Baker won’t sign no-cost prison calls without dangerousness bill 

GOV. CHARLIE BAKER is making another go at passing elements of his criminal dangerousness bill, this time with a bit of high-stakes legislative horse trading. Baker, in signing the fiscal 2023 budget on Thursday, refused to sign into law free phone calls for prison inmates and other prison reforms, instead returning those sections with an amendment that includes elements of his bill expanding when a judge can order someone held pre-trial.  

“I’m hoping they choose to do the right thing here,” Baker told reporters. 

The Republican governor holds enormous leverage, since formal legislative sessions end on Sunday. While the Democratic supermajority in the Legislature can normally easily muster the two-thirds vote needed to override Baker’s vetoes, they cannot do that once they are no longer in session. So if the Legislature passes the inmate calls policy again without reaching a compromise with the governor, Baker could simply veto it after the session ends, putting the policy on hold until at least January when a new governor and Legislature take office. 

Baker’s bill would expand the offenses for which a judge can order a defendant held pre-trial on the grounds that they are considered dangerous. The Judiciary Committee sent Baker’s bill to study last week, essentially killing it for this session, and the fallout has been an unusually personal and tense dispute between the governor and legislative Democrats, which continued at Baker’s Thursday morning State House press conference.  

Baker has been pushing for his bill by holding a series of emotional roundtables with survivors of sexual assault and domestic violence, who told often traumatic personal stories to illustrate how provisions of the bill would have protected them from their abusers. However, civil rights groups as well as some survivors’ groups raised concerns about whether the bill was too broad and about its impact on racial disparities in the criminal justice system.  

After sending the bill to study, Judiciary Committee co-chair Rep. Michael Day accused the administration of a “well-crafted public-relations tour,” comments Sen. Jamie Eldridge, the committee co-chair, echoed.  

Eldridge also said the governor had not tried to work with lawmakers to narrow his bill, a claim Baker officials disputed. Public Safety and Security Secretary Terrence Reidy wrote in an email to the chairs this week that his office met with Day’s office multiple times and answered questions, suggested language changes, and offered to omit entire sections. 

A group of survivors who participated in these roundtables penned an op-ed for CommonWealth, submitted by the governor’s office, in which they called Eldridge and Day’s comments “deeply insulting.” “To objectify our efforts to close these loopholes in Massachusetts law that made us easy prey for our abusers feels, for many of us, like another punch to the face,” the survivors wrote. They expressed similar comments at a State House roundtable on Monday. 

At Thursday’s bill-signing ceremony, Baker demanded an apology from Eldridge and Day on behalf of the survivors. “We thought the comments of Chair Eldridge and Chair Day were harsh, cold, and callous in the way they responded to the survivors who came to the State House to express their dismay about that legislation being sent to study,” Baker said.  

Baker said he and Lt. Gov. Karyn Polito have spent a lot of time with survivors who have dealt with, and continue to deal with, violent and difficult situations. “We are fair game,” Baker said, referring to himself and Polito. “You can say whatever you want about our motives, our intent, our intelligence, that’s part of the way this process works.” But he said the survivors showed “tremendous bravery and courage” in testifying at the State House, and for Day and Eldridge to accuse them of being part of a public relations stunt “is just disgraceful.” Baker said it is clear that “those two gentlemen owe those people an apology.” 

Day responded sharply to Baker’s attack and said the governor was the one who has turned the policy dispute personal. “Irrespective of the fact that the governor has resorted to using the bully pulpit to engage in personal attacks,  we remain focused on the actual language in this proposed amendment and its impacts on all residents of the Commonwealth.” Day said in a statement. Baker’s proposed amendment “still appears to contain significant due process problems that the administration seems to be unwilling to rectify,” he said.

“We will not exploit the survivor community for political gain,” Day added. “Instead, we will continue to listen to survivors and speak honestly with them about the impacts of various bills before the Judiciary Committee.”

Eldridge said he appreciates the survivors’ advocacy, but he stands by his comments. “I do think there’s an element of the governor’s using these individuals for political gain, and I think that’s disappointing,” he said.

Eldridge said he still has concerns about even the narrower version of the governor’s dangerousness bill. He said it raises “due process concerns” about detaining people who have not been convicted, particularly in an environment where trials are still backlogged from the COVID pandemic. “This is raising the prospect of someone who’s not been convicted of a crime…being detained in jail for years,” Eldridge said. Asked whether the Legislature could still pass the no-cost calls bill, Eldridge said he does not yet have that answer but it is “highly unusual” for the governor to tie together two unrelated bills this way.

