By Joel Pentlarge and Lloyd Fillion
On July 23, 2008 the Joint Committee on the Judiciary polled its members on whether to report favorably to the House a re-draft of House Bill 4476, now numbered as H. B. 5004. House Bill 4476 was Governor Patrick's version of CORI reform. House Bill 5004 reflects a compromise which seeks to appeal to competing interest groups. It contains elements which CJPC supports including: CORI reform, work release for prisoners serving mandatory minimum sentences for drug offenses, and shrinking the size of school zones to 100 feet for enhanced drug dealing. However, it also contains a form of mandatory post-release supervision which CJPC opposes.
Proponents of criminal justice reform are divided on whether to support this bill as it is currently written realistically it unlikely that any significant amendments will be made in the remaining three days of the legislative session and the bill still pass.
What follows are a section by section Summary with commentary, and then an Analysis. The full text of the proposed new draft is available at the CJPC web along with the Judiciary Committee's own summary.
Section 1 provides for the addition of the Secretary of Labor and Workforce Development to the Criminal History Systems Board. This recognizes that CORI has a direct impact both on the employability of many former offenders and on the size of the work force by limiting the number of citizens available for employment in Massachusetts.
Section 2 increases the civil fine that can be imposed by the Criminal History Systems Board from $500 to $5,000 for unlawfully disseminating CORI information.
Sections 3, 7 and 8 change the standard of culpability for unlawfully disseminating CORI from "willfully" to "knowingly". Sections 2 and 3 are an attempt to strengthen the prohibition against spreading CORI to people who have no need to know. Sections 7 and 8 strengthen the prohibitions for creating false CORIs or distributing it under false pretenses.
Sections 4, 5 and 9 eliminate the control of the Criminal History Systems Board over the maintenance and dissemination of CORI data, and create a new "criminal justice information services department" to administer the CORI data processing and communication systems. The Secretary of Public Safety would appoint the Executive Director of this new department.
Section 6 makes "the importance and value of successful reintegration of ex-offenders" one of the stated goals of the CORI bureaucracy.
Section 8 also expands the crime of unlawfully communicating CORI by making it unlawful if a person "requests, obtains or seeks to obtain, uses, or sells" CORI.
Section 10 makes the oversight of the contemplated trial of a mandatory post-release parole system, as set forth in Section 12 below, a responsibility of the Parole Board.
Section 11 gives the commissioner of the department of correction the discretion to allow prisoners serving mandatory minimum drug sentences to participate in work release and educational programs outside of prison as well as to grant temporary releases for medical or family medical or funereal purposes. Under the current law prisoners serving mandatory minimum drug sentences are not eligible for work release or educational programs on the outside or such temporary personal releases.
Section 12 creates a new chapter of the General Laws, c. 127A, "Mandatory Post Release Supervision" with the following sections:
C. 127A, § 1, requires all prisoners serving sentences of more than one year, whether in a county or state facility, to be subject to mandatory post-release supervision (i.e. parole) equal to 25% of their maximum sentence. This mandatory supervision would be for at least nine months and in no case more than five years. Prisoners eligible for parole or probation or sentenced to lifetime community parole and who are paroled and complete the parole or probation successfully would be exempted from this requirement.
C. 127A, § 2 gives the parole board authority to issue regulations for this program, and makes clear that judges can still impose probation with terms tailored to the particular defendant.
C. 127A, § 3 allows for early termination of post-release supervision after serving nine months of such supervised release, minimally based on success in finding permanent employment, housing, completing counseling or substance abuse treatment, and passing all post-release testing programs (e.g. urine tests for drug usage). Early termination will be governed by regulations to be promulgated by the parole board.
