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Massachusetts has a blueprint for what's next in criminal justice reform

"I think that we are in a moment now where there is bipartisan support for criminal justice reform, where policymakers really understand that mass incarceration has not increased public safety," one expert said.
Image: Battling Addiction In A County Jail
Inmate Chandler Lackey, 22, writes down on paper an Inventory of Resentments, a pilot program with a navigator (mentor) as part of STOP (Substance Treatment Opportunity Program), at the Worcester County House of Corrections in West Boylston, Mass., on Sep. 23, 2019.David L. Ryan / Boston Globe via Getty Images file

During the 1988 presidential race, George H. W. Bush's campaign released a notorious advertisement featuring convicted Massachusetts murderer Willie Horton, who committed heinous crimes while out on a prison furlough program championed by Massachusetts Gov. Michael Dukakis, the then-vice president's Democratic rival.

The ad was credited with sinking Dukakis' campaign, stoking racist fears and stereotypes in the era of the war on drugs, which largely targeted black communities. Two years later, during his 1990 campaign for Massachusetts governor, Republican Bill Weld vowed to reintroduce prisoners to “the joys of busting rocks.”

But three decades later, Democrats and Republicans in the Massachusetts Legislature almost unanimously passed a landmark bill that reimagined nearly every facet of its criminal justice system, which was signed into law by Republican Gov. Charlie Baker.

Experts say it's part of a nationwide trend among states, which are moving away from incarceration and policies that are tough on crime and instead focusing on sentencing changes, diversions to prison alternatives and robust re-entry programs.

And a year after the passage of the First Step Act, a bipartisan federal criminal justice bill signed into law by President Donald Trump, efforts at the national level to overhaul the criminal justice system have largely focused on reducing the federal prison population by easing sentencing laws stemming from the war on drugs and supporting rehabilitation programs inside prisons.

But experts point to Massachusetts as one of the blueprints for what's next for criminal justice reform as lawmakers and advocates argue more changes are needed at the federal level.

The Massachusetts law eliminated mandatory minimum sentences for certain low-level drug offenses, increased the use of treatment as an alternative to prison for drug crimes, raised the minimum age a child can be held criminally responsible from 7 to 12, overhauled the state's cash bail system by allowing judges to consider a defendant’s ability to pay, and allowed some records for juvenile and since-legalized crimes, such as marijuana possession, to be expunged.

Lawmakers who worked on the bill said it has helped the state move away from incarceration as punishment and reduce racial disparities in the criminal justice system.

“We examined the system from soup to nuts — from the question of what is criminal, what is not criminal, to the question of diversion, to bail, to sentencing and mandatory minimums, to issues in prison, including the issues of restrictive housing, most importantly, and also the issue of good time credits,” said state Sen. William Brownsberger, a Democrat who is the president pro tempore of the chamber and also a lead sponsor of the bill.

“We assembled basically all the good ideas that have been on the table, some of which were fairly new and others of which had been on the table for years.”

Image: Charlie Baker
Massachusetts Gov. Charlie Baker speaks during the panel Our Children, Our Future: Rethinking Child Welfare, at the National Governor Association 2019 winter meeting in Washington, on Feb. 23, 2019.Jose Luis Magana / AP file

During the bill signing in April 2018, Baker called the legislation “a product of many years of hard work, collaboration and compromise by everyone involved” that “will make for a better criminal justice system.”

Other Republican lawmakers praised the law, as well. Rep. Susan Williams Gifford, who is part of the Republican leadership in the Massachusetts House, lauded the bill for strengthening the state’s opioid laws, setting harsher penalties for assaulting a police officer and creating a rape kit database.

Brownsberger said the bipartisanship on the legislation came naturally because both sides had worked closely over the years examining data, talking to advocates and experts, and looking at best practices in other states.

“It's important to understand that any big legislative change has to build up over a period of years really, during which people examine their assumptions, becoming willing to entertain two approaches,” he said. “Things take some time to come together, but the stars really were aligned in that legislative session, and we were able to get some big things done through a lot of collaboration.”

