Massachusetts Senate Passes Sweeping Criminal Justice Reform Bill, with Senator Jason Lewis’ Support

The Massachusetts Senate passed, by a vote of 27-10, a comprehensive criminal justice reform package that updates decades old criminal sentencing laws to improve outcomes of our criminal justice system. The bill is designed to strengthen public safety while improving outcomes in our justice system. Among the provisions included in the bill are repealing ineffective mandatory minimum sentences for low level drug offenders, reducing and eliminating overly burdensome fees and fines, reforming the bail system, allowing for compassionate release for infirmed inmates, and reforming the juvenile justice system.

The bill, An Act Relative to Criminal Justice Reform, is the result of lengthy work researching best practices, common sense solutions, and procedures and policies that have been effective in other states, in order to produce legislation that will enhance diversion from the criminal justice system, repeal outdated mandatory minimums for low level drug offenders, lower costs, and produce better outcomes.

“These reforms will help address racial injustice, reduce recidivism, improve public safety, lower the taxpayer-funded costs of incarceration, and significantly improve the quality of life in many of our most disadvantaged communities across the Commonwealth,” said Senator Jason Lewis.

According to the Southern Poverty Law Center, “roughly 2.2 million people are behind bars in the United States, an increase of 1.9 million since 1972. We have the world’s largest prison population – with one-quarter of its prisoners but just 5 percent of the total population.”

As part of a nationwide trend in addressing the inequities in the bail system, the bill reforms the current bail system of the Commonwealth by setting strict guidelines for judges when setting bail for a defendant. The bill rewrites the existing bail statute to create a clear road map for decision-making consistent with the Supreme Judicial Court’s recent ruling that cash bail must be affordable. The bill goes beyond that guidance to further strengthen the procedural barriers to setting bail that is higher than a defendant can afford, to ensure individuals are not held solely because they are unable to pay.

Often times, defendants who cannot afford bail are incarcerated before trial with no ability to work, take care of their families, or receive important services such as addiction counseling. In addition, the bill makes dangerousness hearings available in more cases and allows longer detention of defendants on a dangerousness finding, strengthening the mechanism for holding people who are actually dangerous.

The bill also addresses the issue of “fine time” where the state incarcerates individuals who are unable to pay court fines and fees, equivalent to a modern day “debtor’s prison.” In November 2016, the Senate issued a report highlighting how these fees, including $150 fee for legal counsel even if a person has been ruled indigent, starts a vicious cycle of incarceration and punishing low income defendants. The bill sets a schedule to reduce and eliminate these fines and fees over time to protect indigent defendants. In addition, the bill reduces and eliminates monthly parole fees for individuals on parole.

The bill would also make several changes to limit unnecessary entanglements with the criminal justice system through sentencing reform and the expansion of diversion. Massachusetts law currently uses the term “trafficking” to refer to the wholesaling of drugs and distinguishes trafficking based on the weight of the material sold. Differentiating between drug retailers and wholesalers, the bill repeals mandatory minimum sentences for all retail drug-dealing offenses, and repeals existing mandatories for low-weight cocaine sales. Under the bill, one would have to sell over 100 grams of cocaine to be subject to a mandatory minimum sentence.

Recent polling has shown overwhelming public support for repealing mandatory minimums. In a 2016 nationwide poll by the PEW Charitable Trusts found that nearly 80 percent of people support the repeal of mandatory minimums for non-violent drug offenders and nearly three-quarters support repeal of mandatory minimums for all offenses. In two separate Massinc polls, one in 2014 and one in 2017, “just 8 percent of voters prefer mandatory minimums, while the vast majorityare split between having judges refer to sentencing guidelines (46 percent) or giving judges complete discretion in sentencing (41 percent).”

The bill does not repeal mandatory minimums for opioid trafficking and provides that trafficking in higher weights of emerging, highly potent, synthetic opioids like fentanyl should be subject to the same mandatory minimums as natural opioids like heroin and morphine. The mandatory minimums that would not be repealed by this bill, including those for heroin trafficking and high-weight cocaine trafficking, account for approximately 2% of the sentenced drug cases resulting in incarceration.

In addition to sentencing reform, the bill would make diversion to a program, as an alternative to the criminal process, more available for young adults and for people with substance use disorders, while supporting the expansion of restorative justice approaches in appropriate cases. Through these proposed reforms, the bill seeks to help drug users access the treatment they need, increase the availability of meaningful diversion opportunities, and reduce preventable contact with the criminal justice system.

The bill also updates various areas of the law related to juvenile justice, to encourage rehabilitation and positive future outcomes, reduce recidivism and ensure fair treatment for young people. The bill raises the age of juvenile jurisdiction to include 18 year olds, holding young adults accountable for their mistakes while ensuring access to developmentally appropriate rehabilitative and educational services.

Recognizing that juveniles have not reached full adult maturity, the bill expands opportunities for the sealing and expungement of records, including the creation of a process for the expungement of juvenile misdemeanor records. The bill also decriminalizes in-school disorderly conduct, to reduce the use of arrest as a tool of school discipline.

In addition, the bill codifies the constitutional right of indigent juvenile offenders to counsel and expert assistance for parole hearings, as established by the 2015 Supreme Judicial Court decision in Diatchenko II. The bill creates a parent-child privilege to allow parents to help their children in the court system without being forced to testify about these conversations.

Senator Lewis was able to secure two amendments to the Senate’s final bill. The first amendment pertains to “civil forfeiture,” a process by which the government can take and sell a person’s property without ever convicting, or even charging, the person with a crime. Because these cases are technically civil actions, property owners receive few, if any, of the protections that criminal defendants enjoy. This amendment requires law enforcement agencies to document all instances of civil forfeiture to ensure that the process is not being abused. The second amendment pertains to “huffing.” Recognizing that individuals may inhale various substances in order to get high, the amendment replaces “vapors of glue” in the driving under the influence (DUI) statutes in favor of a broader definition that includes other substances such as chemicals found in aerosol can products like airduster and whipped cream. Inhaling or “huffing” these vapors is not only injurious to the person’s health, but it also inhibits the person’s motor skills, which, in turn, impairs driving.

Since 2007, thirty-three states have reformed or revised their criminal justice system to reduce incarceration rates, cut costs, reduce recidivism, and improve outcomes. Massachusetts reformed some sentencing provisions in 2012.

The bill now goes to the House of Representatives for consideration.