This story ran in the Marblehead Wicked Local Paper. Meghann Perry and I are available to speak, fill the pulpit, set up a table to share solutions on what voters in Massachusetts can do to volunteer in prison or jail and to reform our justice and corrections systems.
Proponents of justice system reform believe that drug addiction should be treated as a health problem and not a crime, and that over-incarceration of the poor, mostly black males, is the civil rights issue of our time.”Reform takes baby steps and it takes a lot of people working together to make it happen,” said Susan Tordella, co-founder of End Mass Incarceration Together (EMIT), a task force of the Unitarian Universalist Church Mass Action Network. “It’s about breaking down barriers and
Gregory L. Diskant is a senior partner at the law firm of Patterson Belknap Webb & Tyler and a member of the national governing board of Common Cause.
On Nov. 12, 1975, while I was serving as a clerk to Supreme Court Justice Thurgood Marshall, Justice William O. Douglas resigned. On Nov. 28, President Gerald R. Ford nominated John Paul Stevens for the vacant seat. Nineteen days after receiving the nomination, the Senate voted 98 to 0 to confirm the president’s choice. Two days later, I had the pleasure of seeing Ford present Stevens to the court for his swearing-in. The business of the court continued unabated. There were no 4-to-4 decisions that term.
Today, the system seems to be broken. Both parties are at fault, seemingly locked in a death spiral to outdo the other in outrageous behavior. Now, the Senate has simply refused to consider President Obama’s nomination of Judge Merrick Garland to the Supreme Court. Meanwhile, dozens of nominations to federal judgeships and executive offices are pending before the Senate, many for more than a year. Our system prides itself on its checks and balances, but there seems to be no balance to the Senate’s refusal to perform its constitutional duty.
The Constitution glories in its ambiguities, however, and it is possible to read its language to deny the Senate the right to pocket veto the president’s nominations. Start with the appointments clause of the Constitution. It provides that the president “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint . . . Judges of the supreme Court, and all other Officers of the United States.” Note that the president has two powers: the power to “nominate” and the separate power to “appoint.” In between the nomination and the appointment, the president must seek the “Advice and Consent of the Senate.” What does that mean, and what happens when the Senate does nothing?
In most respects, the meaning of the “Advice and Consent” clause is obvious. The Senate can always grant or withhold consent by voting on the nominee. The narrower question, starkly presented by the Garland nomination, is what to make of things when the Senate simply fails to perform its constitutional duty.
The Fix’s Amber Phillips breaks down three ways the Merrick Garland nomination could play out. Which do you think is most likely? (Peter Stevenson/The Washington Post)
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It is altogether proper to view a decision by the Senate not to act as a waiver of its right to provide advice and consent. A waiver is an intentional relinquishment or abandonment of a known right or privilege. As the Supreme Court has said, “ ‘No procedural principle is more familiar to this Court than that a constitutional right,’ or a right of any other sort, ‘may be forfeited in criminal as well as civil cases by the failure to make timely assertion of the right before a tribunal having jurisdiction to determine it.’ ”
It is in full accord with traditional notions of waiver to say that the Senate, having been given a reasonable opportunity to provide advice and consent to the president with respect to the nomination of Garland, and having failed to do so, can fairly be deemed to have waived its right.
Here’s how that would work. The president has nominated Garland and submitted his nomination to the Senate. The president should advise the Senate that he will deem its failure to act by a specified reasonable date in the future to constitute a deliberate waiver of its right to give advice and consent. What date? The historical average between nomination and confirmation is 25 days; the longest wait has been 125 days. That suggests that 90 days is a perfectly reasonable amount of time for the Senate to consider Garland’s nomination. If the Senate fails to act by the assigned date, Obama could conclude that it has waived its right to participate in the process, and he could exercise his appointment power by naming Garland to the Supreme Court.
