Massachusetts State House.
Policy Library

MA Legislature Advances Criminal Justice Legislation

November 15, 2017

Now that both the State Senate and State House of Representatives have passed bills to make sweeping reforms to the criminal-justice system in Massachusetts, the stage is set for leaders in each house to appoint members of a six-person conference committee.  Those conferees will face the daunting task of finding compromise language on a wide variety of issues covered by the respective bills.  Some topics addressed in one bill were entirely left out of the other.

Based on the report of the BBA’s Criminal Justice Reform Working Group, we focused our advocacy on the six areas in which the Working Group made recommendations.  On the whole, we were pleased that each house’s bill would make significant progress in all of these six areas.  Here’s a snapshot of some of our key recommendations, and the action that’s been taken thus far by legislators:

  1. Increasing opportunities for pre-trial diversion for more defendants. (Currently Massachusetts has no statewide coordinated system for pre-trial diversion.)
  • We were pleased to see that both bills include provisions that would remove the age restriction on diversion programs in District Court.  The House bill would also require the creation of pre-arraignment programs for certain groups.
  • We recommend going further, to make all non-violent offenders with no prior felony convictions eligible for consideration for pre-trial diversion.
  1. Adopting substantial reforms to the Massachusetts cash bail system so that defendants are not incarcerated before trial simply because they cannot afford bail.
  • Specifically, we recommend that the recent decision by the Supreme Judicial Court in Brangan v. Commonwealth be codified, to ensure that defendants are not held solely because they are poor.
  • The two bills take different approaches toward achieving bail reform, but on this critical issue they agree with our Working Group: No defendant should ever be incarcerated before trial simply because they cannot afford bail.
  1. Repealing mandatory minimum sentences, particularly for drug crimes, which are primarily driven by drug weight and do not permit judges to evaluate a defendant’s role in the drug distribution.
  • Again, each house would eliminate some mandatory minimums for drug offenses, in recognition of the fact that this has been a misguided effort to address substance addiction.
  • The current scourge of opioid addiction has brought renewed, and well-deserved, attention to the issue—and led some law-makers to resort to new application or enhancement of mandatory minimums in response.  But this blunt tool has already been shown to offer no solution to such a complex public-health problem.
  • Consequently, the BBA continues to recommend the elimination of all mandatory minimums for drug offenses, so that judges can craft individualized sentences, in the interest of justice, after hearing from both sides at the conclusion of each case.  We are hopeful that a provision in the Senate bill, to establish a commission that would study the effectiveness of mandatory minimum sentences, can offer a road map toward that goal in the near future.
  1. Ensuring that ordering payment of multiple fines and fees does not effectively criminalize poverty and impede successful reentry after incarceration.
  • Both houses seek to establish a uniform standard for what constitutes “substantial financial hardship,” such that a judge may waive or reduce a fine.
  • We believe that the conference committee should further adopt our recommendation of completely eliminating counter-productive parole and probation fees after release.
  1. Expanding recidivism reduction programs to advance public safety.
  • Separate legislation to implement consensus recommendations from the report early this year by the Council of State Governments (H. 4012, which the House also passed) would increase incentives for certain incarcerated individuals to take advantage of these programs.
  • The BBA recommends extending these incentives for participating in and completing programs to all inmates who may be released from state prison.
  • This will further reduce recidivism and save money by freeing up beds. Such programming is not a reward but rather a means to protect public safety.
  1. Reforming the state’s criminal record laws, also known as the Criminal Offender Record Information (“CORI”) laws that adversely impact the ability of ex-offenders to find jobs.
  • Both houses share our support for a major reduction in the waiting periods before records become unavailable to the general public.  Although their two bills agree on a reduction from 10 to 7 years for felonies and from 5 to 3 years for misdemeanors, we actually called for the former to be reduced to 5 years, and our report demonstrates that there is academic research behind this recommendation.
  • We are also call for automatic sealing when charges are dismissed prior to arraignment, or after a defendant successfully completes a diversion program—unless the judge finds, upon objection from the District Attorney, that doing so would not serve substantial justice.

Once the members of the conference committee are named, we will reach out to them to make clear our positions on all provisions within these six areas that are still in conflict.  And we will of course keep you informed as that process plays out, potentially over all the remaining eight months of formal legislative sessions this term.

—Michael Avitzur
Government Relations Director
Boston Bar Association