Is Massachusetts ready to join the national reassessment of criminal justice policy?
BONNIE DITORO DOESN’T try to hide from her past. She was a heavy-duty cocaine user, a newly widowed mother of two whose life in the mid-1990s was spiraling out of control. But she’s equally clear about what she was not. DiToro says she was no drug kingpin.
[soundcloud url=”https://api.soundcloud.com/tracks/215625268″ params=”color=0066cc&auto_play=false&hide_related=false&show_comments=true&show_user=true&show_reposts=false” width=”100%” height=”144″ iframe=”true” /] In fact, she says she wasn’t directly involved in the drug trade at all. But she hooked up with a dealer who was. He was a reliable source of cocaine for her, but a dreadful choice for a boyfriend. She was with him when he showed up at a house in Billerica to make a big drug deal that turned out to be a State Police sting operation.
With a DUI and one earlier drug charge on her record, DiToro thought she might get probation. Instead, police tried to get her to help set up big dealers in exchange for five years in prison. “I didn’t know any kingpins. I knew people like me,” she says of the circle of users she hung out with. Just before she went to trial, prosecutors offered DiToro three years, but her lawyer convinced her she could beat the charges or win on appeal. He was wrong on both accounts, and the consequences for her and for her family were severe.
DiToro was sentenced under the state’s tough mandatory minimum drug laws to 15 years in Framingham State Prison. Her parents, then in their 60s, were thrust into the role of parents to two teenagers, who struggled and had their own falls during the decade and half their mother was in prison.
Abrigal Forrester was no bystander in the drug trade. But he didn’t qualify as much of a drug overlord, either. He says he fell into dealing in his teens while growing up in a tough Dorchester neighborhood. At age 20, Forrester got lured by someone he knew into a making a bigger deal than usual. It turned out his contact was working with police in order to lighten a drug charge he was facing, a common technique used by law enforcement. The amount of cocaine in the transaction was enough to trigger a 10-year mandatory prison sentence, and Forrester spent all of his 20s behind bars.
DiToro and Forrester both carry felony records branding them perpetrators of serious crimes. Their past is nothing of which either one of them is proud.
But by another reckoning they can also be considered casualties. They are two of the millions of people who have been swept into the net of the criminal justice system during a 40-year era of tough-on-crime policies that has seen incarceration rates quadruple in the US. With only 5 percent of the world’s population, the nation now claims nearly 25 percent of its prisoners.
There are 2.2 million people behind bars in the country, an unprecedented level of incarceration that is taking a heavy toll on state budgets and on entire communities, especially poor, minority neighborhoods where a disproportionate share of those being locked up come from.
“We went on a punitiveness binge,” says David Kennedy, a professor at John Jay College of Criminal Justice in New York. “We subscribed to policing and criminal justice theories that made a virtue out of applying as much sanction as we could manage, and all of those, collectively, turn out to be incredibly destructive.”
A major reassessment of those policies is now taking place nationally as well as in Massachusetts. Some of the rethinking is being led by unlikely figures.
The arch-conservative Koch brothers have teamed up with the ACLU and other liberal-leaning groups to form a new alliance calling for a turn away from policies that drove the huge growth in incarceration. The Coalition for Public Safety says the country is spending $80 billion a year to support an “overcriminalization problem and overincarceration problem” that has a strong racial dimension and is exacerbating the cycle of poverty.
Meanwhile, 30 states have now taken part in a Department of Justice-sponsored effort to examine their criminal justice policies across the board, with an eye toward reducing corrections costs and recidivism rates, while enhancing public safety.
Massachusetts, which spends $1.2 billion a year on criminal justice costs, has yet to sign on to the federally-funded initiative, but is considering doing so.
The state occupies a curious spot in this national rethinking of criminal justice policies, sitting both ahead of the curve and behind it.
We’ve already taken some reform steps. In 2010, Massachusetts adopted one of the country’s more far-reaching changes to laws governing employer access to criminal records, a measure aimed at easing the barriers to employment faced by ex-offenders. The reforms also made some of those given lower-level mandatory drug sentences in the state’s county jails eligible for parole after serving half their time.
A 2012 bill—which stirred debate because of a “three-strikes” provision that mandates life sentences for certain violent offenders—lowered the length of many more mandatory minimum drug sentences by about one-third. It also reduced the area covered by the state’s school zone statute, which brings a mandatory two-year sentence for drug distribution arrests close to a school or park.
