3 Strikes: Legislators Respond

UPDATE: Response from St. Senator Richard Ross now added (2/7/2012)
Legislator responses/feedback on constituent inquiries re: 3 strikes

1/24/2012 : Sen. Chang-Diaz

Re: An Act Relative to Habitual Offenders, Sentencing, and Improving Law Enforcement 

Dear D--: 

I am writing in response to your inquiry regarding An Act Relative to Habitual Offenders, Sentencing, and Improving Law Enforcement Tools (originally S. 2054, now S. 2080 as of passage in the Senate), which the State Senate debated on November 10.  Thank you very much for bringing your views and concerns to my attention.  Your advocacy helps inform the priorities for which I fight on behalf of the Second Suffolk District.

Crime prevention, the effectiveness of public safety reforms, and the efficient stewardship of tax dollars are issues of high priority for me as your State Senator.  Like you, I have been concerned for some time about the cost and effectiveness of housing convicted persons under our current mandatory minimum laws, and about the disproportionate way in which mandatory minimum laws affect communities of color.  I believe strongly in the need for reforming the current system.  During the last legislative session, with the help of advocates like you, we were able to pass An Act to Reform CORI, Restore Economic Opportunity and Improve Public Safety, which was a great victory for our community. The policy changes contained within this bill will allow us to save taxpayer money while, at the same time, improving public safety and allowing past offenders to become productive members of society.


This focus on reducing recidivism and costs informed the approach that I, along with my allies in the Senate, took in our negotiations on S. 2080.  After the tragic murder last December of Officer Jack Maguire at the hands of a paroled, repeat violent offender, there was an emotional groundswell of support for a harsher approach when dealing with the sentencing of habitual offenders.  Despite the honorable intentions of many of my colleagues who supported this direction, I believed that initial drafts of the bill cast too wide a net - potentially in ways that would be disproportionate to the crimes committed - and that would force the state into a costly situation, worsening our already serious prison overcrowding problem, without doing much to reduce crime on the front end.  Because of this, my Senate allies and I came to the table and negotiated a final bill that, while certainly far from ideal, was a dramatic improvement over the bill as initially proposed.  

Unfortunately, the House did not take the same comprehensive approach and ended up passing a version of the bill that I would have voted against.  Instead, they focused solely on punishing habitual offenders while ignoring the reforms that the Senate bill included such as reducing mandatory minimums, increasing the potential for sentence reduction through earned good-time credits, expanding access to work release programs, and reducing the School Zone. 

I continue to have serious concerns about some aspects of the Senate bill, and it was with admitted reservations that I voted for it during Senate debate in November.  However, the fight to improve the bill continues, as it is now before a conference committee charged with reconciling S. 2080 with its less comprehensive House version.  I, along with the other members of the Massachusetts Black and Latino Legislative Caucus (MBLLC), have been pressing the conference committee members to maintain the positive provisions that we fought so hard to include in S. 2080, while avoiding the negative effects that come from a blanket habitual offenders statute.


This is not a battle that we in the Second Suffolk District can fight alone, however. I encourage you to activate your friends, family, and co-workers who live in other Senate and House districts to contact their elected officials and urge them to support the MBLLC's position on this issue.  We must work to ensure that people across our state, and the legislators who represent them, are aware of the disproportionately negative impact that some of these provisions will have on our communities.  Expanding our prison population is not an effective means of preventing crime, and harsher sentencing of habitual offenders in other states has resulted in neither lower crime rates, nor lower rates of recidivism.  In Massachusetts, we should be taking an evidence-based approach that addresses crime at its root cause and that spends our resources on building up communities in such a way that prevents criminal activity before it takes place.


Thank you for reaching out to me in such a thoughtful way and engaging in the policy-making process.  Your advocacy makes for a stronger Commonwealth.  If you have any further questions or concerns, please don't hesitate to contact me or my Legislative Aide, Nathanael Shea, at (617) 722-1673 or nathanael.shea@masenate.gov.


Saludos, 
Sonia Chang-Díaz  State Senator Second Suffolk District 

Today (2/7/2012) I received an email in reply to mine I sent to Sen. Richard Ross about 3 strikes. I haven't had time to sift thru it properly. It is substantive and seems on first read to be supportive of the good reforms (reduced sch zones, reduced sentencing for non-violent drug offenders) and appreciative of the concerns about 3 strikes. Will need to read more carefully later.  For now:

Hi Harmony,

Thank you for contacting me about the “Habitual Offenders” bill, An Act Relative to Sentencing and Improving Law Enforcement Tools (H. 3818). I appreciate learning of your concerns with the “3 strikes” aspect of this bill.

This legislation is intended to reform sentencing guidelines and law enforcement tools as a means of implementing more cost-effective approaches that enhance public safety in the Commonwealth. As you agree, reducing penalties for non-violent crimes, specifically non-violent drug offenders, is one step toward reducing prison costs. Individuals who commit victimless crimes should not endure lengthy prison sentences at the cost of our taxpayers.

Several studies have also revealed a high rate of recidivism, and emphasized a need for prison reform. Those imprisoned for non-violent crimes are often more likely to commit additional crimes after release, than they were before they went to prison. Nearly all of them will be back in our communities, and many, according to statistics, will commit similar offenses. The expansion of prisons has resulted in incarcerating large numbers of nonviolent, “marginal” offenders who then become recidivists in greater numbers than they would have had they been punished outside of prison.

