This month, Mass Dissent focuses on the criminal justice system, from sentencing through prison visits to prisoner re-entry.  We also showcase a study showing how Massachusetts can save money through reforms in these areas.

Many Massachusetts prisoners should not be incarcerated in the first place, or should be serving considerably shorter sentences. Barb Dougan describes the progress being made to reform mandatory minimum sentencing laws for drug offenders.

For those who are in prison, visits from families and friends can be a life-line, and can help ease the transition to re-entry. Yet the DOC recently proposed drastic restrictions on prison visits – a move that was withdrawn, temporarily at least, in the face of public protest, as Bonnie Tenneriello describes.

A major barrier to successful re-entry, and a major cause of recidivism, is denial of jobs and housing based on a person’s criminal record. The Guild has long supported reform of Criminal Offender Record Information (CORI) to make it less misleading and less available to those who don’t need it. Wilnelia Rivera tells us about the Commonwealth CORI Coalition’s efforts at reform and pending legislation.

Tying together all of the above, a recent study from the Crime and Justice Institute shows that harsh sentencing, tough parole policies, and poor re-entry planning are causing Massachusetts’ corrections and parole budgets to stay bloated, while other states have saved money by getting “smart on crime.”  Len Engel and Richard Luedeman summarize the study for us.

Joseph Donovan was sentenced to life at the age of 17 for first degree murder under the “joint venture” theory. His family shares the story of how they have joined the sentencing judge and the victim’s family to seek commutation of his sentence.

Sam Conti describes the “mean world syndrome” and how it affects public policy.

With this issue, we begin a new column, A Profile of NLG Sustainers, and present a profile of Patty Garin by David Kelston.

Last but far from least, Lee Goldstein shares a tribute to longtime Guild ally and past honoree Howard Zinn, who died on January 27.

- Bonnie Tenneriello & Barb Dougan -

On February 18, the Mentorship Committee organized its first “introduction” soirée for members of the Mentorship Program.  To see more pictures from this event or others, check us out on Flickr!

(l-r): Jeff Feuer and Northeastern students Randy Choiniere and Lee Palmer

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(l-r): Mara Voukydis, Deborah Roher, Jill Havens, & Marianne Tassone.

And in case you missed the February event…

“The Prospects for Drug Reform”

Barb Dougan (first left) leads a discussion on ways to reform drug policies. (l-r): Ellen Kief and David Kelston in the audience.

Participants at the first "NLG Presents..." series.

After a delay due to the no-storm of February 10th,  a good-sized group of Guild attorneys and activists gathered on February 17th  for a discussion of efforts to reform harsh drug sentencing, led by Barb Dougan, Massachusetts Director of Families Against Mandatory Minimums.  The event was co-sponsored with Community Change. (See Barb’s article “Pending Legislation Offers hope for Improved Drug Policy” for more).

-  Bonnie Tenneriello –

Photos by Urszula Masny-Latos.

By Barb Dougan

Each year in Massachusetts, hundreds of drug offenders receive fixed and often lengthy “mandatory minimum” sentences – 950 people in 2008 alone.  Unlike with most other offenses, the courts are barred from considering the factors that would allow them to fashion an appropriate remedy, such as the defendant’s prior criminal record, role in the offense or need for drug treatment.  Instead, drug offenders are routinely sentenced to five, 10 or 15 years in prison – even longer, and even as first-time offenders. By comparison, similar mandatory sentences are typically reserved for repeat offenders who commit violent crimes.

In Massachusetts, mandatory minimums for drug offenses are limited to distribution or trafficking offenses; there are no mandatory sentences solely for possession.  But distribution includes sharing a controlled substance with another, not just sales.  And many substance abusers have enough drugs on hand to trigger a charge of “possession with intent to distribute.”

The more serious charge of trafficking conjures up images of Miami Vice quantities of drugs.  Yet a mere 100 grams of opiates – the equivalent of a box of instant pudding mix – carries a mandatory sentence of 10 to 20 years, while 200 grams of cocaine – the equivalent of a can of baking powder – triggers a mandatory 15 to 20 years. As a result, low level players in the drug trade serve sentences intended for kingpins and sometimes even longer, because they had no information to trade for reduced charges.