About 20,000 people are behind bars in Massachusetts jails and prisons, roughly 10,000 in state prisons and 10,000 in the houses of correction run by county sheriffs, where sentences can run no longer than 30 months. The big run-up in the state’s incarceration rate occurred in the 1980s and early 1990s. Each system held about 2,700 inmates in 1980. Both nearly quadrupled by 1995.
New “commitments” to the state system since 1990 have actually fallen by 20 percent, but the average length of prison stay has increased by roughly one-third, according to a 2013 report by MassINC, the policy think tank that publishes CommonWealth.
By national standards, Massachusetts is hardly a haven of incarceration. Indeed, our incarceration rate ranks 45th or 48th in the country, depending on how it is measured. But critics say that only makes Massachusetts one of the best of the worst. The state’s incarceration rate is still about three times that of most Western European nations, and if Massachusetts were a country, its imprisonment rate would only be exceeded by a handful of countries, a rogue’s gallery that includes Russia and Cuba.
The comparatively low overall Massachusetts incarceration rate also masks very high rates for minorities. The rate for blacks is six times that of whites. Meanwhile, the state’s incarceration rate for Hispanics is higher than the national average.
If we’ve balked so far at taking on the kind of wholesale examination of our system that some other states have carried out, some of it may be because we have not gone as far down the incarceration road as other states. But it also may reflect a particular Massachusetts skittishness about looking soft on crime. We are the state that brought the country Willie Horton, the furloughed murderer who helped sink Michael Dukakis’s 1988 presidential campaign, and there has been an uneasiness ever since about dialing back criminal sanctions.
The tough-on-crime era took hold in the 1980s, as the country reacted to rising crime rates and the growing scourge of drugs. Eric Sterling had a front-row seat in Washington as assistant counsel to the House Judiciary subcommittee on crime from 1979 to 1989.
Congress passed a series of tough new federal drug laws during that time, including a sweeping anti-drug bill in 1986 that had a tragic Massachusetts connection.
In June of that year, two days after the Boston Celtics made Len Bias the second overall pick in the NBA draft, the star forward from the University of Maryland died of a cocaine overdose. His death sent shockwaves about the rising tide of drug use across the country, and registered particularly hard in Boston.
Republicans made crime an effective issue in the 1984 election, and Sterling says alarm over Bias’s death helped fuel an effort by congressional Democrats, under the leadership of Speaker Tip O’Neill, to draw up a drug bill that would keep pace with the GOP clamp down on crime. The Anti-Drug Abuse Act of 1986 contained a host of new sanctions, including stiff new federal mandatory minimum prison sentences.
“The mandatory sentences were among the least carefully considered of all the features of a very hastily concocted bill,” says Sterling. “There was never any kind of evidence basis for the length of a sentence. The numbers were picked out of the air.”
States followed the federal lead in enacting tough new drug laws. Following the 1988 presidential campaign, where he was pummeled over the Willie Horton case, Dukakis signed several tough mandatory minimum sentencing bills. In 1989, the Legislature adopted school zone laws, which included mandatory sentences for drug crimes within 1,000 feet of a school or public park.
Bill Weld, in campaigning for governor in 1990, made his get-tough credentials clear, famously declaring that it was time to “reintroduce inmates to the joys of busting rocks.”
Bill Clinton rode into the White House in 1992 as a different sort of Democrat, repositioning the party to adopt a harder line on a number of issues, including criminal justice. He paused during the midst of the campaign to return to Arkansas, where he was governor, to oversee the execution of a mentally-impaired prisoner. In 1994, Clinton signed a sweeping federal crime bill that, among other things, gave states financial incentives to ratchet up sentences for crimes and reduced funding for prison education.
If the tough-on-crime era had strong bipartisan backing, so does the reappraisal now taking place. Rand Paul and Ted Cruz are calling for a turn away from the policies that have driven prison populations to historic heights. Meanwhile, Hillary Clinton is speaking out against the “mass incarceration” policies that her husband played a central role in shaping.
“We know after two decades of policies that were just tough on crime, we’re just going in the wrong direction, both fiscally and in terms of the human impact,” says Christine Leonard, executive director of the Coalition for Public Safety, the new national organization bringing together leading groups from the right and left.