Unfortunately, under the current laws, offenders of violent crimes are more likely to re-enter our communities, and commit similar, violent offenses. In order to deter violent crimes, this bill has set out to strictly punish repeat offenders of violent crimes. Specifically, this bill dictates that habitual offenders of crimes within M.G.L. chapters 140, 265, 266, 269, and 272 will endure stricter prison sentences in an effort to deter violent criminal activity and promote public safety. Such crimes include unlawful possession of assault weapons with the intent to sell; violent acts against persons (including murder, manslaughter, and assault and battery); carrying dangerous weapons; and sexually deviant acts involving weapons and date rape drugs.

It is with these criminal acts in mind that this bill was created. Although other “three strikes” laws are met with great opposition due to increased costs within the prison system, this bill is narrowly tailored to limit costs and protect the public. For example, in 1994, California adopted a “three strikes” law, in which “three strike” offenders of felonious crimes were imprisoned for a maximum sentence without parole. As a result, prison stays were increased by 43 months, at a cost of approximately $60,000 per prisoner. Opposition to California’s law is primarily based upon the large percentage of “three strikers” imprisoned for a maximum sentence without parole due to non-violent crimes (about 56% are non-violent offenders). Other studies have also indicated that most “three strikes” opposition is a result of strict punishments for non-violent offenders.

Furthermore, recent “smart reform” as adopted in Texas aims to reduce prison costs by excluding non-violent crimes from “three strikes” provisions, as well as having separate punishment guidelines for juveniles. This bill indicates a similar policy of reform in our Commonwealth. By creating this bill, Massachusetts aims to avoid opposition and focus solely on punishment of violent crimes.
I understand your support for reform through a facts and evidence policy, believing a “three strikes” rule is mere window-dressing. I introduced an amendment to the Habitual Offender bill requiring all MA DOC programs receiving state funds employ evidence-based practices in delivery and design. Unfortunately, my amendment was rejected by the Senate and most prior attempts to integrate risk tools into sentencing have failed as well due to concerns about the accuracy of the predictions. Virginia, however, is one case that has successfully implemented such a policy; however, this policy was primarily designed to prevent recidivism of non-violent offenders.

Although this actuarial risk assessment policy has been successful in Virginia, and the Supreme Court of Indiana noted in a 2010 case that such assessments “can be significant sources of valuable information…in deciding whether to suspend all or part of a sentence, how to design a probation program for the offender, whether to assign an offender to alternative treatment facilities or programs, and other such corollary sentencing matters,” the court of the Eastern District of New York has indicated serious concerns about “forward-looking predictions of future behavior, rather than backward-looking punishment for past behavior.”

While a facts and evidence scheme may prove beneficial, it can be highly ambiguous because it is based largely on prediction. Currently, judges conduct risk-assessment analyses during sentencing hearings, however, this is not enough to prevent repeat offenses of violent crimes. This bill intends to address concerns regarding repeat offenders of violent crimes in an effort to protect the well-being and safety of the public at large. In doing so, however, it is of upmost importance that the rights of felony offenders are protected and our Commonwealth’s finances are suitably utilized.

I appreciate hearing your concerns regarding the “three strikes” provision of the Habitual Offender bill. Currently, this bill is before the Conference Committee, of which I am not a part of. However, I will be sure to keep your thoughts and concerns in mind when it comes before the Senate for a final, formal vote.

While the Habitual Offender bill certainly constitutes a major step in criminal justice reform, this is still only one step. I currently serve on the Criminal Justice Commission and Sheriffs Commission, as well as the Judiciary Committee and the Public Safety and Homeland Security Committee. I have examined and discussed a multitude of approaches to sentencing reform in these capacities and will continue to be actively involved in these discussions as the legislature moves forward on this issue.

Thank you for taking the time to get in touch with me. If I can be of any assistance to you in the future, please do not hesitate to contact my office.

Sincerely,
Richard J. Ross
State Senator

If you get written response, and are willing to share (I'll take off your name!), let me know!
____________

UPDATE: pasting selections of comments, below, in order to have the references "hot linked" for your clicking pleasure:

• From "Deb": 
• Even if we changed nothing, our current system is unsustainable. This is not according to me; this is from Suffolk County Sheriff Andrea Cabral (http://thephoenix.com/Boston/news/133445-massachusetts-legislature-is-the-principal-roa/). We don't have room in many of our prisons; if we pass this legislation, we will have to build more within the next decade.
• FYI, building prisons is an expensive proposition. According to the South Carolina Department of Corrections (http://www.doc.sc.gov/faqs.jsp), a new prison can cost anywhere from $9 to $141 million. 
• UPDATE: Deb's Letter to Ed at JP GAZETTE: Letter: ‘Three strikes’ is too expensive | Jamaica Plain Gazette (3/2/2012)  -- "disappointed that so many social conservatives fail to be fiscally conservative."

• From "David": 
• Of course, we can speculate all day about what could happen. Fortunately, we have information from states that enacted this law. California's prisons are overflowing, at double their intended capacity (seehttp://www.kpbs.org/news/2009/oct/08/15-years-after-three-strikes-law-calif-prisons-pac/).
• "A study done by the Justice Policy Institute (JPI), a criminal-justice-reform think tank in Washington, found that of California's largest 12 counties, those that used three strikes the least had far greater declines in violent crime - than counties using three strikes the most." (see http://www.csmonitor.com/2004/0310/p02s02-usju.html/%28page%29/2). There's no real evidence that 3strikes will work as a deterrent for violent crime, so why are we doing this?
• From "John K":
• Here’s the list of violent felonies which will qualify for no parole on the third conviction in Mass. (you may have to copy/paste into your address bar) http://3strikeslaw.blogspot.com/search/label/ListFelonies