In signing the budget, Baker refused to sign provisions requiring correction officials to provide free calls to inmates, prohibiting correction officials from charging more than 3 percent over the facility’s purchase price for commissary items, and requiring commissaries to offer gender-affirming and culturally appropriate items to people in custody. 

In a strongly worded filing letter, Baker said the same week the Legislature was enacting those provisions, lawmakers “ignored the voices of crime victims” by sending his dangerousness bill to study, and dismissed the victims who spoke as a political stunt. “Providing free phone calls, a benefit our state government provides to no one else, to inmates while dismissing the pleas of victims of crime is contrary to the traditions of, and frankly beneath the dignity of, the Massachusetts Legislature,” Baker wrote. 

Baker said his amendment would insert the most important elements of his dangerousness bill into the budget bill. “We have heard reports that the Legislature may be interested in passing a compromise bill and have tailored this proposal to focus on the most pressing provisions of this bill,” Baker wrote. 

Reidy, the public safety secretary, laid out the administration’s proposed compromise in an email he sent to the Judiciary Committee chairs on Tuesday. “This compromise is significantly slimmed down from the original bill and would retain the elements of the Governor’s bill most critical to protecting survivors and the public, while setting aside provisions that we have heard merit further discussion,” Reidy wrote in his email. 

The amendment, which also includes the no-cost phone calls and prison commissary policies, would create a new felony offense for cutting off a GPS tracking bracelet. It would expand the list of crimes that would be eligible for a dangerousness hearing to include sex offenses involving children, human trafficking, burglary, arson, threats of physical violence, and others. It would allow a detention order to extend until the conclusion of a case and permit a prosecutor to move for a dangerousness hearing at any point in the case, rather than only at the beginning of the judicial process. It would also require notification to victims before a defendant eligible for a dangerousness hearing is released from custody. 

Baker did not include provisions allowing a judge to look back at someone’s prior criminal history in deciding whether they are dangerous, citing legislative concerns. He also omitted a controversial provision that would have fingerprinted all arrestees, not only those accused of felonies. He did not change from his original proposal the list of offenses that would now become eligible for a dangerousness hearing. 

Baker’s changes did not assuage concerns from civil liberties groups.

Gavi Wolfe, legislative director of the ACLU of Massachusetts, issued a statement supporting Day and Eldridge and opposing Baker’s proposal, which Wolfe called “an attempt to expand pre-trial detention far beyond the reasonable bounds of due process.” “We applaud the legislature for standing by the constitutional principle of innocence until guilt is proven through a full and complete judicial process,” Wolfe said. “Chairs Mike Day and Jamie Eldridge and their colleagues on the Judiciary Committee deserve credit for standing for core constitutional values, and the ACLU applauds them for their unwavering commitment to due process and racial justice.”

Anthony Benedetti, chief counsel for the Committee for Public Counsel Services, also weighed in in opposition to Baker’s bill, arguing that dangerousness hearings disproportionately affect people of color. “When someone is found to be dangerous – before a jury is seated and the full evidence has been gathered – they are taken from their communities, locked up and forced to sit behind bars while presumed innocent,” Benedetti said. “This is not how justice is done, and we applaud Chairs Mike Day, Jamie Eldridge and other lawmakers who recognize that expanding this punishment-first law hurts our clients and has a disparate impact on poor people of color.”

Baker’s actions also angered those who have long been advocating for free calls in prisons, and finally saw the policy on the threshold of becoming law. Bonnie Tenneriello, an attorney with Prisoners’ Legal Services, which has been a leading advocate for no-cost calls, called it “absolutely unconscionable” that Baker would “hold hostage” the no-cost calls provision in order to pass his dangerousness bill. “He’s putting in danger a law that would help people in prison prepare for reentry and would help people in prison succeed on reentry as well as help their children, families and loved ones during their incarceration period,” Tenneriello said.

Baker wrote in his amendment that his language would “cure several significant drafting problems” in the no-cost calls language. But Tenneriello said Baker actually attempted to weaken the language, by allowing contracts where phone companies pay commissions to sheriffs and letting outside contractors profit more from commissary sales.

“Our hope is legislators will act aggressively on both fronts and if necessary, come into special session to override any vetoes,” Tenneriello said.