A particularly egregious form of mandatory sentence is the “school zone” violation.  It applies to any drug offense committed within 1,000 feet of a school – more than the length of three football fields.  It applies at any time of day or day of the week, even when school is not in session.  A school zone violation carries a mandatory sentence of two to 15 years, which must be served after completing any sentence for the drug offense itself.

No one denies that the drug trade can have a devastating effect on neighborhoods, especially in urban areas.  But the law was enacted even though Massachusetts already had tough penalties for selling drugs to children or using them in drug transactions.  Subsequent studies showed that the vast majority of school zone cases do not involve children.  Instead, the law creates an “urban effect” where city dwellers are punished more harshly than suburban or rural residents who commit the same offense. Not surprisingly, unconscionable racial disparities result.

When “one size fits all” sentences for drug offenses were first enacted in Massachusetts, there was scant evidence that they would succeed in reducing drug use or sales.  Nearly 30 years later, the verdict is in: mandatory minimums do not work.  Instead, they result in disproportionately harsh sentences for low-level offenders, do not address drug dependency, exacerbate sentencing disparities and fail to protect public safety.  Meanwhile, taxpayers are paying the price for our failed drug policies, at about $47,000/year for a state prisoner.  Making bad drug policy even worse, drug offenders serving mandatory minimums are not eligible for parole or for re-entry programs.  The 2004 bipartisan Harshbarger Commission called such policies a “recipe for recidivism.”

Fortunately, there may be hope on the horizon.  In May 2009, Governor Deval Patrick filed a crime prevention bill that included parole eligibility for drug offenders.  This was the first time that a Massachusetts governor had supported mandatory minimum sentencing reform.  In November 2009, the state Senate passed a comprehensive criminal justice bill, S.2220, which included an even better version of parole eligibility.  (It also included CORI reform, see page 7 for more information.)  State prisoners would be eligible to apply for parole after serving two-thirds of their mandatory minimum sentence while county prisoners could apply after serving one-half.  The bill also included eligibility for work release programs, which allow prisoners to gain valuable work experience near the end of their sentence.

As this article goes to print, the House Ways & Means Committee is considering its own version of a sentencing reform bill.  Although there is a good argument for repealing mandatory sentencing laws altogether, allowing drug offenders to apply for parole and work release would be an excellent first step.  Such a reform would mitigate disproportionately long sentences for some prisoners while easing prison overcrowding and improving re-entry success rates.  In addition to these measures, which were included in the Senate bill, sentencing reform advocates are urging the House to reform the school zone law.  Merely reducing the zones from 1,000 feet to 100 feet would restore the law to its original purpose of protecting children and would cure much of the sentencing disparities that result.

Barb Dougan is the Massachusetts Project Director for Families Against Mandatory Minimums (FAMM), a Washington, D.C. based sentencing reform organization.

By Bonnie Tenneriello

Jannuary began with a blue moon, that rare event when a second full moon shines in the month, as it did on New Year’s Eve.  And then we had a once-in-a-blue-moon occurrence: the Department of Correction appeared – maybe – to be retreating from proposals to restrict prison visits.  While most DOC regulations sail through approval after a tranquil hearing, the public outcry over proposed changes to visiting regulations threatened a noisy fight, and the planned hearing on these regulations was indefinitely postponed.  Prisoners, their relatives, and advocates were alarmed at the prospect of greatly reduced visiting opportunities and new hurdles for visitors.  While it’s impossible to say why the hearing was cancelled, it seems reasonable to guess that outside pressure played a role.  Advocates still expect some changes to the visiting rules to be proposed.

Among other things, the changes would have limited each prisoner to 10 pre-approved visitors, and would have limited each visitor to seeing only one prisoner throughout the entire DOC system (except when the prisoners are both immediate family members of the visitor).   This would be devastating to prisoners and their visitors.  A visitor with more than one loved one in prison would have to choose whom to see and whom to give up visiting.   Prisoners with more than 10 people willing to come see them would have to sacrifice precious visits.   It would also devastate the communities from which large numbers of prisoners are drawn.  According to data for 2002 (the most recent available), 19 percent of state prisoners being released were from Suffolk County and 18 percent from Worcester county.  In the urban neighborhoods where the rate of incarceration is high, a person is far more likely to have several incarcerated friends and relatives.