Presumably the Senate would then bring suit challenging the appointment. This should not be viewed as a constitutional crisis but rather as a healthy dispute between the president and the Senate about the meaning of the Constitution. This kind of thing has happened before. In 1932, the Supreme Court ruled that the Senate did not have the power to rescind a confirmation vote after the nominee had already taken office. More recently, the court determined that recess appointments by the president were no longer proper because the Senate no longer took recesses.
It would break the logjam in our system to have this dispute decided by the Supreme Court (presumably with Garland recusing himself). We could restore a sensible system of government if it were accepted that the Senate has an obligation to act on nominations in a reasonable period of time. The threat that the president could proceed with an appointment if the Senate failed to do so would force the Senate to do its job — providing its advice and consent on a timely basis so that our government can function.
The Netherlands is running out of incarcerated people by treating them like individual human beings. From the BBC News and The Marshall Project.
By Lucy Ash BBC News, Veenhuizen 10 November 2016 Magazine While the UK and much of the world struggles with overcrowded prisons, the Netherlands has the opposite problem. It is actually short of people to lock up. In the past few years 19 prisons have closed down and more are slated for closure next year. How has this happened and why do some people think it’s a problem? N
The smell of fried onions wafts up the metal staircase, past the cell doors and along the wing. Down in the kitchen inmates are preparing their evening meal. One man, gripping a long serrated blade, is expertly chopping vegetables. “I’ve had six years to practice so I am getting better!” he says.
It is noisy work because the knife is on a long steel chain attached to the worktop. “They can’t take that knife with them,” says Jan Roelof van der Spoel, deputy governor of Norgerhaven, a highsecurity prison in the northeast of the Netherlands. “But they can borrow small kitchen knives if they hand in their passes so we know exactly who has what.”
Some of these men are inside for violent offences and the thought of them walking around with knives might seem alarming. But learning to cook is just one of the ways the prison helps offenders to get back on track after their release.
“In the Dutch service we look at the individual,” says Van der Spoel. “If somebody has a drug problem we treat their addiction, if they are aggressive we provide anger management, if they have got money problems we give them debt counselling. So we try to remove whatever it was that caused the crime. The inmate himself or herself must be willing to change but our method has been very effective. Over the last 10 years, our work has improved more and more.”
He adds that some persistent offenders known in the trade as “revolving door criminals” are eventually given two year sentences and tailormade rehabilitation programmes. Fewer than 10% then return to prison after their release.
In England and Wales, and in the United States, roughly half of those serving short sentences reoffend within two years, and the figure is often higher for young adults. Norgerhaven, along with Esserheem another almost identical prison in the same village, Veenhuizen have plenty of open space. Exercise yards the size of four football pitches feature oak trees, picnic tables and volleyball nets.
Van der Spoel says the fresh air reduces stress levels for both inmates and staff. Detainees are allowed to walk unaccompanied to the library, to the clinic or to the canteen and this autonomy helps them to adapt to normal life after their sentence. A decade ago the Netherlands had one of the highest incarceration rates in Europe, but it now claims one of the lowest 57 people per 100,000 of the population, compared with 148 in England and Wales.
But better rehabilitation is not the only reason for the sharp decline in the Dutch prison population from 14,468 in 2005 to 8,245 last year a drop of 43%. The peak in 2005 was partly due to improved screening at Amsterdam’s Schiphol airport, which resulted in an explosion in the numbers of drug mules caught carrying cocaine.
Today the police have new priorities, according to Pauline Schuyt, a criminal law professor from the southern city of Leiden. “They have shifted their focus away from drugs and now concentrate on fighting human trafficking and terrorism,” she says. In addition, Dutch judges often use alternatives to prison such as community service orders, fines and electronic tagging of offenders. Angeline van Dijk, director of the prison service in the Netherlands, says jail is increasingly used for those who are too dangerous to release, or for vulnerable offenders who need the help available inside. “Sometimes it is better for people to stay in their jobs, stay with their families and do the punishment in another way,” she says from her brightly lit office at the top of a tower block in The Hague.
