Continuing Focus on Criminal Justice

Last session, the Massachusetts Legislature passed groundbreaking criminal justice reform legislation, An Act Relative to Criminal Justice Reform (the “CJ Reform Act”). It has been hailed by some as a “blueprint” for what criminal justice reform should look like across the country.

I want to focus this month’s newsletter as a reminder of what we accomplished by passing this law; it will significantly impact the lives of thousands of individuals throughout the Commonwealth for years to come. I also want to discuss areas of the CJ Reform Act where the implementation has not yet matched the initial promise of the law, and highlight some criminal justice reform goals for this session. 

Major Reforms Were Passed
The CJ Reform Act made significant improvements in many key areas of our criminal justice system. Just some of the many areas where we passed reforms include: 1) the elimination of mandatory minimum sentences for certain drug offenses; 2) advancing alternatives to incarceration, including expanding diversion programs to the Juvenile Court; 3) the allowance of restorative justice as a voluntary program for adults and juveniles; 4) the codification of changes to our bail system requiring that a defendant’s financial resources be taken into account in making bail decisions; 5) the requirement of consistent periodic evaluations of inmates in solitary confinement to determine their eligibility to return to general population, including conducting mental health screenings and 6) improvements to medical parole so that people who are dying in prison can petition to be released to live their remaining days outside prison walls. You can read more details about the specifics of this major piece of legislation in my previous newsletter.

Are All Those Reforms Being Implemented?
Yet, now that the bill has become law, I share the concerns of some in the criminal justice reform community who have found instances where the law is not being implemented correctly. One such example is that the roll-out of the law as it relates to solitary confinement has been less than complete. Another example is the stilted and uneven way in which medical parole reforms are being implemented. Taken together, these are examples demonstrating that it is not enough to pass reform-minded laws. Those of us in the Legislature who have made criminal justice reform a priority need to follow up — in an oversight role — to ensure that the executive branch agencies charged with administering these laws are doing so to fully realize both the letter and spirit of the law.   

The solitary confinement standard (and the use of solitary generally) has been implicated in the recent troubling developments at the Souza-Baranowski Correctional Facility in Shirley. As you may have read, a corrections officer there was attacked by a group of inmates that were in the general population. The staff there have asserted that the attack took place because prisoners who were previously in solitary confinement are now in the general population. They argue that the CJ Reform Law weakens the criteria to place an inmate in solitary confinement, thus leading to incidents such as the recent attacks.

However, if this was the case, it seems likely that we would be seeing an increase in violence in prisons across the state, which we are not. The other correctional institutions across the state also have “segregation” as Massachusetts prison officials refer to solitary confinement. The reality is that the Shirley Correctional Facility (which I have personally visited and toured) has a history of violence, and many believe the unrest there stems from the way the prison is structured and operates, not any criminal justice reforms. Another example of how reforms can be skirted is that the Department of Correction has begun to create alternative types of units that are technically not “restrictive confinement” as it is defined under the law. This allows prisons to ignore the guidelines of treatment for inmates in solitary confinement, thereby exploiting what amounts to a loophole. These new units do not have periodic placement reviews and conditions-based protections that are laid out in the law for solitary confinement. In order to close the loophole, a bill has recently been filed S.2413 – An Act to provide Criminal Justice Protections to All Prisoners in Segregated Confinement to ensure that inmates placed in any form of “restrictive confinement” are afforded the protections that were included in the CJ Reform Act. It will also allow prisoners in all forms of segregated confinement to receive placement reviews that will determine when and for as long an inmate must be placed in confinement based on assessing the level of harm that inmate may cause upon themselves others. Finally, it requires monthly reporting on the number of prisoners held in all types of segregated confinement.  

The CJ Reform Act passed last session also made changes to our medical parole system. The law modifies the current system and permits people dying in prison to petition to be released to live their remaining days outside prison walls. There had been some concern that the Department of Correction (DOC) has not been implementing these changes as they should, which in turn led to litigation.  The Supreme Judicial Court ruled — just a few days ago — that the DOC regulations for handling such medical parole requests are inconsistent with the statute. Now that our state’s highest court has handed down this decision, the DOC should start implementing the ruling promptly. It will be important as time progresses to keep a close eye on our prisons to make sure the provisions of the CJ Reform Act are being implemented and that the law we passed is working as intended.

Pending Reform Legislation
Despite the groundbreaking success of the CJ Reform Act, additional legislative work remains to be done. Moving forward, I have worked closely with Prisoners Legal Services to craft legislation that would create significant improvements to our parole system. We need to give people a path back to productive lives. This session, I filed H.1541 – An Act Establishing Presumptive Parole, which amends the parole release standard to require the Parole Board to rely on structured, actuarially-based parole guidelines and the findings of a validated risk and needs assessment tool. Under the bill, prisoners are to be released at the time of parole eligibility unless clear and convincing evidence demonstrates that the prisoner would violate the law if released under appropriate conditions and community supervision. If a prisoner’s disability could impair their parole success, the Board must schedule a psychological or medical examination to ascertain and evaluate the nature of the risk that the disability poses and to identify any support, services, or programs that might mitigate the risk. This bill also ensures that no individual who has been granted parole shall remain incarcerated because of their disability.

Providing protections and expanding programs for inmates that are eligible for release simply makes common sense, and works for the betterment of our public safety. However, we must also not forget about the individuals that are facing life without parole. More than one out of ten prisoners in Massachusetts is serving a life sentence without the chance of parole. Denying prisoners the opportunity to ever apply for parole not only robs them of hope and denies their capacity to rehabilitate, it wastes public resources and does little to promote public safety. With this in mind, I filed H.1542 –An Act relative to life without parole. This bill seeks to address this issue by banning mandatory life without parole, returning discretion to the judiciary to determine on an individual basis that a person eligible for a life without parole sentence may instead be permitted to see the parole board after serving 35 years in prison.

In an effort to improve our current solitary confinement system, this session I filed H.1539 – An Act Establishing Reasonable Limitations on the Solitary Confinement of Inmates 21 Years of Age or Younger. This bill puts reasonable limits on solitary confinement for those 21 and under, except in limited circumstances. Research has established that brain development continues into the mid-20s. Solitary confinement is an extreme form of punishment for any person, but particularly for young people for whom it interferes with important brain developments and can cause irreparable harm. To make implementation of this measure feasible, in the case that an individual poses an immediate and substantial threat to the safety of others, corrections personnel may use isolation briefly, after which time isolation will end unless there is adequate evidence that the individual continues to be an immediate and substantial risk to the safety of others.

The reforms we passed last session are truly groundbreaking. Yet our work must continue. We cannot expect perfection, but we should be able to implement reform and hold our law enforcement, courts, prisons, and counseling services accountable to make sure those reforms are thoroughly implemented. I have made criminal justice improvements a key area of my work in the Legislature and I am tremendously pleased with the progress Massachusetts has made thus far; we need to keep pushing the envelope.  

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Contact Dave

Please never hesitate to contact me for any reason.

Phone: 617-722-2637
Email: dave.rogers@mahouse.gov
Mail: State House Room 544, Boston, MA 02133