Visitors would also face new bureaucratic hurdles.  They would need to submit a written application and undergo a Criminal Offender Record Information (CORI) check in order to be approved and placed on the prisoner’s visiting list. (Those with felony convictions are already barred from entering without special permission from the prison Superintendent.)  Before entering the prison, visitors would have to be checked against the prisoner’s list.  This will only add to waiting times that already can stretch for hours.   As it is, many visitors travel for hours from urban communities to rural prisons that lack public transportation, often at great expense and often with young children.  And after all that, if and when a prisoner’s visiting list is not properly maintained, visitors may well be turned away despite having been pre-approved.  Other provisions, such as searching mothers after breastfeeding (in addition to the search before entering prison) add unnecessary humiliation.

It is a truism that prison visits help maintain ties to the outside world and make for a better transition on release.  The proposed regulations themselves acknowledged “the importance of maintaining contact with family and the community.”   Let’s hope that the DOC comes back with a proposal that will do more than lip service to this notion, but let’s not count on it.  Those concerned with prisoner welfare and re-entry remain on guard and prepared to fend off proposals to restrict visits.  One effect of our nation’s high rate of incarceration (we lead the world) is that more and more people visit prisoners.  Unlike most prison issues, this one will not slide under the public radar.

Bonnie Tenneriello is an attorney with Prisoners’ Legal Services, formerly known as Massachusetts Correctional Legal Services.

By Wilnelia Rivera

The days of a prisoner “paying his debt to society” and then moving on are long gone. Prospective employers and landlords increasingly seek information about an applicant’s criminal history – called Criminal Offender Record Information or “CORI” in Massachusetts.  Much like reading tea leaves, they then make decisions based on what they perceive such information to reveal, even when the charges were dismissed or the past offense is unrelated to the issue at hand. As a result, ex-offenders too often are denied the very tools – jobs and housing – that prevent the revolving door of recidivism.

The Commonwealth CORI Coalition (CCC) is a broad-based alliance of over 90 organizations.  For the past three years, it has pushed for comprehensive Criminal Offender Record Information (CORI) reform.   Led by Neighbor to Neighbor Massachusetts, this past November the movement reached a critical point when the Massachusetts Senate adopted a comprehensive criminal justice reform bill by an overwhelming vote of 26 to 12.

The bill, S.2220, included the following:

•            Simplified sealing process: Records eligible to be sealed and non-convictions will not be posted in the state’s criminal database system.

•           Ending dissemination of irrelevant, outdated records: The bill shortens the waiting period for sealing CORI to 5 years for a misdemeanor (currently 10 years) and to 10 years for a felony (currently 15 years).  The waiting period starts when the individual is released, rather than at the end of supervision.

•            Helping employers better evaluate job applicants:  The bill also establishes fair hiring standards for CORI users and removes the CORI question as a first-level screen for job applicants, so that employers can better evaluate the risks and benefits of hiring an individual with a CORI.

CCC’s grassroots organizing transformed the push for comprehensive criminal justice reform from a small campaign into a statewide movement that unites a diverse and powerful set of grassroots groups.  Year after year we brought low-income leaders by the busload to the halls of power to make criminal justice policy real for legislators and the public through advocacy, direct action, and media work.  By combining a powerful grassroots and “grasstops” strategy, the CCC has been able to balance the concerns of law enforcement, employers, and communities.

We are currently organizing to win passage of the bill in the state House of Representatives and expect final approval by March.  A majority of the House supports the legislation, Governor Deval Patrick has made criminal justice reform one of his top priorities, and the major business and law enforcement lobby groups in the state have publicly endorsed the measure.

Nonetheless, the current political paralysis that engulfs the Legislature may derail all the support the CCC has gathered over the last three years.  Frustrated by years of inaction and corruption in Beacon Hill, the voters of Massachusetts chose to fill Senator Ted Kennedy’s seat in Congress with an unknown Republican state senator, Scott Brown.