“We have shorter prison sentences and a decreasing crime rate here in the Netherlands so that is leading to empty cells.” But while recorded crime has shrunk by 25% over the past eight years, some argue that this results from the closure of police stations, as a result of budget cuts, which makes crime harder to report.
Find out more
Listen to Lucy Ash’s report Prisons for rent in the Netherlands for Assignment on the BBC World Service Click here for transmission times, or to listen online Other critics, such as Madeleine Van Toorenburg a former prison governor and now the opposition Christian Democratic Appeal party’s spokeswoman on criminal justice blame the shortage of prisoners on low detection rates.
“The police are overwhelmed and can’t handle their work load,” she says. “And what is the government’s response? Closing prisons. We find that surprising.” What is clear is that many of Angeline van Dijk’s staff are not happy about the lack of people to lock up. Frans Carbo, the prison guards’ representative from the FNV union, says his members are “angry and a little bit depressed”.
Young people don’t want to join the prison service he adds “because there is no future in it any more you never know when your prison will be closed”. One empty prison was turned into a fancy hotel south of Amsterdam, its four most expensive suites named the The Lawyer, The Judge, The Governor and The Jailer. But others, converted into asylum reception centres, have provided work for some former prison guards. The desire to protect prison service jobs has sparked another surprising solution the import of foreign inmates from Norway and Belgium.
“At one point our state secretary met the Norwegian minister of justice and said I have some cells to spare you can rent one of our prisons,” says Jan Roelof van der Spoel. So last September Norway began sending some of its convicts south to serve their sentences at Van der Spoel’s prison, Norgerhaven. The governor of the prison is now a Norwegian, Karl Hillesland, but the prison guards keeping an eye on the 234 men locked up here are Dutch.
A mildmannered former bookseller with a bushy moustache, Hillesland strikes me as an unlikely jailer. His green uniform with epaulettes looks extremely formal, and is nothing like the relaxed clothing of his Dutch colleague, but in fact Norway has a more liberal prison regime than the Netherlands, he says. Norwegian inmates are allowed, for example, to give media interviews and watch DVDs of their choice because the underlying principle is one of “normalisation”, meaning that life in prison should replicate life on the outside as closely as possible to help exoffenders reintegrate into society.
“There are some differences in the way we do things,” says Van der Spoel. “We discipline a prisoner for breaking the rules straight away whereas the Norwegians do an investigation and wait a while before imposing the punishment. For our guards that style of working was a bit tough to begin with.” “But on the whole”, says Hillesland, “we share the same basic values about how to run a prison.” He adds that a few prisoners were forced to come here from Norway but most volunteered, partly because groceries and tobacco are cheaper in Holland.
A recently installed Skype room is another big attraction at Norgerhaven. Relatives who want to visit have to pay their own travel costs, and a round trip costs at least 500 euros with an overnight in a hotel. But many of the longterm prisoners are foreign nationals who very rarely saw their families anyway when they were behind bars in Norway. Michael’s immaculately tidy cell is decorated with pictures of his football team and his four small children. A welder from northern Poland he was convicted in Norway but didn’t have access to Skype in prison there.
“My wife is busy looking after four kids and trying to hold down a job and anyway she doesn’t have the money to come and see me”, he says. “So I opted for this prison so I could see my family and not just hear their voices on the phone.” He stares at the floor for a moment or two. “After the Skype call it’s very hard especially at Christmas and Easter but it is better than nothing.” As I leave through security doors and clanging gates I wonder what will happen to Norgerhaven once the Norwegians have gone in a few years’ time. The guards know that one of the Veenhuizen jails Norgerhaven or Esserheem will be listed for closure next year.
But could the numbers of prisoners in the Netherlands ever rise again? A walk through the village is a reminder that, in the distant past, the Netherlands locked up large numbers of citizens. It’s located in the remote, sparsely populated Drenthe province a land of peat bog, fens and heather known as the “Dutch Siberia”, and a place where beggars, tramps, penniless orphans and other “undesirables” were exiled from the cities in the 19th Century.
