk of the people imprisoned were incarcerated despite their crimes often being victim-less (i.e., these people were not selling drugs but were users).

    Compared to Europe over the past 30 years, the US has been way too willing to imprison offenders rather than using probation schemes and simply not passing laws to classify so many actions as criminal!

    The combination of poor policy and unintended consequences has had a severe economic cost for society – a true waste of tax dollars?! We should be looking at closing prisons, re-opening mental hospitals for the mentally ill, and investing in probationary and training systems to drop recidivism.

    Thanks for listening!

    1. The thing is that, at the state level, the “war on drugs” accounts for really little of the increased prison population.

      At the federal level, it is a different story.

  11. I’m glad to hear some folks are starting to look at this, but I feel the need to echo Bernard’s comments about the war on drugs — the lack of mention is somewhat astonishing to me. It’s easy enough to find numbers on this; ignoring the war on drugs as a major source of prison population growth is downright absurd.

  12. Makes me giggle because I’ve been thinking about this for 25 years and more. Sounds like politicians are making an effort do do something good here. Fortunately my experience with jail was only one night. The poor jailers had to assist the thieves in the Middlesex Probate Court extort my family of $ 50,000.00. And I’m sure many of them are now sitting at the Cape milking their fat inflated pensions while my family is in ruins. It is difficult because we do need to keep bad people locked up. But the enormous amount of corruption and hypocrisy in our justice system, and frankly the large number of “good people” who feed off of it will ensure that new victims are created anyway unless the people who feed of off them do something else. It’s funny, when Fat Cats get locked up, they become instant prison reformers. Maybe, like in The Prince and The Pauper, Judges, Politicians, etc should all spend a few days in jail eating the lousy food an experiencing the true impact of this little profit center.

  13. My experiences with the courts in non-criminal matters is that they suppress justice in order to get a better price for the hope they sell. In civil issues, I guess advocates play good cop in one instance and bad cop in another. They still get paid, but bad cop mode is more lucrative. And acting like a prickly curmudgeon can makes the judge always “bad cop”, the one with the most power. And the less interested the system is in justice (1 year out of law school should do it), the more profit the players make. They play this game in a totally subsidized environment and their victims limp away in silence. There are real costs to society though in empowering and subsidizing these gunslingers. Every individual and family they destroy ends up either a burden to society or at the least not a joyful contributor to the general good. The reality is so different from narrative they share with each other to justify what they do.

    1. In layman’s terms it’s called shooting ducks in a barrel for $ 400.00 per hour. (invite your friends too, why not they’ll need “evaluations”. Unless the bad cops trigger the contempt trap they invariably set up early on. Then the sky’s the limit.

      1. I’m grateful for not having been censored to this point. From my perspective at least it’s a Uge improvement in 25 years. Thank you.

        Regarding the economics of incarceration for victim less crimes, distinct from non-violent crimes, and and how they relate to a failure of our justice system that I’m most familiar with. I wish I could pick up some graph out of economics and point directly at the impulse function and the inflection point that really drives our policy and makes society willing to establish these markets. I’m sure it’s been done or it’s not that difficult to figure out.

          1. I think the math will be clear, once the society and political establishment establish one immutable parameter. That fairness and justice aren’t just some bucket of slop to kick over when it’s time to feed the pigs. Then some lucky stiff will get a Nobel prize for modeling a very basic supply demand function with a micro-economic (unsustainable by the way) external force compelling a market and distorting the elasticity of demand. Will be a good time too for reform minded Judges to give seminars on how to win in the newer fairer court system.

  14. I appreciate your work and outreach to the community.

    I believe that incarceration is necessary for the most egregious crimes, not drug related crimes. The addicted need help in the community, not to be removed from it.

  15. At the forum one thing did concern me. I asked the DA what percent of those who use a gun in a crime are allowed to plea bargain to a lesser charge. He said over 90%

    To me that is an incentive to use guns in a crime. I believe that incentives do matter and people will behave if they know they can get away with something.

    I do believe that if one uses a gun in a crime, they should NOT be allowed to plea bargain to a lesser charge. Maybe less will use violence in crimes if they know they will do more time.

    Violent crimes must be stopped.

    That being said, we need to mandate that the age to drop out of HS be raised to 18 from 16 and provide help to kids who are having a hard time in school.

    The best help for a kid is a job and also a dad.

  16. I’m glad that a more humane is being taken where some of the crimes are concerned. People with mental illness should be treated and not incarcerated.

    People with substance abuse problems should be offered treatment rather than jail time.
    Is it cheaper to treat these people or incarcerate them?

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