It is clear now more than ever that decades of so-called “tough on crime” public policies have dramatically increased prison, probation, and parole spending while failing to curb recidivism. The Commonwealth can begin to tackle crime in a meaningful way by choosing to be “smart on crime” – increasing employment opportunities for ex-offenders, improving public safety and bringing in new revenue, while reducing recidivism rates and saving taxpayers money.  CORI reform is a vital part of this strategy.  Failure to adopt the legislation will further delay the Commonwealth’s capacity to recover from the current fiscal and economic crisis.

Wilnelia Rivera is the Campaigns Director at Neighbor to Neighbor Massachusetts.  For more information, go to www.n2nma.org.

NEW ENGLAND

The NESL Chapter of the NLG has planned a general interest meeting and a general discussion regarding Eviction/Foreclosure/Tenants Rights.  We hope to host a panel regarding these issues as they generate the most interest amongst students.

By Len Engle and Richard Luedeman

The Boston Foundation enlisted the Crime and Justice Institute at Community Resources for Justice, a Boston-based research and policy organization, to examine the cost of corrections services, criminal justice policies and corrections spending against other vital services the state supports as well as outcomes and best practices.  The result is Priorities and Public Safety: Reentry and the Rising Costs of our Corrections System, published in December 2009 by the Boston Foundation and available at http://cjinstitute. org/files/CorrectionsCosts.pdf.  Here is a summary.

Safety at any price.  This motto has guided Massachusetts corrections spending for the past 15 years.  The state has poured taxpayer money in the four corrections agencies – the Department of Correction, the 13 sheriffs’ departments which run the county jail system, the Parole Board and the Probation Department.  Yet during that period few policy makers stopped to ask what return the Commonwealth was getting for its significant investment.  Funding for corrections agencies has always constituted a large and, at times, controversial portion of state budgets.  With the recent economic crisis, the need to avoid ineffective and wasteful criminal justice policies has become extraordinarily urgent, both in Massachusetts and throughout the nation.

The FY 2010 budget for Massachusetts illustrates the privileged status given to corrections agencies in the process of making these tradeoffs. The Department of Correction was cut only 1.9% and the Probation Department only 8%, while the Higher Education budget was reduced by 17%, the Public Health budget by 13%, and the Local Aid budget by 28%.

This year’s budget pattern merely continues the trend in budget increases in Massachusetts corrections. Over the past 10 years (adjusted for inflation), the Department of Correction budget has grown more than 12% and the Probation Department budget by more than a whopping 160%, while Higher Education, Public Health, and Local Aid all faced modest declines in funding.

More spending on corrections sounds tough and might be fiscally responsible, but the data do not show that the added costs have actually contributed to public safety. First, we are not getting better public safety despite the spending. Recidivism in Massachusetts remained flat between 1998 and 2002 (after which recidivism data has not been provided).  Parole revocations in 2008 were actually slightly higher than in 1998.  And probation surrenders have experienced only an insignificant decline, from 58,622 in 1998 to 56,654 in 2008.

Perhaps most shocking of all, however, is that rising costs were not a result of a fast-growing incarcerated population. Accompanying the multi-million dollar budget increases was a modest 5% increase in prison and jail populations and a 14% decrease in the number of probationers under risk supervision.  Moreover, prison and jail overcrowding continues to be a problem.

Several other states’ efforts reveal that the upward trend in corrections spending need not be viewed as a political inevitability. Virginia, Washington, and Texas have all recently relaxed probation sentencing laws.  New York, Maryland, and Nevada have amended their mandatory minimum guidelines for low-level offenses.  Colorado and Oregon have expanded earned release time eligibility for prisoners while Kansas and Connecticut have focused on developing reentry initiatives to stem revocations and recidivism.  Most inspiring of all is Michigan, whose policies over the last five to 10 years correspond with declines in prison populations and parole revocations.  Their reforms have allowed officials to close 13 correctional facilities (saving $500 million), while doubling funding to evidence-based reentry programming.

To its credit, Massachusetts has made some moves in the right direction. Parole rates have increased from 46% in 1998 to 70% in 2008.  In addition, the Department of Correction has recently developed a plan to improve offender reentry through effective risk/needs assessment and job training.

