Massachusetts Sets an Example for Bipartisan Criminal Justice Reform

The bill, while not perfect, changes nearly every aspect of the Massachusetts criminal justice system.

May 1, 2018

While the White House and Congress dither on criminal justice reform — the real kind that includes sentencing reform — Massachusetts has joined a parade of states vying to implement transformative changes at the local level. The state’s Republican Governor Charlie Baker signed the latest state reform package earlier this month. The bill, while not perfect, changes nearly every aspect of the Massachusetts criminal justice system.

Some of the key reforms:

  • Criminal Fee Waivers. Massachusetts, with its robust public defender resources, already does more than most states for the low-income defendants (who comprise most of those caught up in the criminal justice system). But it went a step further with this new legislation, making all court-imposed fees waivable by judges, probation fees waivable for the first year, and parole fees waivable for up to six months after release. That’s a big deal when a trip through the court system can saddle a defendant with hundreds, sometimes thousands, of dollars in legal financial obligations. The new reforms also institute protections to guard against incarceration for those unable to pay, and eliminates automatic driver’s license suspensions for missed court dates.
  • Bail reform. Nationwide, 65 percent of those held in local jails haven’t been convicted of a crime. Instead, they’re awaiting pending court action, and many can’t afford the bail amount that would let them out. This legislation lays out important procedural requirements, including that judges now need to justify in writing those instances in which bail is set so high as to prevent someone’s release. It also creates a commission to pursue additional improvements in bail reform. Until recently, Massachusetts courts didn’t have to justify amounts set. That changed in August with a ruling by the state’s high court requiring judges to consider financial circumstances of defendants in setting bail.
  • Elimination of mandatory minimums. Imposing mandatory minimum sentences for drug offenses is wholly ineffective — and it’s costly (to the tune of more than $55,000 a year for each inmate Massachusetts jails). This new reform eliminates them — though not for high-volume trafficking — and gives judges greater discretion to impose sentences based on defendants’ individual circumstances. Massachusetts joins other states that have repealed or revised mandatory minimum sentences since 2010. The Brennan Center joined Middlesex County, Mass. Sheriff Peter Koutoujian and others in advocating for these changes. The state had previously increased its sentence lengths, and was one of many that contributed to a national 36 percent jump in the average prison stay since 1990.  
  • Raised felony thresholds. Massachusetts has not raised its felony threshold of $250 for theft — the point at which a theft becomes a felony crime — for decades, meaning that over time, those guilty of small thefts have increasingly faced prison. By raising the felony threshold to $1,000 with this new legislation, Massachusetts joins other states in reserving the use of prison for more serious crimes. Data from states that raised felony thresholds demonstrate that doing so doesn’t have an adverse impact on crime.
  • Increased use of diversion. The nation’s jails and prisons, including those in Massachusetts, house far too many individuals suffering from mental illness or substance abuse issues. In Boston’s Suffolk County Jail, 85 percent of people are incarcerated for drug or alcohol offenses, and more than 42 percent have mental health problems. With this reform, Massachusetts will require all district attorneys to create pre-arraignment diversion programs for veterans, individuals with substance abuse issues, or people suffering from mental illness. These alternatives to incarceration have shown promise of preventing repeat contact with law enforcement and steering people to needed treatment and services. The new law also expands restorative justice diversion programs that aim to reduce incarceration and repair wrongs of crime.

The reform was guided through the Massachusetts Legislature in large part due to the incessant but gentle efforts of Sen. Brownsberger, a former state Assistant Attorney General. Sheriff Koutoujian, who is also a member of Law Enforcement Leaders, has been pushing for these reforms for years, too, publicly advocating for specific policies such as bail reform and regularly meeting with legislators to discuss these changes. This was a combined effort by leaders of both parties in the Massachusetts House and Senate, national groups such as the Pew Charitable Trusts and the Council of State Governments Justice Center, and state groups such as Massachusetts Institute for a New Commonwealth, and law enforcement.

While Massachusetts is one of the “least incarcerated” states in the U.S. — locking up people at less than half the U.S. average overall — its rate of incarceration still remains far higher than in most other countries. That’s why this reform effort is so critical. It embraces the need for sentencing reform, as highlighted in the Brennan Center’s recent criminal justice agenda. And, it sets a strong bipartisan example for states, Congress, and the White House to follow. They would be wise to pay attention and start following suit.