“The policies have been a disaster,” says Sterling, the former judiciary committee counsel, who now heads the Criminal Justice Policy Foundation, a Washington organization working to reverse what he regards as damaging and counterproductive drug laws. There was “partisan gamesmanship in trying to position one’s party as to be tough on drugs and tough on crime. What we have now is a very different situation,” he says of the current climate. “We are, fortunately, turning the corner. I’m enormously hopeful.”
In the Massachusetts debate over criminal justice reform, mandatory minimum drug sentences like those handed to Bonnie DiToro and Abrigal Forrester have assumed center stage. Mandatory minimums have been the trump card of the tough-on-crime era, the most powerful lever used by law enforcement and prosecutors to combat the drug trade and the violence that often accompanies it.
A growing chorus of critics, however, is now questioning whether mandatory minimums make sense and actually have the impact we want.
“I was part of that war,” says Wayne Budd, US attorney for Massachusetts from 1989 to 1992, about the effort to ratchet up penalties in the battle against drugs. “We’ve seen many of the harsh sanctions simply haven’t accomplished the ends they intended. For big players, they should be hit hard. For minor players, we should be looking at alternatives.”
Ralph Gants, the chief justice of the state’s Supreme Judicial Court, set off the debate in Massachusetts last year when he called for abolition of mandatory sentences for drug offenses in a speech to the Massachusetts Bar Association.
If prosecutors elect to charge a defendant with a crime carrying a mandatory minimum sentence, the judge’s traditional role in determining an appropriate sanction following a conviction is effectively taken away. Gants argues mandatory minimums have been harmful because they remove this judicial discretion to consider the particular circumstances of a case and a defendant’s background.
The state’s district attorneys, led by Suffolk County’s Dan Conley, have strongly defended mandatory minimums and say they have been instrumental to the lowering of crime rates over the past two decades. Boston neighborhoods were victims of the “revolving door of justice” that was the result of the “unfettered judicial discretion visited upon our communities in the 1980s and early 1990s,” Conley wrote earlier this year in Massachusetts Lawyers Weekly.
In June, Gants testified before the Legislature’s judiciary committee in favor a bill to repeal mandatory minimums. He argued that mandatory minimums have resulted in disparate sentencing of racial minorities to long drug sentences and that unduly lengthy sentences have added unnecessary costs to corrections spending that could be better used for drug treatment or other services.
In 2013, 44 percent of all those convicted of drug offenses in the state were minorities, Gants said, but minorities accounted for 75 percent of those convicted under a mandatory minimum sentence. “If you do not abolish mandatory minimum sentences for drug offenses, you must accept the tragic fact that this disparate treatment of persons of color will be allowed to continue,” Gants told the committee.
Gants also argued that mandatory minimums have not been reserved, as prosecutors maintain, for the most dangerous or violent offenders. He said that in fiscal year 2013 slightly over half of those sentenced to drug mandatory minimums had no criminal record, a minor record, or a moderate record. Mandatory minimum sentences are “neither individualized nor evidence-based,” he testified. “They are based on the principle that one size fits all, but one size does not fit all with respect to drug crimes.”
About 1,200 of the roughly 20,000 people held in county jails and state prisons were sentenced under mandatory minimum drug statutes. The number of people sentenced annually to drug mandatory minimums has dropped significantly since peaking at 949 in fiscal year 2008. There were only 450 people given mandatory minimum drug sentences in 2013, the last full year for which data are available. That decline coincided with the 2012 changes to the mandatory minimum drug law that reduced the school zone size from 1,000 feet to 300 feet.
Gants argued that if the state repealed mandatory minimums, it would hardly lead to big drug dealers being let go by judges. “Most drug offenders will still be incarcerated, but their sentences, on average, would be modestly lower,” he said. Gants gave recent figures showing that those sent to state prison under mandatory minimum statutes received median sentences of 42 months to 60 months, while the median sentence for non-mandatory offenses was 36 months to 48 months. He also pointed out that states like Rhode Island, Michigan, and New York have eliminated or “substantially limited” mandatory minimum sentences in recent years while continuing to experience decreases in crime.
