By Nancy Gertner
Why is Massachusetts moving in a direction opposite that of other states -- retaining life without parole for juveniles, refusing to enact post conviction DNA testing statutes and more recently, proposing a new version of the discredited “Three Strikes and You’re Out” crime approach?
As the Globe reported, Massachusetts is the only New England state with life without parole for juveniles. The Supreme Court has recognized that the adolescent brain is sufficiently different from that of an adult that the death penalty is inappropriate -- even for murder, as is life without parole in non-murder cases. And it is inconsistently applied. The story is a familiar one: The law is enacted because of one juvenile’s horrific crime, but is then applied in very different cases - to impulsive crimes, nowhere near as brutal as the offense that motivated the law, committed by teenagers with little or no prior record.
The failure of the DNA bill is more mystifying. No one is interested in the imprisonment of an innocent man. Yet, a bill requiring DNA testing has failed to pass every year since 2003. As the Globe reported, some prosecutors claim to be worried about the cost of DNA testing, costs which have not materialized in states that permit testing.
If costs are at issue, why enact a “Three Strikes” bill? While we are not yet where California is – California has to release more than 30,000 prisoners because of “Three Strikes” overcrowding – that’s where we are heading. Existing get-tough policies have pushed our system to the breaking point.
Overcrowding averages 143 percent over capacity; one unit at MCI Framingham is even at 331 percent over capacity. Parole releases – influenced by administration policies -- have dropped by 56 percent in 2011 (according to the Department of Correction). The Commonwealth faces additional prison costs of approximately $100 million dollars per year. And if the new law increases the prison population as it is likely to do, the Commonwealth will have to build more capacity fast – costing $100,000 per cell. This is on top of the $1 billion a year the state spends on incarceration. 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 issue is not being “soft on crime.'' 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, agree that imprisonment is an expensive resource to be carefully targeted.
The proposed "three-strikes'' bills are not. Both House and Senate versions create two categories of “habitual offenders” – those convicted of any felony after two prior felony convictions, and those convicted a third time of certain listed crimes. In the first category, the bill amends the law which already mandates the maximum sentence on the third felony. It changes parole eligibility from half of a sentence to two-thirds. “Felony” sounds serious but there are 688 felonies in Massachusetts; most are non-violent.
Those in the second category convicted of one of the nearly 60 listed offenses after two prior convictions on the list (and who meet other requirements) also get the maximum punishment but now without parole,. While the bills limit the no-parole category, the list is still too broad. The Senate version includes breaking and entering, a crime that homeless people are charged with when they seek shelter in an abandoned building. No parole may mean that these offenders are released without supervision, just a bus ticket.
If we are concerned about the inconsistent application of juvenile life without parole, we should be especially concerned about “three strikes.” 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.
States as different from Massachusetts as Mississippi and Texas are implementing smart prison reform. By reserving prison space for the most violent and instituting programs for low level offenders, Mississippi has cut its population by 22 percent, saving roughly $450 million, according to one study. Texas enacted similar reforms in 2007, saving an additional $2 billion. And the crime rates in both states have substantially declined..
Since violent crime has also fallen in Massachusetts, why is this bill necessary? The answer: Domenic Cinelli. Whatever the issues concerning Cinelli’s parole after concurrent life terms, he was out of prison for nearly two years before he tragically killed a police officer. It was a failure of supervision, which we will repeat if we spend limited dollars on imprisonment rather than reentry. To prevent future Cinellis, we should focus at best deny parole only to those serving multiple life sentences who remain violent– nothing more.
If this bill passes one thing will be clear: We will have chosen bumper-sticker politics that does nothing about crime, and costs millions, just when we can ill afford it. Unwilling to pay the price for exonerations or treatment, we are too willing to pay the cost to imprison.
Nancy Gertner is retired judge from the US District Court for the District of Massachusetts.