Moving forward, however, the magnitude of Massachusetts’ reforms needs to match the magnitude of the underlying problem.  Policymakers should emphasize recidivism reduction as a central goal, routinely collect and share data, base their decisions on research, foster collaboration within communities, and shift the focus from prison and jail infrastructure to providing greater access to supervised reentry programs aimed at offenders’ specific levels of risk and need.

Leonard W. Engel, Esq. is Senior Policy Analyst and Richard Luedeman is an Associate at the Crime and Justice Institute.

By Carol Hallisey

Should the Commonwealth of Massachusetts display mercy to convicted felons?  This question lies at the heart of the Joseph Donovan story.  In 1993, at the age of 17, Donovan was tried and convicted of first degree murder under the ‘joint venture’ theory of law. The case involved the brutal murder of Yngve Raustein, a 21-year-old exchange student from Norway who was attending MIT.

Raustein died at the hands of a 15-year-old teenager, who viciously stabbed Raustein without warning or provocation. Tried as a juvenile, the killer served less than 11 years for his crime.  Though he was unarmed, Joseph Donovan and another young man who accompanied the killer that night were tried as murderers.  Donovan refused to accept a guilty plea on lesser charges in exchange for testimony against the murderer, insisting that his crime consisted of assault and battery, not murder.   He is now serving a life sentence in Massachusetts with no chance of parole.

Donovan has accepted full responsibility for his role in Raustein’s murder, in particular starting the fracas which led to the murder.  His family, friends and supporters feel that, after more than 17 years in prison, Joseph has fully paid his debt to society.  Joseph’s supporters include the family of the victim, Yngve Raustein, as well as the judge who presided over his trial and the jurors that convicted him.  This group asks for a full commutation of his sentence and release from prison.

The family and friends of Joseph encourage you to visit www.supportjoedonovan.org and learn more about his story. There, you can access an online petition in support of Joe which has been signed by more than 800 people.

Carol Hallisey writes on behalf of the family of Joseph Donovan.

Patty Garin is a partner at Stern, Shapiro, Weissberg & Garin (one of our original sustainers), and she has distinguished herself as one of Massachusetts’ most respected, tireless and effective advocates for those who would otherwise remain voiceless.  Her most recent success came in the case Commonwealth v. Leonard Lacy.

Leonard Lacy was convicted of first-degree murder in December, 1974.  For over 36 years, he steadfastly maintained his innocence, but made no progress in the court system.  Lacy was, in 1973, one of several persons in the Boston area gaining access to the homes of elderly persons to commit swindles.  In that month, a black man (Lacy is black), posing as a senior citizen worker, gained entrance to the Roxbury apartment of Lillian Fitzgerald, struck her and fled.  The elderly Mrs. Fitzgerald died eight days later in the hospital from pneumonia and congestive heart failure.

On December 24, 1973, Leonard Lacy was arrested.  The police, with no suspects in the long succession of crimes – now including a murder – were anxious to make an arrest and, the record showed, put enormous pressure on three elderly white residents of Mrs. Fitzgerald’s apartment building to give descriptions that could fit Lacy.  In fact, not one of the three “eyewitnesses” could give a detailed description of the “unknown colored male” before or during trial.   Lacy’s indictment was the result of a suggestive photo array, and he was convicted.

Patty recognized in Lacy’s case that there was an enormous question of his guilt.  Hopelessly tainted eyewitness testimony, suggestive police methods, very poor viewing conditions at the scene, and racial bias, all contributed to the conviction.  But perhaps the result was not altogether surprising.  Mr. Lacy was a young black man tried for the murder of an elderly white woman in 1974, when Boston was steeped in racial turmoil and animosity, even hatred, with tensions at all levels of life, from housing to employment to politics.

Patty Garin and Rebecca Rose worked on this case for five years, and with their formidable papers for a new trial pending, the Commonwealth finally made a deal that made Lacy a free man, after 36 years of wrongful incarceration.  He walked out of the courtroom and out of prison, finally, on February 7, 2010.

Patty deserves our thanks and appreciation for doing what lawyers should do, and doing it so well.

-   David Kelston  -