C. 127A, § 4 provides that the parole board can impose intermediate sanctions for violations of the terms of post-release supervision, such increased supervision and/or participation in drug treatment as a sanction for drug usage. Alternatively the parole board can seek additional incarceration for up to the greater of the remaining post-release supervision period or un-served prison sentence, and the prisoner will then still be subject to further post-release supervision equal to what was un-served at the time he/she was violated. If the parole violation constitutes a criminal offense, the sentence for that new offense is added to the incarcerated time and mandatory post-release parole is calculated anew based on the entire period of reincarceration C. 127A, § 5 confirms the conditions of completion of mandatory post-release supervision as set forth in sections 1, 3 and 4 above, and exempts from post-release supervision prisoners who are transferred to another state to serve another sentence equal to or greater than the post-release supervision period otherwise required, or to the custody of the federal government. It also stays post-release supervision for any prisoner transferred to civil commitment for those determined to be sexually dangerous.
C. 127A, § 6 requires the parole board to report to the legislature on or before August 31, 2009, on how many prisoners in county and state facilities in the preceding year had sentences which included a period of post-release supervision. Additionally, the report is to detail:he number incarcerated in county and state facilities subject to mandatory post-release supervision,
* the number who completed the mandatory post-release supervision successfully(given the November 1st beginning date of the act, and that the mandatory supervision can only apply to crimes committed after that date, there should be no releases of any inmate with mandatory post-release supervision prior to August 31st, 2009),
* the number who were eligible for early termination from supervision (this is likely to be none as well),
* a detailing of the criteria for termination from supervision as enumerated in § 3 above and the time the individual has successfully spent in post-release supervision spent satisfying those criteria (it is unclear whether this legislation requires such annual report to list the actual names of individuals in this section or merely aggregate numbers), and
* the names of who violated supervision and were subsequently subject to modification or revocation proceedings, together with copies of reports of such violations/proceeding
C. 127A, § 7 states that this new post-release supervision shall only apply to crimes committed after the effective date of the new act. This ensures that the increased penalties contained in this statute will not violate the ex post facto clauses of the state and federal constitutions.
Sections 22 and 23 of the bill establish a sunset provision which automatically repeals the new c. 127A as of October 31, 2010.
Sections 13, 14, 15 and 16 reduce the time ex-offenders have to wait to apply to have their criminal records sealed, for misdemeanors from 10 years to 5 years, and for felonies from 15 years to 10.
Section 17 exempts sex offenses from ever being eligible for sealing.
Section 18 provides criminal justice agencies with continued access to CORI even though they are sealed.
Section 19 directs the secretary of public safety, in consultation with law enforcement and prosecutors, victim service providers, and the criminal defense bar, to develop guidelines for how law enforcement should respond to sex crimes committed against adults within six months of the effective date of this legislation.
Section 20 makes it a form of illegal discrimination for an employer, landlord or school, or any agent thereof, to use an application which asks if the applicant has been convicted of a crime, or arrested, or accused in any court. This is the "ban the box" provision that CORI reform advocates are seeking. It means that applicants with criminal records will not be automatically screened out from being interviewed; however screeners can still ask in face to face interviews about past criminal records, and approved employers can still do CORI checks. The Mass. Commission Against Discrimination would be in charge of enforcement of this anti-discrimination provision.
Section 21 reduces the size of school zones from 1,000 feet to 100 feet (consistent with the zone for playgrounds and parks) for purposes of imposing enhanced penalties for drug dealing in those zones and it eliminates the mandatory minimum penalty for a first offense of drug dealing in a school zone to two years and decreases the fine that may also be imposed by half. A subsequent offense for a school zone violation would have a mandatory minimum sentence of 2 years.
This bill contains many of the CORI reforms for which CJPC has advocated. However, shortening the times for sealing to criminal records to 3 years for misdemeanors and 7 years for felonies would better match punishment with the evidence of when and who is likely to offend. The research on recidivism indicates that if an ex-offender has not reoffended within 3 years of misdemeanor or 7 years of a felony, then he/she is no more likely to commit an offense than someone with no criminal record. In addition, CJPC would prefer that the record sealing be automatic. Many people with criminal records still do not realize that they can have their records sealed. Finally, CORI will still include arrests which do not lead to indictments or to convictions, a particularly severe problem in inner cities. Indeed, nothing in H. 4005 addresses problems with inaccurate information within CORIs. Therefore granting criminal justice agencies access to sealed CORIs as under §18 remains problematic as allowing prejudicial judgments by those agencies. On balance the CORI reforms contained in this bill are a step in the right direction but there is still much more to be done.
