David W. White Jr.

Fixing our criminal sentencing system

Email|Print|Single Page| Text size + By David W. White Jr.
April 26, 2008

A NUMBER of news stories this spring have shown us that the criminal sentencing system is out of line - both in Massachusetts and in the nation as a whole. The United States has not just the highest rate of incarceration in the world, but also one-fourth of all of the prisoners in the world.

What has led us to this? And what is it about our priorities that has us spending more on incarceration than higher education?

In Massachusetts, we have over 25,000 inmates serving time in county jails or state prisons. Governor Deval Patrick's proposed 2009 budget seeks $1.4 billion for the sheriffs' departments and the Department of Correction. This money is primarily for incarceration. The same budget proposes $963 million for higher education.

The prisons and jails are seriously overcrowded, not just with convicts but also with hundreds of additional pre-trial detainees who either cannot make bail or are being held without bail pending their trials. A federal lawsuit has forced one county sheriff, in Worcester, to choose which inmates will be released before their sentences are completed. Some detainees are left in local lock-ups because of space shortages.

Incarceration rates increased dramatically when the "War on Drugs" was launched in the 1980s. In Massachusetts and elsewhere, strict mandatory minimum sentences were enacted for drug dealing. One of those sentences, for selling any type or quantity of drug within 1,000 feet of a school, annually sends more than 300 people to jail for a mandatory minimum of two years.

These convictions are usually known as status crimes. The offenders in question generally weren't dealing drugs to children; rather, they were selling in dense urban areas where a school is rarely more than 1,000 feet away. The application of the school zone offense may vary widely from county to county.

When you look across the vast spectrum of crimes committed each year, so many of them can be traced back to drug and alcohol abuse and addiction. This is no secret, nor is the fact that more than 20 years of get-tough policies have not made a difference in drug-related crimes.

Two other factors are relevant. At the front end of the trial process, the courts are cluttered with the smallest of crimes, such as disturbing the peace or passing a bad check. Because these crimes carry the threat of incarceration, if the defendant is indigent the court must appoint a lawyer at taxpayer expense. If treated instead as civil infractions, with only the risk of fines, the dockets could be cleared, and the legal help could be reserved for more serious matters.

Bigger problems lie at the back end of whatever sentences are imposed. Massachusetts must find a better way to deal with ex-prisoners returning to society. Most released prisoners lack job skills, education, family support, money and, most importantly, supervision. Recidivism is more than likely. A high percentage of Massachusetts inmates complete their sentences by "wrapping up" - or serving out their time - and therefore have absolutely no supervision by a probation department or the Parole Board upon their release. With supervision, however, the likelihood of reoffense drops by one-third.

So what can we do this year, while the budget and the laws are still being written, and before our legislators recess for a season of campaigning?

This is a simple, cost-saving, and effective wish list:

Eliminate mandatory minimums for drug crimes to allow for parole eligibility.

Ensure meaningful post-incarceration supervision through parole or probation.

Resist calls for new mandatory minimum sentences that tie the hands of prosecutors, judges, and corrections officials.

Support policies that provide and promote drug treatment instead of incarceration.

Fully fund prison programs for treatment of mental illness, substance abuse, and training.

None of these ideas suggest that we should be soft on crime. Rather, they represent measures that are smart on crime in ways that Massachusetts can afford - and will be more effective in reducing future crime than the status quo.

David W. White Jr. is president of the Massachusetts Bar Association.

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