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October

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Lawyers Journal

Criminal reforms are long overdue

Even if you are not a criminal defense lawyer or a district attorney, the problems with criminal sentencing are a concern for you. Perhaps it is crime in your neighborhood as a result of preventable recidivism. Perhaps it is your wasted tax dollars. Perhaps your clients are looking for employees, and cannot understand the CORI (Criminal Offender Record Information) they have obtained, and they don’t know whom to hire or not.

As I mentioned last month, the criminal sentencing system in Massachusetts is in serious need of overhaul. Misunderstandings run deep, and many people still assume that the best way to deal with crime is harsh sentences, or worse, public humiliation such as chain gangs or other shaming.

In the get-tough-on-crime era of the early 1990s, an array of mandatory minimum sentences were enacted. “Truth in sentencing” meant the abolition of statutory good time, and a sharp decline in sentences which allowed meaningful parole. Prison and jail populations have ballooned, and they continue to do so. In 1990, there were approximately 2,500 inmates in the state prisons; that number increased to 11,259 by the first quarter of 2007.

As a result of sentencing changes and budget cuts, inmates got less education, less treatment and less training. Instead of being eased back into the community in step-down units, more and more inmates are leaving directly from medium or high-security prison settings straight into the community. The results are predictable, with around 50 percent back in prison within three years.
The toll is much higher than the simple cost of re-incarceration, which in itself is about $48,000 per year. There is a victim of the crime, with a loss of life, injury or loss or property. There are the insurance costs and the court costs.

What can we do? There are several simple steps to begin to correct what is wrong with our system.

• Eliminate the mandatory minimum sentences which are overcrowding our jails and prisons. Judges should have a wide range of sentencing alternatives, and should be given the opportunity to exercise their fairness and impartiality when fashioning the appropriate sentence.

• Encourage sentencing ranges which encourage parole and post-incarceration supervision. This will give inmates incentive to seek parole.

• Restore education and training programs. Roughly half of the inmates in state prisons have not graduated high school. The number of GEDs given in prisons has dropped dramatically as teachers are laid off. Many training programs have been eliminated. All of this is totally counterproductive, leaving the root causes of criminal conduct untreated.

• Restore treatment programs. Statistics show that roughly 80 percent of all crimes have some root in alcohol or drug problems. Current treatment programs have long waiting lists. The programs should be readily available. With only 3 percent of the state prison budget devoted to programming, it is easy to see why inmate education, training and treatment remain woefully inadequate.

All of these issues will be discussed at the MBA Sentencing Symposium, which is scheduled for Oct. 23 at the Statehouse. I hope you will join us for that discussion. We will also be working at the committee level at the Statehouse this fall on pending legislation.

CORI reform

It is also time for CORI reform. Information about criminal records is maintained by the Criminal History Review Board. Judges, probation officers and the police have access to all records in the system. With very few exceptions, once someone has been arrested, the record remains a part of the CORI for life. There are several problems with the system.

For starters, mistakes in the CORI are hard to correct. A person may give a false identity, or there may be a mistake at the time of an arrest, and inaccurate CORI information can be generated. Once there, the process to get a correction is complicated, difficult and lengthy.

CORI reports given to housing agencies or employers include arrests, even if they led to dismissals or not guilty findings, and even if the person is known to be innocent because of a mistaken arrest. The reports are confusing and difficult to read. As a result, discrimination often results.

Although it is important that someone convicted of fraud not get a job as a bank teller, and a sex offender not work with patients or children, the vast majority of offenses will have little relation to suitability to the job. This is particularly true when the offense was committed over seven years earlier. The re-offense rate after seven years is statistically no different that the first offense rate for someone who has never been arrested. At a time when businesses need workers and former inmates need jobs, building hidden job discrimination into the workplace and housing market is counterproductive.

Gov. Deval Patrick has already indicated that he is willing to consider reforms to the CORI system. The MBA looks forward to working with advocates around the state to achieve the needed modifications to the system.

Our Eco-Challenge

As you will see, this month’s issue of Lawyers Journal (see story, p.3) also includes several tips for improving energy efficiency in your office. I hope you will take the first steps in fighting global warming by replacing all incandescent light bulbs in your office and home with energy efficient compact fluorescents. Make every purchase of new appliances and equipment with energy conservation in mind. If we all take these small steps, the overall savings will be significant.

For more on CORI reform, see story on page 10. For more information on criminal sentencing issues and statistics mentioned above, see the following:

• The Harshbarger Commission’s 2004 report on corrections reform, “Strengthening Public Safety, Increasing Accountability and Instituting Fiscal Responsibility in the Department of Correction.”

• The Crime and Justice Institute’s Web site (http://crjustice.org/cji/cjipublications.html) contains links to a number of reports.

©2014 Massachusetts Bar Association