The actual number of people convicted under mandatory minimum sentences doesn’t explain the full reach of the law. Prosecutors can use the threat of stiff mandatory minimums as leverage to get defendants to plead guilty to other charges and accept a reduced sentence.
“The threat of the [mandatory] sentences hanging over people’s heads gets them to plead to cases,” says Anthony Benedetti, chief of the Committee for Public Counsel Services, the state-funded agency in charge of legal representation for indigent defendants. “It warps the whole system as soon as people are charged with those.”
Thousands of people have faced initial arraignment in recent years on school zone drug charges that carry a mandatory minimum sentence of two years. But Benedetti says less than 5 percent of such arraignments since 2008 have resulted in mandatory minimum convictions, with almost all cases ending in a plea deal to a lesser charge.
Benedetti and other critics say mandatory sentences have shifted the entire system toward longer sentences—for those receiving the mandated terms, but also for those trying to avoid them.
But where opponents of the laws see mandatory minimums used as unfair leverage, Conley offers a different take. “That’s how we exercise discretion,” he said at the June hearing in arguing the vast disparity between initial charges using the school zone statute and eventual convictions shows the restraint prosecutors use.
One of the big questions that has loomed over the debate on criminal justice reforms in general and mandatory minimum sentences in particular is the relationship of heightened incarceration rates to the steep decline in crime that the US has experienced over the last 25 years. Crime rates are roughly half what they were in 1990, a remarkable decline that has prompted a lot of research but can’t be clearly tied to any single factor.
Along with higher incarceration rates, everything from an increase in police officers to demographic shifts toward an older population and legalization of abortion has been cited as a potential factor in the decline in crime.
Conley maintains that tougher sentencing statutes have played an important role. “People were voting with their feet. People were leaving the city in droves,” he said at the June hearing in describing the impact of crime in Boston in the late 1980s and early 1990s. Mandatory minimum sentences, he said, were “among the tools that brought us back from the brink.”
The Brennan Center for Justice at New York University Law School, in a report released earlier this year, concluded that incarceration has had a “negligible crime control benefit.” Other studies, however, have suggested that as much as one-third of the decrease in crime in the 1990s may have been due to increased incarceration.
Some criminal justice researchers say inmates “age out” after a certain point and are far less likely to reoffend, meaning there are diminishing public safety returns from lengthy incarceration.
Jeremy Travis, the president of John Jay College of Criminal Justice, chaired a National Research Council committee that issued a report last year examining the huge growth in US incarceration rates. It found that the “expansion of the prison population has had only a modest effect on public safety,” he says.
What’s clear, says Travis, is that policies leading to longer sentences went far beyond any benefit to public safety that comes from incapacitating offenders. “Our country has gone off track by the overuse of prison as a response to crime,” he says.
DRIVING POLICY OFF COURSE
Sen. Will Brownsberger, who co-chairs the Legislature’s Joint Committee on the Judiciary, thinks the state should pull back the entire “footprint” of the criminal justice system, not only the length of many prison sentences but also various sanctions and fees that hit people once they’re out of prison. Rather than help ease offenders back toward productive pursuits, Brownsberger says, these often seem more like tripwires setting ex-prisoners up to fail.
One of the most questionable policies of the get-tough era is a 1989 statute that mandates an automatic one-to-five year suspension of the driver’s license of anyone convicted of a drug crime. In 2014, that meant 2,275 people in Massachusetts lost their license. Reinstatement comes with a hefty $500 fee.
It has been one huge hurdle for Shane Bradwell.
The lifelong Worcester resident has had more than his share of run-ins with the law, starting when he was just 16. “I was using drugs and selling,” says Bradwell, who is now 32. He’s served five years in prison over the course of several stints, including a felony heroin distribution charge. After getting released three-and-a-half years ago, Bradwell vowed to stay out. But he sometimes wonders if the system wants him to make it.
A painting contractor that Bradwell knew gave him a shot at honest work. “I was just cleaning up the floor and vacuuming at first,” he says. “I really didn’t have no trade – except selling drugs.” Bradwell says it might have been easier to go back to that, “but I know where that would go at the end of the day.”
The $500 he needed to scrape together to get his driver’s license back, however, might as well have been $5,000. So he rode his bike to painting jobs or, in the winter, sometimes walked as far as 45 minutes.
