By Andy Metzger
BOSTON – Senate members of the Judiciary Committee on Friday advanced a 114-page criminal justice bill that would phase out the indigent counsel fee, require regular reviews to determine whether a prisoner should stay in solitary confinement, and allow people to effectively wipe old charges from a national database.
The proposal received support from four of the five Senate Democrats on the 17-member Judiciary Committee in a poll that ended Friday afternoon, according to the Senate chairman, who said there were no votes against it. The committee on Friday did not release a tally of the vote or how committee members voted.
A bill that also moved out of committee Friday with a favorable recommendation focuses on rehabilitating people already caught up in the justice system and giving them more opportunities at early release from incarceration. That bill was reported to the House.
Senate President Stan Rosenberg this week said anticipates floor debate in the Senate on criminal justice legislation in the next couple weeks.
“There are going to be two moving vehicles here,” Sen. William Brownsberger, a Belmont Democrat and Senate chairman of the Judiciary Committee told the News Service. He said, “Hopefully we’ll all go across the goal line together.”
Rep. Claire Cronin, the House chairwoman of the Judiciary Committee, has met with more than 50 House lawmakers so far about criminal justice, according to an aide.
“We will be putting forth a bill that will reflect the shared priorities of our House membership,” Cronin said in a statement.
The House bill roughly follows legislation filed by Gov. Charlie Baker, based on recommendations from the Council of State Governments. Cronin said, “The House will continue to work with our members to build upon the gains of the CSG legislation.”
Cronin had advised House members, who hold a majority on the committee, to reserve their rights on the Senate bill, allowing it to advance to the Senate with a favorable recommendation.
Wrentham Sen. Richard Ross, the only Senate Republican on the Judiciary Committee, told the News Service he reserved his rights on both bills.
The Senate bill will head next to the Senate Committee on Ways and Means, Brownsberger said.
The Senate bill is ambitious, seeking to alter how people who break the law are handled by prisons, the Registry of Motor Vehicles and by human resources departments that want to review job applicants’ criminal histories. Many of the topics addressed in the Senate bill are not addressed in the House bill, which could foreshadow difficult negotiations ahead.
Under current law, someone can seal records for felonies after 10 years and misdemeanors after five years, but a trace of those old criminal charges remains in the national fingerprint database, according to Brownsberger, and those records can torpedo employment prospects.
“People say, ‘Oh sealing doesn’t work. There’s something wrong with our sealing process in Massachusetts.’ No. You could seal; you could expunge; you could destroy the entire court system in Massachusetts and all the computers. Still down in Washington, there’s this record,” said Brownsberger.
He said the Senate bill will allow the state to coordinate with the federal government to better shield those old records in federal custody, so sealed records could still be accessed for national security checks but most employers would not be able to see them. The bill would also allow people to seal felony records after five years and misdemeanors after three, and allow the crime of resisting arrest to be sealed.
The Senate legislation would impose stricter sentences on fentanyl trafficking, putting that drug in the same category as heroin, where people face mandatory minimum sentences for trafficking. The bill would also relax sentencing for cocaine crimes, repealing mandatory minimums for trafficking anything less than 100 grams of coke.
“For all the concern about opiates, there’s more cocaine sentencing going on than heroin sentencing even today, so this bill is focusing our resources on our biggest problem, which is opiates,” said Brownsberger. He said, “Dealers know that from a criminal justice standpoint it’s almost safer to sell fentanyl. So we actually have the wrong incentives in place. Fentanyl is clearly a more dangerous drug than heroin.”
If an inmate attacks someone, Bay State prison officials can put them in restricted housing, including what is commonly referred to as solitary confinement, for up to 10 years, according to Brownsberger. The Senate bill would require regular reviews to determine whether the restricted housing is appropriate and mandate that prisoners receive programming while they are segregated from the general prison population, Brownsberger said.
“There are a few people – the Hannibal Lecters that you never want out of the cell, ever,” said Brownsberger, who said there are several hundred inmates in some form of Department of Correction restricted housing.
The state would forego some revenue under the plan advanced by the Senate side of the Judiciary Committee. Over three years the bill would phase out the $150 fee imposed on criminal defendants who are unable to afford a lawyer. When fully implemented that would mean the state goes without about $7 million annually that it currently receives, according to Brownsberger.
State Auditor Suzanne Bump in 2016 found that the Parole Board assessed a total of $794,865 in supervision fees in fiscal 2015 and only collected about 75 percent of that. The Senate bill would do away with parole fees at a cost of about $800,000, said Brownsberger, who said he wanted to eliminate probation fees, too, but the Senate Committee on Ways and Means determined that was infeasible.
The state’s bail system would be overhauled under the Senate proposal so that it better accounts for defendants’ ability to pay, according to Brownsberger, who said, “The bail statute is a mess as written. It’s a disaster.”
The Senate bill does not incorporate a proposal sponsored by Baker to make drug dealers liable for manslaughter charges if the product they sell winds up killing a user.
“I understand the motivation behind it,” said Brownsberger, who said he was concerned that the possibility of serious criminal charges would discourage people from alerting authorities when people overdose.
License suspensions for missed court dates and unpaid traffic tickets can become a “financial trap” for people who need a car to get to work, and the Senate bill aims to “reduce the number or ways that people can get tangled up” in the Registry of Motor Vehicles, Brownsberger said.
The state’s prison population has fallen since 2012, according to Department of Correction data, which reports there are now about 9,200 people incarcerated in its system. The state has the second lowest incarceration rate in the country, according to the Office of Public Safety and Security. Overall, Brownsberger said the Senate bill should reduce the state’s inmate population further.
“I believe this will result in fewer people being incarcerated or for people being incarcerated for shorter periods of time and that’s the direction of change we think we need to go in,” Brownsberger said. He said, “We can turn a knob here in the legislature but they can turn another knob back if they don’t think we’re doing the right thing, so I have some humility about the extent to which the changes we make will have direct impact.”
The state last passed a major criminal justice reform bill in 2012, when lawmakers maximized penalties for three-time felons and reduced some mandatory minimum drug sentences. At the time, legislative leaders told then-Gov. Deval Patrick they would follow-up with further reforms but those have been slow to materialize.
The rate of violent crime dropped in Massachusetts between 2010 and 2016, when there were 25,677 offenses reported, according to the FBI.