Why all attorneys should advocate 
for criminal justice reform

Issue September/October 2017 By Pauline Quirion

The Massachusetts Bar Association recently issued a report and passed resolutions urging adoption of practices and legislation to ensure that a low-income defendant's inability to pay fees due to lack of income does not result in incarceration, unfair pretrial detention or accumulation of debt that impedes successful re-entry into the workforce and society.

MBA Criminal Justice Section Council members recently testified in favor of bills that address criminalization of poverty, bail reform, gaps in CORI laws and revision of outdated laws, including the failed war on drugs program of mandatory minimum sentences.

All attorneys should advocate for criminal justice reform.

Top 10 reasons to support criminal justice reform

Incarceration has proven to have little effect on crime rates in Massachusetts and is incredibly costly to taxpayers.

Massachusetts has racially disparate rates of incarceration that erode public confidence and call into question the fairness of the criminal justice system as a whole.

Massachusetts has high recidivism, and employment is a leading factor in reducing recidivism. Gaps and faulty provisions in CORI statutes and other laws shut many people out of the economy by imposing overly long waiting periods for sealing of CORI, by giving people lifetime never sealable records for very common offenses, such as resisting arrest, and by creating other barriers to jobs, training, occupational licensing and other opportunities.

Massachusetts is an outlier with a felony-larceny threshold of only $250, which makes felons of countless people who commit low-level offenses, including many young adults and people with substance abuse issues. The felony status triggers a decade-long waiting period to seal the record.

The right to due process and equal protection of the law prohibits courts from punishing poverty or incarcerating low-income criminal defendants solely because they are unable to pay a fee or fine.

Low-income defendants often cannot afford even low bail, which results in pretrial detention, and loss of jobs and income. This affects their ability to keep their homes, support their children, pay their bills, and successfully re-enter society and the workforce.

There is no uniform standard for waiver of fees, and probation and myriad other fees routinely imposed in a criminal case quickly accumulate into debt for those who have little or no ability to pay. A person's later incarceration for failure to pay fees likely costs the state more than the revenue that the fees would have generated.

Mandatory minimum sentences put too much power in the hands of prosecutors, prevent judges from imposing fair sentences in all cases and further contribute to racial disparities in incarceration.

Defendants facing mandatory minimum sentences have little choice, but to take plea deals that result in incarceration rather than risk longer mandatory incarceration sentences if they go to trial.

Mandatory minimum sentences cast too wide of a net and impose overly harsh sentences on people with addiction issues when public dollars would be better spent on treatment programs rather than on incarceration.

Smarter on crime measures

The Council for State Government Justice Center, in its recent study of our court system, noted that 43 percent of individuals sentenced to the House of Corrections (HOC) in 2013 had a prior sentence within three years. Criminal justice reform should matter to everyone because individuals released from incarceration are clearly in need of support and institutional strategies that promote return-to-the-workforce and post-incarceration success.

MassINC, a non-partisan think tank, issued a report in 2016 stating that the elevated level of recidivism is a symptom of "tough on crime" era policies, and that too often after incarceration, "prisoners leave hardened and more prone to commit crime than when they entered." In 2017, MassINC polled voters and found that they largely approve of major criminal justice reforms. Key findings were that a plurality of voters think that we incarcerate too many people, and that the present system increases rather than prevents crime. Voters also want to move in the direction of ending mandatory minimum sentences, permitting people to seal their records sooner, raising the felony-larceny threshold and permitting compassionate release from incarceration of terminally ill people. By two-to-one margins, voters said drug arrests should be treated as a health issue, and favored investing in treatment and rehabilitation over incarceration.

Racial inequality

Advocacy for criminal justice reform in Massachusetts is also a call for an end to racial disparities in the criminal justice system. In a post-Ferguson world, the fairness of the legal system is more frequently called into question, and there is greater public awareness that people of color are disproportionately involved in the criminal justice system and often poor. While Massachusetts touts its low incarceration rate as compared to many other states, our incarceration rate in 2014 was seven-and-a-half times higher for blacks than whites, while the ratio for the U.S. was five to one. Our state incarceration rate was 4.3 times higher for Hispanics than whites - much higher than the one-to-four ratio for Hispanics nationwide.

Suffolk County House of Corrections statistics for 2016 reflect large racial disparities, but also indicate that racial disproportionality is most pronounced in the population serving mandatory minimum sentences. Blacks and Hispanics comprised 65 percent of the Suffolk HOC population in 2016. The mandatory minimum sub-population data for 2016 showed that 75 percent of those serving a mandatory minimum sentence were black or Hispanic.

Black people comprise 20.2 percent of the population living in Suffolk County according to the U.S. Census, but are 53 percent of those serving mandatory minimum sentences in Suffolk HOC.