“We didn't go over the top on any one single thing," Brownsberger added. "But we took major steps in dozens of areas, and that's what made it such a big bill.”

Image: Senator Will Brownsberger
Massachusetts State Senator Will Brownsberger poses for a portrait at the Massachusetts State House in Boston on Oct. 2, 2017.Suzanne Kreiter / Boston Globe via Getty Images file

Leon Smith, the executive director of Citizens for Juvenile Justice, a Massachusetts-based nonprofit that works with a coalition of criminal and juvenile justice organizations and advocated for the bill, said there was some pushback to the reforms because Massachusetts is among the states with the lowest incarceration rates. But he said racial disparities still exist, particularly the proportion of youth of color in the state's criminal justice system.

"The low incarceration rate that is often celebrated in Massachusetts hides worsening rates of racial and ethnic disparities in justice system involvement and the significant harms of system involvement and related collateral consequences on young people as they try to grow up, mature and transition into adulthood," he said. "Thus, the 2018 reform campaign focused on preventing young people's entry into the juvenile justice system as a way to prevent later criminal justice system involvement, particularly as it related to low-level offenses."

Many states around the country have made changes to criminal justice systems. This has been prompted, experts say, by the costs of incarceration or an understanding that incarceration is not effective at reducing crime. Thirty-five states have seen both a reduction in crime and incarceration through various changes over the past decade, according to a report by the Pew Charitable Trusts.

And red states, such as Georgia, Mississippi and South Carolina, have led the trend. Since 2012, Georgia has made a host of changes aimed at reforming its system, including implementing rehabilitation programs in its adult and juvenile systems as alternatives to incarceration to reduce recidivism, banning the box that prospective employees check to disclose past criminal histories, and giving judges more discretion to impose sentences below the mandatory minimums.

South Carolina and Mississippi also enacted sentencing and other changes and have seen their respective prison populations decline by 14 and 18 percent between 2008 and 2016 as a result, according to the Sentencing Project.

"I think that we are in a moment now where there is bipartisan support for criminal justice reform, where policymakers really understand that mass incarceration has not increased public safety, that it drives and reinforces deep-seated racial inequity and disproportionately punishes marginalized communities," Lauren-Brooke Eisen, an expert at the Brennan Center for Justice, said.

However, despite the sweeping overhaul, much of the effects of Massachusetts' law have yet to be fully realized, advocates said.

“I think we're still waiting to see the overall impact of the reforms,” Rahsaan Hall, the director of the Racial Justice Program for the Massachusetts chapter of the American Civil Liberties Union, told NBC News. “Our data collection systems within the criminal legal system are substandard, and so we haven't, as advocates, we haven't been able to get a full picture of how some of these reforms are playing out.”

However, that does not mean the reforms aren't working, Hall said.

“We know that there are fewer people being saddled with fines and fees because some of those fines and fees have been taken off the table," Hall said. "We know, for instance, that fewer people are charged with mandatory minimum sentences for drug offenses because some of those offenses had been taken off the table. We know that judges are supposed to now take into account a person's ability to afford bail before setting conditions with bail."

Smith said that data is limited, but his organization has found that delinquency court filings are down 33 percent and juvenile arrests, 32 percent.

Some provisions Smith's organization advocated for were defeated during the debates over the law, but his organization and others are pushing a legislative campaign to adopt additional changes, such as raising the age of juvenile court jurisdiction to age 21 and increasing access to expungement for juvenile records, he said. Earlier this year, Massachusetts lawmakers also introduced legislation to end life without parole, allowing those serving life sentences to be eligible for parole after 25 years.

Hall agreed that the state law has given advocates a clearer road map to push for more shifts.

“I think it was an important step in communicating that the old models of the criminal legal system no longer work and that we need to think about and embrace more progressive and transformative models, models that contemplate harm reduction as opposed to being tough on crime,” he said.