He got a small apartment and was trying to spend time with his daughter, who was born while he was in prison. He shares custody of his daughter with her mother, and picks her up from an afterschool program four days a week. Some days he had to turn down painting work because the jobs were outside Worcester and he couldn’t be sure of getting a ride back into town to pick her up by 6 pm, when the afterschool program closes.
Over the winter, he bought a used van with the idea of getting his own painting business going. But he had to have his brother register and insure it. And when he landed jobs, Bradwell had to make sure he could hire someone to work the job with him who had a license and could drive. He often wound up springing for cab fare just to get the helper to his house to drive the van.
“I’m not trying to get rich. I’m just trying to have something I can call my own—the business, the apartment, basically anything,” he says. “My whole life I really never had anything.”
“I went to jail and I served time for the crime I did. Then I come out and I have to pay another penalty to get my license back,” says Bradwell, who finally saved up enough to get his license in May. “Anything they can do to keep me down,” is how he feels the system is operating. “It’s not about trying to help people restore their life. It’s roadblocks.”
“If we wanted to create a mechanism to push people back to illegal drug use and into trouble, this is it,” says state Rep. Liz Malia, cosponsor of a bill that would repeal the license revocation statute. “It’s insane. It’s totally counterproductive. It’s terrible public policy.”
The suspension numbers have fallen considerably in recent years, after regularly hitting 6,000 or 7,000 per year through the 1990s and 2000s. Prosecutors say they are diverting more low-level drug cases to pre-trial probation or state drug courts, which doesn’t trigger a license suspension.
Repealing the suspension law is one area of criminal justice reform where there might be broad agreement.
Attorney General Maura Healey supports repeal of the law, as does Senate President Stan Rosenberg and a number of the state’s sheriffs. “We want them to do well, but we then won’t allow them to do well,” Suffolk County Sheriff Steven Tompkins says about the effect of the law on ex-inmates. Conley said at the Beacon Hill hearing in June that he would support lifting the sanction for “low-level drug offenders who have served their sentences.” Cape and Islands DA Michael O’Keefe says he favors repeal. Gov. Charlie Baker’s office says he wants to see the specifics of any bill but is open to the idea of ending the policy.
Brownsberger thinks the state should also examine the policy that requires the more than 50,000 people under probation supervision, which includes many just released from prison, to pay a monthly fee of $50 to $65.
“You’re collecting fees from people who have the most limited ability to pay,” says Brownsberger. He thinks it contributes to the resentment and mistrust of the criminal justice system in poor and minority communities, and the sense that the deck is stacked even against those trying to redeem themselves.
The criminal justice system has become “a tar pit,” he says. “You just cannot get out of it once you get into it and you have all these strings on you. We need to cut as many of those strings as possible, so that once somebody’s out of jail, we’re really doing the things that help them get back on their feet.”
In early May, more than 1,800 people filled Boston’s Trinity Church for a meeting of the Greater Boston Interfaith Organization. The coalition of religious congregations invited the state’s top political leaders to address a set of issues the group identified as priorities, including comprehensive criminal justice reform.
Donnell Wright, a 50-year-old Springfield resident who served a mandatory minimum drug sentence for cocaine trafficking, delivered a stirring speech on the difficulty he has faced landing a job despite his extraordinary efforts to turn his life around. Those included receiving a bachelor’s degree from a Boston University program for inmates in the state prison system.
After Wright’s speech, Baker, seated on the dais with the other political leaders, joined in a standing ovation for him and then pulled Wright in for a hug. It was not an altogether surprising reaction from the governor, who often seems genuinely moved by stories of adversity and persistence. Whether he and other state leaders are equally willing to embrace broad changes to criminal justice policies, however, is now the question.
Baker has not taken a firm stand on the mandatory minimum drug sentence issue. He has been outspoken on the need to address the state’s burgeoning opioid addiction crisis. He wrote last year on a candidate questionnaire for the advocacy group Families Against Mandatory Minimums that he “believe[s] reforming mandatory minimum sentences could be part of an overall strategy to rethink how those with substance abuse issues are treated.”
What steps, if any, the Legislature will take on mandatory minimum drug sentencing is also unclear. While Brownsberger and Rosenberg favor repeal, the House chairman of the judiciary committee, Rep. John Fernandes, and House Speaker Robert DeLeo have yet to stake out a position on the issue.
