I wish to thank Jean Trounstine for contribution to this post.
On June 19, 2017, I spent the afternoon and early evening at the Massachusetts State House listening to testimony regarding several bills aimed at reforming incarceration policies. The large Gardner Auditorium was packed with people wearing T shirts calling for the end to mass incarceration, solitary confinement, mandatory minimum sentencing, and parole reform, and for “jobs not jails.” The members of the Joint Committee on the Judiciary listened intently to testimony from criminal justice experts, legislators, sheriffs, attorneys, physicians, and people personally impacted by criminal justice policies. With the exception of a representative of the association of Massachusetts District Attorneys, speakers from all over the Commonwealth spoke to failures of current policies to keep people safe, to safeguard human rights of prisoners, and to provide appropriate health care services to justice-involved individuals.
It all seemed so promising. If only this whole crew hadn’t been there before.
Nearly all of the bills have been proposed in the past (albeit sometimes in slightly different forms). None of the bills seemed terribly controversial, at least to me. None proposed a complete overhaul of the criminal justice system. Rather, the bills, cumulatively, addressed several of the most obviously ineffective or inequitable current practices.
House Bill 74 – implementing programs to reduce recidivism
The first bill introduced, House Bill 74, calls for implementing the recommendations made as part of an extensive review conducted by the Council of State Governments Justice Center and chaired jointly by Governor Baker, the Lieutenant Governor, Senate President, Speaker of the House of Representatives, and Chief Justice of the Supreme Judicial Court.
As a sociologist, I often find political discourse and machinations to be a bit confusing. In this case, it was hard to get my head around reiterations that “all the players” were involved in crafting this legislation. Other proponents expressed pride that “all justice partners”; that is, representatives from all three branches of state government, worked on the bill. I also heard the term “all the stakeholders”. However, there did not seem to be any representation of incarcerated or formerly incarcerated men and women on the committee that crafted the bill. Surely “all the stakeholders” include the people most directly affected by these policies. Indeed, I’d argue that they – not politicians or bureaucrats — have the most at stake in decisions regarding prison policy.
Though many people involved with the court and prison systems had hoped for far-reaching recommendations from this review and committee, the bill focuses rather narrowly on reducing recidivism. While that certainly is an important goal, it does not speak to disrupting the school-to-prison pipeline or to other policies and social conditions that send people into the prison system to begin with.
The recommendations to reduce recidivism center on prisoner education, opportunities for early release for good behavior, and post-release supervision. A centerpiece of the bill calls for rewards for good behavior (for example, completing vocational training programs). The rewards consist of shaving days off the sentence and adding them to the period of parole (community supervision). I strongly support efforts to reduce incarceration rates, but I am concerned that lengthy and intensive supervision on parole can lead to re-incarceration due to technical violations of the conditions of parole. In my own ongoing research with criminalized women in Massachusetts, I’ve seen intensive supervision with requirements for frequent meetings with parole officers, urine tests, proof of attending programs, etc. interfere with the ability to hold down a job and manage the myriad other responsibilities that are part of modern life.
H.74 emphasizes expanding programs of various sorts: pre-trial, during incarceration and post-incarceration. Programs can be good, bad or indifferent, but programs are not a substitute for the material resources most justice-involved people desperately need: Housing, decent jobs that pay living wages, family reunification. I am particularly troubled by a lack of clarity regarding mandatory program attendance for pre-trial individuals. Given that people who are awaiting trial have not been found guilty of a crime, it is be problematic to require them to attend any sort of program.
The consensus at the hearing is that the measures to reduce recidivism outlined in this bill should be the start, not the totality, of criminal justice reform in Massachusetts. No one testified against the bill but many said in their testimony that it did not go far enough.
S819 and H741 – bills eliminating mandatory minimum sentences for low level drug crimes
More substantively, Senator Creem spoke to S819 and H741 – bills eliminating mandatory minimum sentences for low level drug crimes. She, and other supporters of the bills, made the important points that mandatory minimums have not been effective in reducing drug use; they have led to mass incarceration; they have ruined lives of young people locked up for years on trafficking chargers for what essentially amounted to sharing illicit substances with friends; and they clearly have disproportionately impacted racial minorities. There were also panels of sheriffs, defense attorneys, impacted people, and Senators Evandro Carvalho and Sonia Chang-Diaz, both who represent districts where mandatory minimums are levied with unrelenting consistency.
Collectively, they made the point that mandatory minimums undermine the American system of justice by putting power in the hands of prosecutors rather than judges. Prosecutors decide whether the charge will be one that automatically triggers a mandatory minimum or not. And prosecutors can use the threat of mandatory minimums to encourage people to “choose” to plead guilty to a lesser charge. Opponents of this practice argued that prosecutors in essence function as judges, taking away from individuals the right to a trial in front of a judge who hears arguments both from the prosecution and the defense, and who can evaluate the particular circumstances of the individual and the case.
The only opposition to ending mandatory minimums came from DA Conley of the District Attorney’s Association. Conley argued that judges are “out of touch with what goes on in communities” and that prosecutors should properly have sentencing discretion. Many people testifying after the DA rebutted his claims, some of which were not based in fact.
