Massachusetts Chief Justice Gants cites our research, calls for reform

by Peter Wagner, October 21, 2015

Yesterday, the top judge in Massachusetts cited our research in his “State of the Judiciary” address.

Supreme Judicial Court Chief Justice Ralph D. Gants made a strong argument for sentencing reform and used our report States of Incarceration: The Global Context to argue that Massachusetts, a state with one of the lowest rates of incarceration in the nation, should and can do so much more:

If we believe that the vast majority of the 46 percent of prisoners currently being released from state prison without any post-release supervision should have post-release supervision, how are we to pay for it? One alternative is to redirect the money that would be saved by reducing the length, and therefore the rate, of incarceration. How can we do that? After all, are we not among the states with the lowest rate of incarceration? It is true that in a nation that has gone mad with mass incarceration, we have maintained some semblance of sanity; our rate of incarceration is less than one-half of the national average. But our rate of incarceration is three times what it was when I graduated from law school in 1980, even though our rate of violent crime today is roughly 22 percent lower than in 1980 and our rate of property crime is nearly 57 percent lower. According to the Prison Policy Initiative, if Massachusetts were a separate nation, our rate of incarceration would be the eighth highest in the world, exceeded only by the United States (which ranks first), Russia, Cuba, El Salvador, Thailand, Azerbaijan, and Rwanda; it is 2 1/2 times higher than the rate in the United Kingdom. There is certainly room in Massachusetts for justice reinvestment and I am confident we can find common ground with the Legislature and the Governor on ways to be smarter on sentencing so that we can reduce both the rate of incarceration and the rate of recidivism.

We were also thrilled to see the Judge draw attention to what should be a common sense reform: criminal justice fees. Chief Justice Gants said:

And if we are truly committed to reducing recidivism, should we not take a fresh look at the various fees we impose on criminal defendants that go to the state’s general fund? Indigent counsel fee: $150. Probation supervision fee: $780 for one year of supervised probation and $600 per year for administrative probation. Victim-witness fee: $90 for a felony, $50 for a misdemeanor. For an indigent defendant convicted of one felony and sentenced to one year of supervised probation, the fees total $1,020, more if a GPS bracelet is a condition of probation, because the defendant is required to pay for that, too. A judge may waive payment where the judge finds it would cause undue hardship, but judges must then require community service in lieu of payment, and the probation department must find the defendant an appropriate community service opportunity.

I know that Massachusetts is not unique in the imposition of these fees. At least 44 states impose a probation supervision fee; at least 43 impose an indigent counsel fee. I also know that the revenue yielded by these fees in Massachusetts is not insubstantial: $21 million in probation supervision fees; $7 million in indigent counsel fees; about $2.4 million in victim-witness fees, in all more than $30 million per year. But should we not stop and ask: who are we asking to pay these fees? Most are dead broke, or nearly broke. Approximately 75 percent of criminal defendants are indigent. Collection is difficult, and we are asking probation officers to take charge of this collection, and to allege a violation of probation where a defendant fails to pay. And the law requires yet another payment of a $50 fee when a default warrant is issued because of a defendant’s failure to pay.

We want probationers to succeed on probation, and we want probation officers focused like a laser beam on the elements that will help probationers succeed: finding a job, getting an education, dealing with drug addiction and mental health problems, ending the cycle of domestic violence. Should we not ask whether the financial burden of these fees is making it more difficult for probationers to succeed? Is it increasing the rate of violation? Does it make sense to transform probation officers into debt collectors and community service coordinators, to burden our courts with the obligation to collect these debts, and to use the threat of a violation of probation as a means to induce payment? Are we, in the immortal words of MBA President Bob Harnais, “spending dollars to collect nickels,” and are we collecting those nickels from a population who can least afford to pay?

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