DA Marian Ryan, Rep. Chris Markey and ACLU’s Rahsaan Hall Discuss Criminal Justice Reform in the Commonwealth

We have spent this entire legislative session focused on the debate over criminal-justice reform.  As we’ve noted here, we released a report last fall, No Time to Wait, in the run-up to the floor debate and vote held in both the State Senate and the House.

Now that both bodies have produced their own blueprints for reform, the next step—hashing out compromises on the many differences between the House and Senate bills—is in the hands of a six-member conference committee appointed toward the end of 2017.  Their work, as is typical, is being conducted behind closed doors, offering little insight into their progress toward final legislation.

So it was informative and timely for us to welcome three major players in that debate to the BBA this week, to get their takes on what they’d each like to see as part of a criminal-justice package, and how they see the issues from their perspectives:

• Since 2013, Marian Ryan has been the District Attorney for Middlesex County—the largest county in Massachusetts. She broke with the rest of her colleagues to endorse the Senate’s criminal-justice bill, and she recently made news with her decision to instruct her ADA’s to forego cash-bail requests in non-violent, low-level cases in the district court.
• State Representative Christopher Markey previously served as vice-chair and acting co-chair of the Legislature’s Judiciary Committee, and on the working group for the Council of State Governments’ (CSG) recent review of the Massachusetts justice system. Following 16 years in the Bristol County DA’s office, he now operates his own law practice.
• Rahsaan Hall, former co-chair of the BBA’s Civil Rights & Civil Liberties (CRCL) Section, is the Director of the Racial Justice Program for the American Civil Liberties Union of Massachusetts. In that capacity, he is one of the state’s leading advocates for broad and durable criminal-justice reforms. Rahsaan previously worked as an ADA in Suffolk County.
• Natashia Tidwell of Hogan Lovells, current co-chair of the BBA’s Civil Rights & Civil Liberties Section, moderated the discussion, which was sponsored by both the CRCL Section and the Criminal Law Section.

Tidwell started by asking each panelist where they saw the most-pressing need for reform in the current system, and Rep. Markey pinpointed drug offenses—including the importance of a shift toward a public-health approach, and away from “tough on crime” policies that have ignored the need for treatment.  Our criminal-justice system isn’t equipped to act as a social-justice system, but the tools are there to direct individuals toward resources that can support them; we just need to be more creative and provide incentives for all stakeholders—judges, prosecutors, defense attorneys, and lawmakers—to act on them.

For Hall, racial disparities in the Commonwealth must be addressed immediately.  What we have now, he says, is more of a criminal-legal than a criminal-justice system, because justice is being denied to so many.  These disparities—which are among the worst in the nation for black defendants and the absolute worst for Latinos and are exacerbated at every point of contact—undermine the argument that our incarceration rate is lower than most other states.  He outlined data showing that mandatory-minimum sentences help drive that problem.  For example, three-quarters of prisoners serving such sentences for drug crimes are people of color.  (These same disparities were addressed in the BBA Report, which reiterated our opposition to mandatory minimums and called, once again, for their repeal in all drug cases.)

DA Ryan talked about her efforts to treat defendants as individuals and focus more on preventing recidivism rather than pushing cases through the system en masse—which she sees as merely kicking the can down the road.  By the time someone is processed through a DA’s office, something has gone very wrong in their life, and frequently it’s the result of co-occurring problems such as substance abuse, mental-health, or social disorders.  She advocates for new approaches to break the cycle of recidivism, which is too often a multi-generational one.

One such alternative approach the DA has embraced—overcoming her own initial skepticism, she said—is restorative justice, which brings both victim and offender together, alongside law-enforcement and a judge, but outside the court system.  (The BBA’s PILP program held a symposium on restorative justice in 2016.)  DA Ryan has observed these “circles” and witnessed transformation there unlike any she has seen in the traditional justice system.

Hall would like to see more mandated sharing of data from every corner of the justice system, in part as a means of addressing disparities.  “You can’t manage what you don’t measure,” he said.

When asked what reforms they’d like to see included in legislation, Hall said we need to act on “front-end” reforms—such as keeping people from entering the justice system in the first place and reforming charging practices—as opposed to the back-end focus that the CSG group settled on.  He feels an urgency now, because while the pendulum has swung toward consideration of smarter criminal-justice policies, he fears that this year’s legislative package may be the last opportunity to achieve significant change for the next decade.

Rep. Markey returned to mandatory minimums, arguing that while there is a place for such sentences in a prosecutor’s arsenal—such as in helping to make a case against a violent offender—they can produce unjust and “ridiculous” imbalances, for example when a drug offense produces a longer sentence than the rape of a child.  He’d like to see legislation address that, perhaps in part by requiring judicial findings or allowing part of a mandatory minimum to be served under community supervision (although he worries that we have too many people on probation already).  But he also feels that prosecutors have the tools they need to handle their cases, even if mandatory minimums went away entirely.

He further decried the increase in collateral consequences that ex-offenders face and argued that judges should have the authority to deal with charges in a way that obviates them.  DA Ryan added that her office offers diversion to defendants for drug crimes, juvenile offenses, and young-adult offenders, so as to relieve them of the burden of collateral consequences, where appropriate.

Hall would like to see more mandated sharing of data from every corner of the justice system, in part as a means of addressing disparities.  “You can’t manage what you don’t measure,” he said.

Both DA Ryan and Rep. Markey said that, in order for meaningful reforms to occur, all stakeholders in the system must be willing to yield some of their power for the greater good.  And in response to a question from former US Attorney Carmen Ortiz, they both agreed that people need to step outside their comfort zones and addressed the issue of educating law enforcement on best practices: The DA said she and other law-enforcement officials she’s worked with in Middlesex County have been able to do that.  And Rep. Markey singled out police officers, who he said were more professional than ever these days, and understand that sometimes the people they encounter just need a second chance.

On that note, we hope this constructive dialogue is mirrored across the street within the conference committee.  We look forward to their end product, and we hope that they will move forward on each of the six keys issue areas that our No Time to Wait report addressed.

—Michael Avitzur
Government Relations Director
Boston Bar Association