Both Brownsberger and Fernandes say the opioid crisis complicates the debate. “Does eliminating minimum mandatory sentences send an appropriate message to those who are engaged in trafficking these deadly drugs,” asks Fernandes.
Healey, in a letter to the judiciary committee, said she supports repeal of mandatory minimum drug sentences for offenses that “fall short of trafficking” and do not involve minors. Trafficking charges are triggered by the weight of drugs in a case. Healey seems to have taken a step back from the position she outlined during last year’s campaign, when she said she favored an end to mandatory minimums “for non-violent drug offenses,” without any mention of an exception for trafficking cases.
An omnibus criminal justice reform bill, cosponsored by Sen. Sonia Chang-Diaz of Boston and Rep. Mary Keefe of Worcester, would repeal mandatory minimum drug sentences and end the automatic driver’s license revocation for anyone convicted of a drug crime. The bill also calls for redirecting savings from the criminal justice system to job training and programs that target at-risk youth and those who have dropped out of school.
A long-dormant state Sentencing Commission was revived last year, with the charge of reviewing sentencing practices and offering recommendations. And the Legislature formed a special criminal justice commission in 2011 to study potential reforms. It issued a report in June which included a set of nearly two dozen recommendations, including repeal of mandatory minimum drug sentencing laws and changes to parole eligibility.
There is also now growing support for having Massachusetts join the 30 other states that have undergone a rigorous outside evaluation of their criminal justice policies by the federally-sponsored Justice Reinvestment Initiative.
The initiative requires a formal request from a state’s governor and legislative leaders. DeLeo and Rosenberg have signaled an interest in having the analysis done. Baker’s office has been more non-committal, saying the conversations about such an outside review are ongoing.
Launched in 2010 by the Department of Justice and the Pew Charitable Trusts, and carried out in collaboration with the Council of State Governments, the initiative uses a heavily data-focused analysis of criminal justice practices to help states devise cost-effective practices that reduce corrections costs and redeploy some of that spending toward measures to reduce recidivism.
“It’s a soup to nuts analysis of all aspects of criminal justice,” says Marc Pelka of the Council of State Governments, which would undertake the Massachusetts evaluation if the state approves the project.
The policy prescriptions that have been adopted based on the outside analyses have led to significant decreases in prison populations in Kentucky and North Carolina, and Texas was able to reduce its criminal justice budget by $450 million while steering $200 million in new funding to drug and mental health treatment.
“I’ve been at this work a long time, and I’ve never seen anything like this,” says Travis, the John Jay College of Criminal Justice president. “There’s this fundamental rethinking underway about how best to respond to crime. People on the left and right are recognizing that the overinvestment in prison has been a misallocation of scarce resources and an enormous deprivation of human liberty, with little benefit.”
Beyond the state’s sentencing practices, an outside evaluation would include a close look at policies on parole and probation. Fernandes says that is exactly what’s needed. If the focus is limited to mandatory minimums, he said at the State House hearing in June, “we’re not going to solve the problem.” Issues like “reentry on the backside” when inmates are released, he said, are just as important.
The clamp down on parole in recent years and other practices meant to get tough on crime have had unintended consequences, with many of those completing long sentences for serious crimes being returned directly to the streets with no period of post-release supervision.
Meanwhile, the state’s Probation Department, rocked by the corruption scandal over patronage hiring, is trying to refocus on its mission.
Recidivism rates in the state have remained stubbornly high, with 60 percent of all offenders released from state prison or county jails convicted on new charges within six years. Some might call that the failure rate of the state’s criminal justice system, not a passing grade by any standard.
“We’re behind the national curve in using the approach,” Rosenberg says of the data-driven evaluation that states are welcoming. “We’ve been nibbling around the edges of this movement, both in terms of policies and also in terms of using this approach to evaluate our own performance and get smart on crime, not just tough on crime.”
We may not have the policing problems of Ferguson, Missouri, or the astronomical incarceration rates that Texas and other Southern states are now trying to pull back from, says Brownsberger, “but we definitely have issues in Massachusetts, and we need to focus on them.”Former US attorney Wayne Budd, who is quoted in the story, is cochairman of the Massachusetts Criminal Justice Reform Coalition, which MassINC, the publisher of CommonWealth, is working with.