In late November, as they prepared to head into recess, members of the Massachusetts House of Representatives passed, with minimal fanfare, a bill that would dramatically change the commonwealth's criminal justice system.
Formally, the bill is called "An Act Relative to Sentencing and Improving Law Enforcement Tools"; informally, it's referred to as a "three strikes" bill, a term coined during a tough-on-crime push in the 1990s, when a number of states adopted similar laws.
While the specifics of those laws vary, they all tighten parole eligibility for people convicted of at least three felonies, either lengthening the time before they can apply for parole or, in the case of certain crimes, rendering them ineligible to ever apply. Three strikes and they're out—or, rather, in, for more time. Supporters of the three-strikes law tout it as a key public safety move that would ensure that violent criminals stay behind bars rather than return to the streets to commit more crimes.
But critics of the proposed law, including lawmakers, activists and church and community groups, say it's a feel-good—or, more aptly, feel-safe—measure that would, in truth, do little to improve public safety. They argue the proposed law is an overly broad measure that would worsen the overcrowding that's already a problem in Massachusetts prisons, and cost taxpayers dearly—an estimated $75 million to $125 million a year, according to an analysis by the Mass. Sentencing Commission, a governmental body that oversees sentencing policies.
The fate of the proposal now lies with a conference committee charged with reconciling differences between the bill passed by the House and a separate bill passed earlier by the Senate, which contains numerous other criminal justice reforms, some of which are applauded by opponents of the three-strikes provision. The job before the committee won't be an easy one, and some Statehouse observers question whether it will, in fact, be able to cobble together one bill from the two versions before it.
And hanging over the entire process: Election Day is a little more nine months away and, based on the overwhelming margin by which the bills passed in the House and Senate, not many legislators are willing to head to the polls tagged as "soft on crime."
The Senate version of the bill, which originated with Gov. Deval Patrick, included certain reforms that the governor and others have pushed for years. They include reductions to certain mandatory minimum sentences for nonviolent drug crimes and changes that would make those offenders eligible for parole, earned "good time" and work release programs.
The bill also contains proposed changes to the state's "habitual offender" laws. Under current law, a person is considered a "habitual offender" if he is convicted three times of any of the 688 crimes classified as felonies in Massachusetts, and if he had been sentenced to at least three years in state prison for the first two convictions. Upon a third conviction, that person is sentenced to the maximum time allowed by law for that particular crime, and can apply for parole after serving half of his sentence.
The Senate bill would keep those policies in place in the majority of cases, although it would increase the time before a habitual offender could apply for parole, requiring him wait until he's served two-thirds of his sentence.
But it would also create a subset of habitual offenders, defined as people convicted at least three times of one of 59 specific felonies, a long list of violent crimes and sexual assaults as well as stalking, armed burglary, arson of a home, firearms violations, and possession or distribution of child pornography. In those cases, the third conviction would carry the maximum penalty and would also make the person ineligible for parole, work release or time off for good behavior for the entire length of his term. Twenty-four of those 59 felonies would carry a maximum term of life imprisonment. Right now, only one crime—first-degree murder—carries a penalty of life without parole. (Juvenile convictions would not be counted as one of the three strikes.)
The bill passed easily in the Senate, by a vote of 36 to 0. From there, it moved to the House, which, in its rush to move the bill before the recess, stripped out the sentencing reforms of the Senate bill, leaving intact the habitual offender, or three-strikes, provisions only. The House bill does have a few variations; it lists 55 felonies that would make a person ineligible for parole, compared to the Senate's 59. (The House eliminated from the list crimes including breaking and entering and "possession or placement of cutting device, prohibited weapon in airport secure areas.")
The House bill also includes 22 felonies—not the Senate's 24—that would trigger life without parole.
In other places, the House version is stricter than the Senate's bill. For example, under the Senate version, an offender's first two felony convictions only count as one of his "strikes" if they resulted in a sentence of at least three years in state prison, or, in the case of the 59 felonies considered most serious, resulted in any prison sentence, even of just one day. In the House bill, any felony conviction, even those that resulted in minimal sentences, count as strikes.
The House bill was passed on Nov. 16 by a vote of 142 to 12.
A three-strikes bill has been kicking around the Statehouse for years. The proposal got its first big push after the 1999 death of Melissa Gosule. Gosule was raped and murdered by Michael Gentile, a parolee with a history of violent crimes, who'd offered her a ride after her car broke down near the Cape Cod Canal. Shortly afterward, state Rep. Bradford Hill (R-Ipswich) filed a three-strikes proposal called "Melissa's Bill."
More recently, the effort gained more support after the 2010 murder of a Woburn police officer, John Maguire, by Dominic Cinelli during an armed robbery of a department store.
