Criminal justice reform: Business as usual is not an option

Great Barrington — Changing the way the state does business in its criminal justice and corrections systems is very much on the agenda at the State House on Beacon Hill thanks to the Senate’s passage by a margin of 27-10 of a sweeping criminal justice reform bill late last month.

The House will soon take up the bill, so its fate remains uncertain, but there was passionate support for its approval on the part of the 60 or so people who attended a day-long criminal justice reform seminar Wednesday (Nov. 8) at Bard College at Simon’s Rock sponsored by the Osher Lifelong Learning Institute (OLLI) at Berkshire Community College.

Bard College at Simon’s Rock Provost Ian Bickford welcomes attendees at the Kellogg Music Center. Photo: Terry Cowgill

In his keynote address to attendees in the Kellogg Music Center, Sen. Adam Hinds, D-Pittsfield, noted right off the top that Massachusetts has one of the lowest incarceration rates in the nation, lower than all but North Dakota, New Hampshire, Rhode Island, Maine and Vermont.

See video of the first part of Sen. Hinds’ address below:

“So sure, it’s great,” Hinds said. “We’re doing well compared to others but were not doing well compared to ourselves. The rate [in Massachusetts] is four times higher than it was 40 years ago.”

Among the highlights of the bill championed by Hinds and sponsored by Sen. Will Brownsberger, D-Belmont, Senate chair of the Joint Committee on the Judiciary, are repealing “ineffective mandatory minimum sentences for low level drug offenders,” reducing and eliminating overburdensome fees and fines, reforming the bail system, allowing for compassionate release for infirmed inmates, and reforms to the juvenile justice system, Hinds said.Hinds pointed to a what he called a “profound study” by MassINC, an independent think tank whose director of research, Ben Forman, presented at the conference later in the day. The study examined incarceration rates and their geographical distribution in the city of Boston.

“When you look at where incarceration is happening, it is disproportionately impacting communities of color and communities of poverty,” Hinds said. “And that’s another reason we need to continue to dive in and say, ‘What are we doing wrong?'”

Ben Forman, director of research at MassINC. Photo: Terry Cowgill

The study further found that fully 75 percent of those convicted of a crime in Massachusetts have had prior involvement with the criminal justice system. Hinds said the bill will address the problem of recidivism. In a news release announcing the passage of the bill in the Senate, Hinds quoted Senate President Stan Rosenberg, D-Amherst, who led the charge:

“In state after state, criminal justice reform has led to lower incarceration rates, lower crime rates, and lower recidivism rates. It’s time Massachusetts joins the national let’s-get-smart-on-crime movement. This bill protects public safety and makes common-sense reforms while improving outcomes with our precious tax dollars.”

The legislation also addresses the issue of bail reform for defendants who cannot afford it. Hinds said the bill clarifies the Supreme Judicial Court’s recent ruling that cash bail must be affordable. And it goes beyond that guidance to further strengthen the procedural barriers to setting bail that is higher than a defendant can afford, to ensure individuals are not held solely because they are unable to pay.

Will Singleton, right, former president of the NAACP-Berkshire County Branch, makes a point during a discussion group. From left are Michael Margolis and Berkshire County Sheriff’s Deputy Robin McGraw. Photo: Terry Cowgill

Both Hinds and Forman pointed to the unintended consequences of holding a nonviolent defendant in jail for even a couple of months simply because he cannot afford bail. The defendant will likely lose his car and his apartment, making a return to a life of crime even more likely.

Hinds also cited a report issued by the Senate in November 2016, highlighting how these fees, including the $150 fee for legal counsel even if a person has been ruled indigent, “starts a vicious cycle of incarceration and punishing low-income defendants.”

See video of the second part of Sen. Hinds’ address below:

The bill, Hinds explained, would set a schedule to reduce and eliminate these fines and fees over time to protect indigent defendants. In addition, the bill reduces and eliminates monthly parole fees for individuals on parole.

Hinds also pointed out that the county sheriffs who run the county jails consistently tell him “one of our biggest problems is that the majority of folks that come in through their doors have behavioral and mental health problems.”

Berkshire County Sheriff Tom Bowler and Robin McGraw, one of his deputies, also spoke at the OLLI seminar and confirmed what Hinds said. All three said the sheriffs do what they can to counsel those with drug dependency and behavioral problems but that a jail is far from an ideal setting in which to do so.

Berkshire County Sheriff Tom Bowler chats with OLLI’s Katherine Kidd. Photo: Terry Cowgill

Hinds also point to studies by the Pew Trust and MassINC showing there is a growing consensus among the public for criminal justice reform on both the federal and state levels.

Some in the law enforcement community have spoken out against the Rosenberg bill. Nine of the state’s 11 district attorneys, including Berkshire County’s David Capeless, signed and sent a sharply worded six-page letter to Rosenberg outlining their opposition.

While acknowledging “there are aspects of the bill which we believe hold out promise and which we embrace,” the DAs said they “still feel that too many aspects of the bill throw it far out of balance.”

“This undermines the cause and pursuit of fair and equal justice for all, largely ignores the interests of victims of crime, and puts at risk the undeniable strides and unparalleled success of Massachusetts’ approach to public safety and criminal justice for at least the last 25 years,” the DAs said.

The DAs took particular exception to the proposed repeal of mandatory minimum sentences for certain drug crimes. “Where exactly are the residents eager for violent drug traffickers to be returned to their neighborhoods?” they asked rhetorically.

Katie Byrne, local coordinator of the Juvenile Detention Alternatives Initiative at the state Department of Youth Services. Photo: Terry Cowgill

And they were sharply critical of raising the age of criminal majority, or the age at which children can be prosecuted as adults, to 19 and rewriting the statutory rape laws. The DAs characterized the former as “I am not responsible for my actions, my brain is!” and the latter as “unnecessary and dangerous, especially to girls and young women.”

Also presenting at the conference were Christine Judd of Roca, an organization in Springfield that provides life skills for at-risk men, and Katie Byrne, local coordinator of the Juvenile Detention Alternatives Initiative at the state Department of Youth Services.

Perhaps the highlight of the day was a viewing of inmate art hanging in the student center lounge where conference attendees had lunch. Art instructor Phyllis Kornfeld, founder of Cellblock Visions, showed artwork created by incarcerated individuals with whom she has worked in Berkshire County and across the state and nation.

See video of Phyllis Kornfeld below:

Kornfeld has been mentoring artists in prisons for 35 years in four different states. She does not consider herself a conventional art instructor because “because what I want to get at is for people to discover parts of themselves that they have never known existed and never had the opportunity to express.”

Many of the artists have been represented by important galleries. Their work has been branded “outsider art” not because as inmates they are pariahs, but because few of them have any formal training at all. And she discourages the expression of anger.

“What I’m talking about is slowing down,” Kornfeld explained. “I disallow anything traditional or cliché or inspired by a person’s own victimization because I’m demanding the highest possible quality which ultimately comes from a place that is ineffable.”

Inmate art displayed by instructor Phyllis Kornfeld. Photo: Terry Cowgill

Kornfeld told the story of an inmate she worked with recently. The man had drawn a landscape and Kornfeld kept sending him back because she didn’t think he was “quite finished.”

“And when he came back the third time, he was holding this beautiful landscape in his hands with tears in his eyes and kept repeating himself, ‘I can’t believe I did this.’”

But enough of art – back to the prosaic. The bill now goes to the Massachusetts House of Representatives for consideration. If the House passes a different bill, then the two pieces of legislation will go a conference committee where they will be reconciled. Then it will be up to Gov. Charlie Baker to decide whether to sign it.