House Bill 3121, Senate Bill 779, An Act Related to Parole
A panel of lawyers, activists, and two formerly incarcerated testified about the importance of reforming the broken parole process in Massachusetts without which packed prisons keep expanding. They spoke of how the Parole Board needs more expertise from sociologists, psychologists, addiction and mental health specialists, and juvenile justice experts. In other words, to judge the fate of our prisoners, our Board needs more than criminal justice backgrounds. Two formerly incarcerated men talked of how the process had been daunting and almost impossible to deal with without attorneys. Massachusetts currently has a dismal paroling rate which is also costing the state $53,000 for each prisoner who could be concluding their sentence in the community, going to school, working, and at least aiming to give back to their communities.
H.2248 and H.2249 – bills limiting the use of solitary confinement
Speakers testified regarding a bill to reform (oversee, control and minimize) the use of solitary confinement in Massachusetts jails and prisons. Attorneys, advocated and families of prisoners described its overuse in the Commonwealth; to the long-lasting damage it causes prisoners; and to its utter failure to make prisons or communities safer.
A representative of Maine’s ACLU testified that six years ago Maine passed solitary confinement reforms similar to those proposed in Massachusetts. In that time, Maine reduced the use of solitary confinement by 90%; prisons have become safer; and medical and emergency rooms visits have been reduced.
H719, H720, H721, H2248, H2249 – bills regarding treatment of mentally ill prisoners
Rep. Ruth Balser introduced five bills regarding the treatment of mentally ill and addicted prisoners. Among other measures, she called for Department of Mental Health oversight of mental health services in Department of Corrections facilities. (These services currently are outsourced to private companies.) The bills generated little discussion. I’d like to believe that this reflects a clear consensus regarding the important issues addressed in the bills.
H 3494 — creating a medical parole board to consider medical release from prison
This bill would allow for early release of people with extremely serious or terminal conditions. Physicians testifying in favor of the bill spoke of paraplegic prisoners, prisoners undergoing intense chemotherapy, and prisoners with blood terminal disorders developing infected sores from the use of shackles. No opposition to the bill was voiced at the hearing.
Two bills regarding women were heard
H.3586 – An act relative to justice-involved women
Representative Kay Khan presented H.3586 which brings together a call for careful collection and analysis of data, policies and programs for justice-involved women.
The bill requires the commissioner to evaluate the program delivery system for existing programming for parenting skills and related training for incarcerated women and the effectiveness of these programs. In my own research I see women repeatedly cycle through programs of various sorts. I have found it near impossible to learn whether these programs are proven effective. Often, no data are available at all. At best, data regarding the completion rates of programs are available. Completion rates, however, do not get at whether programs actually contribute to individuals going on and implementing the skills taught in the program.
The bill also calls on the commissioner to develop programs with a focus on family preservation and reunification. In my research I have seen that a great deal of the programming for justice-involved women encourages women to “put yourself first” and “do you!” Given that the vast majority of justice-involved women are mothers – and that all justice-involved women are daughters, sisters, cousins, etc. – it is appropriate for program emphasis to be placed on family preservation and reunification. Let me be clear, these goals are not simply a matter of instilling the right attitude in women or even teaching them skills. These goals require that concrete, material resources such as appropriate housing are put into place for justice-involved women and their families. Many of these women need affordable housing, comprehensive day care and after school programs, and hiring practices that make it feasible for parents with criminal records to be become employed.
Senate Bill 770, An Act providing community-based sentencing alternatives for primary caretakers of dependent children who have been convicted of non-violent crimes
Late in the day, way past school pick-up time, dinner time, kids’ bath time and homework time, we got to hear testimony from formerly incarcerated mothers and their children.
When mothers are sent to prison, their children become collateral captives, following their mothers into the institutional circuit and often ending up in foster care or living with an extended family member who may be less able to parent than the incarcerated mother.
In many cases, the children of incarcerated mothers are given into the custody of family members, a scenario that is not without problems. Often, the caregiver is a grandmother who, while well-intentioned, is not physically able to keep up with young children. Children hear relatives speak ill of their incarcerated mothers, or feel forced into choosing loyalty to their mother or to another family member. In a few cases, custody actually has gone to a family member who sexually abused the mother when she was a child, or who implicitly or explicitly allowed that abuse to go on.
Foster care, of course, carries its own set of problems, ranging from frequent changes and churns to the well-documented overuse of prescribed psychotropic medications. For mothers, separation from children is experienced as a severe and ongoing trauma. These mothers frequently describe feelings of extreme helplessness, powerlessness, guilt, anxiety and panic, often leading to increased prescriptions of psychotropic medication.
The testimony of formerly incarcerated mothers and the testimony of children of incarcerated parents made it clear that it is in the interests of families to keep mothers at home, in the community, with adequate support (except, of course, in those few cases where mothers have engaged in acts of violence.) Creating community based sentencing alternatives for primary caretakers of dependent children will allow many more children to benefit from the on-going presence of their mothers at the same time as it will allow mothers to develop the resources, skills and support networks that they need in order to be effective parents.
This bill, too, has been heard before. Lining up to testify felt a bit like a reunion. Maybe this time we’ll see some real change.