Cinelli, who had been in prison after receiving three concurrent life sentences for crimes including armed robbery and assault, was on parole at the time of the murder. He was also killed in the shootout with police. That case had numerous political—and, by extension, criminal justice—implications, most notably Patrick's call for the resignations of Parole Board members in place at the time of Cinelli's release.
During the House vote on the new crime bill in November, Hill, the Ipswich rep, pointed to Gosule's family sitting in the gallery. "You turned that tragedy into advocacy because you felt so strongly that our laws need to change so no family should ever have to endure what you did," he said.
State Rep. David Linsky (D-Natick) told State House News Service that the bill would ensure that the most dangerous criminals do not have the chance to reoffend. "It captures those who, quite frankly, have no place in society," he said. That sentiment was echoed by Mary Beth Heffernan, the state secretary of public safety, who recently told Boston's WGBH-TV that the list of felonies that would bar a convict from receiving parole was drawn to address the most serious crimes, "things like indecent assault on a child under 14, rape of a child by force, aggravated assault and battery with a dangerous weapon. ... I would respectfully say that any one of us would want folks like that off of our streets."
But opponents of the three-strike proposal contend, among other criticisms, that the list is too broad and would result in a dramatic increase in the number of people in state prisons, which are already overcrowded. Mass. Department of Corrections facilities are, on average, already at 143 percent capacity, and the department projects that the prison population will continue to grow even without the passage of a three-strikes bill. That's due, in part, to the drastic reduction in the number of paroles granted by the state in the wake of the controversial Cinelli case; according to figures from the DOC, parole releases dropped 56 percent between 2010 and 2011.
"They're not paroling anybody," Lois Ahrens, executive director of Northampton's Real Cost of Prisons Project, told the Advocate. Ahrens is a member of the Coalition for Effective Public Safety, which formed in response to what she calls Patrick's "evisceration" of the Parole Board after the Cinelli case.
Even putting aside the drop in paroles, Ahrens wrote in a recent op-ed in the Daily Hampshire Gazette, the three-strikes restrictions would keep in prison for life 1,500 to 2,500 people who otherwise would have been eligible for parole—at a cost of $75 million to $125 million a year, according to Mass. Sentencing Commission figures.
Looking forward, it seems inevitable that Massachusetts would have to build more prisons. That's what happened in California, which in 1994 passed perhaps the nation's strictest three-strikes law. But the new prisons weren't enough to handle the ballooning prison population, and in 2010, the U.S. Supreme Court found that extreme overcrowding at California state prisons violated the Eighth Amendment's protection against cruel and unusual punishment, and ordered the state to reduce its prison population from about 156,000 to 119,000. Many of the prisoners have simply been transferred to overcrowded county jails.
Rising incarceration rates and lengthening sentences aren't just costly—they also, some analysts say, have little positive effect on public safety. "The logic behind supporting harsher sentences is simple: locking up people for longer periods of time should enhance public safety. From this view, putting people in prison for years or even decades should prevent offenders from re-offending by incapacitating them and/or deterring would-be-offenders from committing crimes," Valerie Wright, a criminologist with the nonprofit reform group The Sentencing Project, wrote in a 2010 paper. "However, contrary to deterrence ideology and 'get tough' rhetoric, the bulk of research on the deterrent effects of harsher sentences fails to support these assertions."
In fact, Wright wrote, increasing the length of prison sentences is "counterproductive," since "when prisoners serve longer sentences they are more likely to become institutionalized, lose pro-social contacts in the community, and become removed from legitimate opportunities, all of which promote recidivism." (California has a recidivism rate of 67.5 percent—one of the highest in the nation—despite its strict sentencing laws, according to a 2011 Time report.)
In an op-ed in the Boston Globe earlier this month, Nancy Gertner, a retired U.S. District Court judge, called the bill "bumper-sticker politics that does nothing about crime, and costs millions, just when we can ill afford it."
"Existing get-tough policies have pushed our system to the breaking point," and the proposed law would only add to those burdens, she wrote. "Worse yet, since the current system is too strained to meaningfully invest in keeping prisoners from reoffending, we are doomed to keep paying to house some of the same prisoners over and over."
The list of felony convictions that would preclude the possibility of parole, Gertner continued, is overly broad; "The Senate version includes breaking and entering, a crime that homeless people are charged with when they seek shelter in an abandoned building," she offered by way of example.
"The issue is not being 'soft on crime,'" Gertner continued. "Real reform saves millions and increases public safety. Real reform recognizes that every dollar spent on prison is a dollar taken away from reentry initiatives. Even Newt Gingrich, among others across the political spectrum, agrees that imprisonment is an expensive resource to be carefully targeted."
But a strict three-strikes law would prevent that sort of thoughtful decisionmaking from happening. "The charging decision, the decision to plead to a lesser sentence, depends entirely upon the preferences of different district attorneys across the state. Make no mistake about it: with mandatory sentences, prosecutors sentence; judges do not," Gertner wrote.