Deep concern about mass incarceration of people of color has brought many individuals and groups into an ever growing movement for criminal justice reform. Recent hearings on criminal reform bills drew not only the usual criminal law specialists, but large crowds - including, but not limited to, people previously incarcerated or with past criminal cases; faith based groups, such as the Greater Boston Interfaith Organization; the National Association of Social Workers; substance abuse providers; veterans advocates; grassroots coalitions, such as Jobs NOT Jails and the Juvenile Justice Coalition; Neighbor to Neighbor; ROCA; MassINC; Citizens for Juvenile Justice and other youth groups; civil legal aid (Greater Boston Legal Services and Mental Health Legal Advisors); the League of Women Voters; and busloads of people from EPOCA (an ex-prisoners' group in Worcester) and the Coalition for Social Justice from New Bedford.

Legislators also are increasingly outspoken about the need for extensive criminal justice reform. Leaders, such as Senators William Brownsberger, Sonia Chang-Diaz, Michael Barrett, Cynthia Creem, Linda Dorcena Forry, James Eldridge, Pat Jehlen and Karen Spilka, and Representatives Mary Keefe, Liz Malia, Evandro Carvalho, Byron Rushing, Claire Cronin, and others, filed bills that address criminalization of poverty, fees and fines, bail reform, gaps in CORI laws, raising of the felony-larceny threshold, racial profiling, "fine time," expungement, repeal of mandatory minimum sentences in drug cases, and other important issues. The Harm Reduction and Drug Law Reform Caucus and the Black and Latino Legislative Caucus also have been highly visible in their campaigns for criminal justice reform.

Criminalization of poverty

There is no uniform standard for waiver of fees, and the number of fees that are routinely imposed in a criminal case have increased significantly over time. Low-income people can easily rack up court debt and sometimes are incarcerated for failure to pay fees they could never afford. Probation fees, in particular, are a problem for the poor. A study by the Prison Initiative also showed that when District Courts were grouped by per capita income of the communities they served, the highest rates of probation were in cities where defendants had the lowest income.

The Senate Committee on Post Audit and Oversight studied a sample of defendants serving "fine time" in three counties for failure to pay fees. It found that defendants incarcerated for failure to pay fees had mostly represented themselves at their hearings on non-payment of fees, although over 60 percent of them were previously found indigent for purposes of appointment of counsel. Eighty-three percent of these defendants served over three-quarters of the sentences they received for not paying fees or fines, ostensibly because they could not afford to pay the sums they owed.

When people are incarcerated for non-payment, it prolongs the life of their criminal cases and puts their jobs, housing and what little financial stability they have in jeopardy. The same also applies to low-income defendants who cannot make bail. Studies show that detaining low- or moderate-risk defendants, even for short periods of time or with too much supervision, leads to higher rates of recidivism. Pretrial incarceration results in loss of jobs for defendants. Cases show up on CORI reports for those who lost their jobs because they could not make bail, and make it harder for them to find new jobs.

Senator William Brownsberger's bill (Senate 777, An Act to Reduce Criminalization of Poverty), which has 40 co-sponsors, would address the litany of problems related to fees that indigent people cannot afford and provide greater due process protections prior to incarceration for non-payment of fees. The bill would require a determination of indigency, an appointment of counsel for indigents and a consideration of alternatives to incarceration, such as payment plans or fee remittance to ensure that a person's ability to pay is fully considered before a person is jailed for non-payment of fees. Senate Bill 791 and House Bill 2308 also call for a uniform fee waiver standard. Senate Bill 755 and House Bill 3077would also increase the "fine time" credit for each day served for non-payment of fees from $30 to $90 per day.

'Jobs not jails' - not just a slogan

Studies show that employment is a major factor in reduction of recidivism and successful re-entry. CORI reform in 2010 was an important first step, but many gaps in the law remain, which impede many people from returning to the workforce and getting their lives back on track. The present five-year waiting period to seal misdemeanors and the 10 year waiting to seal felony convictions are too long. Most employers will not hire a person with a criminal record. Waiting periods should never be more than seven years for most crimes because recidivism studies show that after a seven year absence of crime, the risk of a new offense is the same as for a person who never had a record. Most recidivism occurs within 18 months to three years of the last criminal occurrence.

Senator Brownsberger's bill (Senate 777) and Senate 791/ House 2308, filed by Senator Chang-Diaz and Representative Keefe, are critical and comprehensive bills that would address many barriers to employment and re-entry success. The bills would:

  • Reduce overly long 10- and five-year waiting periods for sealing of records to three and seven years;
  • Permit sealing of resisting arrest convictions, which are now never sealable offenses;
  • Increase the felony larceny threshold to at least $1500;
  • Clarify the law so as to exclude cases dismissed before arraignment from CORI reports;
  • Clarify that no juvenile cases are to be included in adult CORI reports unless the employer has a statutory level of access to CORI that specifies access to such records;
  • Clarify that petitioners can say they have "no record" once their records are sealed when applying for housing, and fill other gaps in CORI related laws that make it hard to impossible for people to not disclose sealed records when they apply for housing, and other opportunities.

Senate 777 also would make helpful changes to RMV laws that create barriers to jobs and re-entry including elimination of most license suspensions that are unrelated to use of a vehicle.

In sum, this legislative session has the potential to be life changing for countless people.