CJPC advocates eliminating all mandatory minimum sentences, especially for non-violent drug offenses as Senator Cynthia Stone Creem (D. Newton) proposed in her bill S. 884. Still, by allowing work release for prisoners serving mandatory minimum sentences, this bill is a small but significant step forward.
In urban areas almost the entire city is within 1,000 feet of a school, park or day care center. This means that virtually all drug dealing offenses in urban areas occur and are charged as school zone offenses, subject to harsh mandatory minimum sentences. This bill, by shrinking the size of school zones to 100 feet and eliminating the mandatory minimum sentence for first offenses, is major improvement.
Mandatory Post Release Supervision
Post-release supervision, or parole, can be a very effective tool to both reduce prison overcrowding and to reduce recidivism. It is possible to make reasonably accurate assessments about which prisoners are most likely to reoffend and which are most likely not to reoffend. Those not likely to reoffend should be paroled as soon as possible to eliminate the unnecessary expense of incarceration and the current overcrowding of our prisons. When parole is used to support re-entry by assisting prisoners with obtaining housing, jobs and services it substantially reduces recidivism. This kind of re-entry support should be provided to all prisoners, as a way of reducing recidivism and thereby reducing crime.
The mandatory parole provided in this bill, in that it does nothing to reduce the number of prisoners incarcerated, and by possibility of extending prison sentences up to 5 years for technical violations of the mandatory parole, might significantly increase the total population incarcerated. Case loads for parole officers would have to be increased substantially, or more funds appropriated to provide for additional parole officers. Although the bill recognizes the importance to released prisoners of housing, employment and services, it does nothing to mandate that parole officers assist prisoners to obtain these critical support services. Finally, this legislation seems to be an end run around a parole board which has been extremely hesitant to grant paroles, as compared to the use of parole just a short time ago; rather than address the problem of lack of parole, resulting in prisoners deciding to "wrap" their sentences rather than applying for a parole unlikely to be given, the legislature proposes extending the actual length of the sentence at a burden to both taxpayers and inmates.
The sunset provision repealing the mandatory parole provisions as of October 31, 2010 means that sentences with mandatory parole will only be imposed during a two year period. Presumably the mandatory parole part of the sentence will still be part of such sentences after the repeal. This could mean that continually up to 30 years after the repeal of C. 127A, prisoners are completing sentences and starting up to 5 years of mandatory parole; court challenges to such repealed mandatory parole are more than likely. Although the statute requires a report by the parole board as of August 2009, this legislation will not become effective until 90 days from enactment, on approximately November 1st, 2008. The report will therefore cover at most only a nine month period in which the mandatory parole is being imposed as part of the sentence, and it will apply only to prisoners who have been sentenced to over a year in jail or prison. At the time the report is issued few if any prisoners will be on the new Mandatory Parole. It will not be possible to judge the effect of mandatory parole until some years later, if at all, unless the sunset clause is repealed.
One good provision of this part of the bill is that it recognizes that parole resources and restrictions should not be wasted on parolees who are successful in getting housing, employment and services by granting them the opportunity to apply for early termination of mandatory parole. This provision should be expanded to all current parolees.
CJPC opposes the mandatory parole provisions of this bill as written.
The bill as a whole is a classic piece of compromise legislation containing components appealing to wide range of legislators and interests. Realistically, in the three business days remaining in the legislative session the bill will be passed without amendments or it will not be passed at all. If the bill is passed there may well be a battle next session over whether to extend mandatory parole beyond 2010. That will be an opportunity to push for meaningful parole reform: parole that shortens prison sentences and provides real support for every prisoner re-entering society. There will likely also be continued pressure for ending mandatory minimum sentencing and for further CORI reforms.
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