Lawyers Journal

Sentencing Symposium panelists optimistic about chance for reform

Massachusetts could see meaningful sentencing reform for the first time in years, a number of distinguished panelists suggested at a Massachusetts Bar Association-sponsored forum at the Statehouse on Oct. 23.

The MBA’s Sentencing Symposium, which was held in the Great Hall of the Statehouse, featured two panels that discussed the political, financial and ethical issues surrounding the state’s sentencing structure and Criminal Offender Record Information system.

With interest from Gov. Deval Patrick and the Legislature — in addition to many in the criminal justice system — this could be the year that sentencing reform finally happens, said Sen. Robert S. Creedon Jr., Senate chairman of the Joint Committee on the Judiciary.

“It’s key that this governor is adding a rational voice to the discussion and not adding kerosene to the fire,” Creedon said. “I’m more optimistic than ever that we can have a useful discussion.”

MBA President David W. White Jr., who has made sentencing reform a priority of his 2007-08 term, participated in the symposium, which attracted more than 100 people.

“The MBA is committed to this effort,” White said, noting that he will continue to discuss the issue with district attorneys and raise awareness for the need to reform the system. Legislative reforms made in the 1990s didn’t fully address the shortcomings, he said, and the changes needed are long overdue.

Targeting mandatory minimum sentences

Panelists targeted mandatory minimum sentences as a serious problem, particularly for lesser or non-violent crimes.

Washington state Rep. Roger Goodman, an attorney and vice chair of the House Judiciary Committee there, said that in 2002, Washington drastically reduced sentences for non-violent offenses and shifted millions in funds from incarceration to health care.

“The cost of treatment, as we know, is so much less than incarceration,” he said. “I would highly encourage the state of Massachusetts to get rid of mandatory minimums when it has to do with drug offenses. It’s highly counterproductive.”

Panelists noted that valuable resources are being wasted on expanding prison capacity instead of addressing the problem, which could eventually reduce the number of people incarcerated.

John J. Larivee, chief executive officer of Community Resources for Justice in Boston, said the state’s sentencing policies are misguided.

“We have the tools available to do that right,” he said of treatment programs and services for inmates. “What’s holding us back are the sentencing laws that don’t allow us to use them.”
Suffolk County Sheriff Andrea J. Cabral said that shortcomings in sentencing laws are having a major impact.

“If we don’t do something about this right now, it’s going to divide this country. This is not going to be a case of the ‘haves’ and the ‘have-nots’; it’s going to be the ‘haves’ and the ‘never will haves,’” she said.

Cabral said she learned during a fellowship in Australia that that country only incarcerates one-tenth of 1 percent of its population, while the United States incarcerates one-half of 1 percent.
“A lot of this has to do with our American philosophy of crime and punishment,” she said, adding that simply building more prisons fails to acknowledge the root of the problem. “We’re not going to build our way out of this, and we shouldn’t want to,” she said. “It’s really a shame that we’re so far behind the eight-ball on this.”

Reforming mandatory minimum sentencing and directing even a fraction of the money spent on incarceration into drug treatment, job training, intervention and housing programs would do more to ease prison crowding than building new prisons, Cabral said.

Massachusetts Chief Justice for Administration and Management Robert J. Mulligan noted that as of Oct. 1, there were 25,397 people incarcerated in Massachusetts, leaving a shortfall of 9,000 prison beds. Mandatory minimum sentencing, he said, has a “pernicious” effect on the minority community.

“They know that we know (mandatory minimum sentences) are unfair,” he said.

While tough crimes demand tough sentencing guidelines, Mulligan said Massachusetts needs to balance that with different standards for people who don’t need incarceration and could be rehabilitated.

“It’s just not cost-effective to put people who are not violent offenders in those valuable beds,” Mulligan said, adding that judges should be allowed to exercise their discretion under public scrutiny.

Recognizing political realities

On the second panel, Creedon and his co-chairman on the Joint Committee on the Judiciary, Rep. Eugene O’Flaherty, noted that while there is recognition of the need for sentencing reform, political realities often slow down or hijack the process.

“Those of us who practice law, like House Chairman (O’Flaherty) and myself, know that the system isn’t working,” Creedon said, but progress can still be hard to come by, and is often made incrementally.

“Sometimes, half of a loaf is possible when a full loaf is not,” Creedon said.

William J. Leahy, chief counsel of the Committee for Public Council Services, said it’s been years since Massachusetts had a governor interested in the issue.

“It’s very, very difficult in Massachusetts to make any progress” without the support of the governor or attorney general.

Mary Elizabeth Heffernan, the undersecretary of criminal justice in the state’s Executive Office of Public Safety, said Patrick’s administration is reviewing the state’s criminal justice policies. One particularly glaring weakness, she said, is the lack of services the state provides for inmates to give them a better chance at rehabilitation than recidivism once they get out.

“Sheriffs have filled the role that the state has dropped,” said Heffernan. She added that Patrick has reconvened an anti-crime council to generate “thoughtful discussion” on critical issues like mandatory minimum sentencing. As chair of the MBA Criminal Justice Section, Lee J. Gartenberg represents the association on that council.

“There needs to be discussion and the time is right for that,” she said. “Things have not worked the last several years, and we would like them to work.”

Mary Price, vice president and general counsel of the Families Against Mandatory Minimums Foundation, said, “We’re delighted at the indications of interest that we’re hearing. We know these things take time.”

Creedon, however, pointed out the difficulty in tackling sentencing reform when there’s public pressure to “get tough on crime,” which can actually be counterproductive.

“We have to make sure that the debate does not devolve into a shouting match of being soft on crime. If that happens, then we’ve lost,” he said.

Keeping the public debate on topic

Creedon said his constituents aren’t demanding sentencing or CORI reforms. If anything, the pressure usually comes in the form of more knee-jerk reactions to hot-button issues like lenient sentences by judges viewed as soft on crime.

“There’s been pressure put on me to take away discretion from judges, and I think that’s a bad idea,” he said.

Leahy said the challenge in tackling issues like sentencing, which are both politically sensitive and easily misrepresented, is building support based on logical, financial arguments without getting hijacked by emotionally charged arguments.

“We know that mandatory sentencing doesn’t work on a fiscal level. We’ve got to somehow get the debate beyond (being about) a horror story. If we’re going to act smarter on crime, we have to actually be smarter on crime.”

Part of that involves convincing the media that logical arguments should trump inflammatory headlines, he said.

O’Flaherty noted that criminal justice reforms are usually driven by a horrific crime that fuels sensationalist reactions. Lawmakers need community support on issues like sentencing reform, he said, and “Often times, when we turn around, there’s nobody behind us.”

Northeastern University Professor James Alan Fox said emotional arguments usually trump logic.
Emotionally charged bills rushed into law in reaction to headline-grabbing, sensational cases are usually poorly thought through and are often one-sided and misguided. Laws named after people, particularly dead children, are difficult to argue against on their merits without opponents being portrayed as insensitive to the victim and their families.

“Laws named after children stifle debate,” Fox said. “That’s one thing we should stop doing so we can have substantive debate.”

While the district attorneys’ association is discussing reforms, Leahy disputed that the group is doing enough to bring about reform.

“They’re putting their toes in the water, but we think they need to at least get in up to their knees,” he said.

Still, there was optimism that the need is finally being taken seriously and could lead to concrete action by the Legislature in the near future.

“I believe the climate is right for good discussion, not discussion that’s tainted by sensationalism,”

O’Flaherty said. “We’ve begun a lot of serious discussions. I believe there is the will in the membership to deal with these issues.”

©2014 Massachusetts Bar Association