That concerns Ahrens, too. Laws carrying mandatory sentences, she says, give prosecutors too much power, allowing them to pick and choose from a long list of felony charges that could land a defendant behind bars for decades, if not life, unless he agrees to forego a trial and accept a plea bargain. "It will give prosecutors so much more discretion. That's the part that's really dangerous, to me," Ahrens said.
While the opposition to the three-strikes proposal grows, there's one group that remains overwhelmingly supportive of the proposal: state lawmakers. Of the 190 legislators who voted on some version of the proposal, only 12 cast "no" votes.
Eight of those votes were cast by members of the Black and Latino Legislative Caucus, which is leading a push to reform the bills in the conference committee. One was cast by state rep Ben Swan (D-Springfield). (Rep. Cheryl Coakley-Rivera, another Springfield Democrat and member of the caucus, was absent for the vote.) Only one other representative from Western Mass., state rep Denise Andrews (D-Orange), voted against the bill.
"We have a number of mandatory minimum sentencing deals on the books now. They don't work; they have a negative impact on people and the budget," Swan told the Advocate. A "mandatory maximum" law like the one proposed would be equally ineffective, and even more costly, he said.
It would also remove, to a large degree, judges' ability to decide a case on its particular circumstances, Swan said: "It takes out judicial discretion, which I have a problem with."
The Black and Latino Caucus is calling on the conference committee to incorporate a number of reforms in a final bill, Swan said, including ending mandatory minimum sentences for nonviolent drug offenses and drug crimes committed within a so-called "school zone," and reducing the sizes of those zones from 1,000 feet to 100 feet.
"This is a complicated bill. It needs more time," Swan said. "We were rushing it to pass before we adjourned for the holiday break. There was no need to rush it, in my opinion, but leadership, the Speaker, wanted to rush it."
The rush came in part, Swan said, from pressure to respond to the Maguire and Gosule murders—which, while tragic, are hardly part of a trend of murders committed by parolees. "Sometimes when things like that happen there's a public clamor, especially through the media, for something to be done. There's an overreaction," Swan said.
And, he added, there are political pressures at play as well; this is an election year, and many Democrats, bracing for Republican opposition, don't want to appear weak on public safety. Swan expressed frustration with members of the upper Valley House delegation who voted for the bill despite their typically progressive stands. Some House colleagues who voted in favor of the bill privately told him they agreed with his position but were afraid to vote with him, Swan added.
When and if the conference committee releases a final version of the bill, it would go back to the House and Senate for another vote, this time with no amendments allowed. If passed, the bill would then go to Patrick for his signature or veto.
But first, the committee will have to find a compromise between the more comprehensive Senate bill and the comparatively barebones House bill, with its narrow focus on habitual offenders.
Back in November, Senate President Therese Murray told State House News that the Senate would not accept the "stripped down" bill that the House ended up passing.
"We gave them an extremely complex bill that we spent months on. I knew that they couldn't move it this quickly. I think it was their concern they move part of it to show their interest in it," Murray said.
More recently, Patrick sent the message that he, too, expects a broad bill to emerge from the committee and would veto a bill that does not include sentencing reforms, such as reductions in certain mandatory minimum sentences.
"I'm not going to get a package that's not complete, that's not balanced. I know the legislative leadership agrees that we should have that balance and I'm going to be looking forward to seeing how that balance is struck in the final bill that comes to me," Patrick told the media last week.
"There are things we can and will do to toughen the habitual offender law and do it in a way that's intelligent, but there are also things we have to do around sentencing reform to move out people who are not dangerous. That's a burden on resources, and it's not really a solution for successful reentry," the governor said.
In the end, the House might end up putting its first bill aside in order to consider a broader bill similar to the one passed in the Senate. In a posting on his website last week, state rep Will Brownsberger (D-Belmont), who voted against the House bill, indicated that House and Senate members of the conference committee are at a stalemate. "After a couple of meetings, it seems clear from public statements of the Speaker and the Senate President that the Senate is not going to support the narrow three-strikes bill proposed by the House," Brownsberger wrote.
Because a bill that comes out of a conference committee is not open to amendments, "it would not be fair to members of the House for the conference committee to proceed forward and negotiate a comprehensive sentencing bill. House members did not consider anything but the three-strikes provision in their vote and would have no opportunity to weigh in on the many other important questions in a comprehensive bill," he wrote.
"So we can expect over the weeks and months to come that a more comprehensive bill will come before the House for debate on the floor. ... So, in effect, the pure three-strikes bill that the House passed is essentially a statement of interest in sentencing changes," Brownsberger wrote. "Hopefully, we can get to a much better bill by end of the session."