An army general founded a reform colony in Veenhuizen, which he believed could eradicate poverty. Over time the institution morphed into a penal colony which was closed to outsiders until the 1980s. According to a demographer, one million of Holland’s 17m citizens alive today are descendants of people exiled to Veenhuizen. “That’s a huge chunk of the population,” says Amsterdambased author Suzanna Jansen, whose grandfather was sent there for begging. “And being raised in poverty, in a difficult environment is something that could happen to any one of us, so I think we should remember that when we think about those behind bars today.”
More from the Magazine Two Norwegian institutions vie for the title of the world’s “nicest” or “most humane” prison. Inmates on the prison island of Bastoey, south of Oslo, are free to walk around in a villagestyle setting, tending to farm animals. They ski, cook, play tennis, play cards. They have their own beach, and even run the ferry taking people to and from the island. And in the afternoon when most prison staff go home, only a handful of guards are left to watch the 115 prisoners.
Sign a petition to end the unfair Electoral Collegethat delivered Bush II and Trump, whose opponents won the popular vote. This antiquated tradition emanates from 1776 when our wealthy white founding fathers deemed that the people could not be trusted with the responsibility to directly elected the president.
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SAVE Monday, Dec. 12, 7-8 pm. Join a statewide EMIT conference call to hear updates on the Council of State Government’s process to evaluate our justice/corrections systems, AND what legislation they are proposing to Beacon Hill, based on their neutral research.
SAVE Tuesday, Dec. 13, 10 am, Boston. Join our allies, Jobs not Jails, at a rally/press conference across from the State House at 140 Bowdoin Street, Church of the New Jerusalem to call on the four state leaders filing the criminal justice reform to include the six proposals of the Jobs NOT Jails Coalition.
Make our votes count – other states give hope for 2018 election — in this article from The Nation. In Massachusetts, 14 district attorneys will be up for re-election. We need to support alternative candidates who do not intimidate the accused and force plea deals to avoid trials. We have the power to elect sane district attorneys who embrace restorative justice. Many Massachusetts sheriffs ran with no opponent for 6-year terms. We must levereage our power through voting and running for office.
Election Night Saw Victories in Local Criminal-Justice Reform—This Should Be the Beginning
Local prosecutor and sheriff races are winnable and build power.
For progressives, winter came early this year. It started around 8:30 pm on Tuesday, November 8 and has been growing steadily colder ever since. Republican control of the White House, the House of Representatives, and the Senate, does not bode well for a range of issues close to the heart of American progressivism, from health care to immigration to the environment.
But, amid a sea of bad news that evening, there emerged an island of hope. It came, of all unlikely places, in Jefferson County, Alabama, home to Birmingham. On Wednesday morning, Brandon Falls, the incumbent Republican district attorney, conceded that he lost his seat to Charles Todd Henderson, who became the first Democrat to be elected district attorney in over a decade. Henderson won his race in deep-red Alabama by promising to end “mass incarceration of those with drug addictions and mental illness,” and by revealing that he is “not supportive of the death penalty nor incarcerating our children in adult jails and prisons.”
Henderson’s victory in Birmingham is no fluke. Until last year, district-attorney races tended to fly under the public radar. Elected prosecutors were routinely reelected, often running unopposed and, as a result, served for decades. When they did bother to campaign, their slogans frequently highlighted a record of sending as many people to prison for as long as possible. But that recipe for electoral success is changing. And, with increased attention to these races from extraordinary faith-based groups, community advocates, and local journalists, as well as an influx of support from national donors such as George Soros, progressive challengers are gaining footholds in local races across the country.
In Harris County, Texas, which includes Houston, Republican Devon Anderson lost her seat to challenger Kim Ogg, who has promised to overhaul drug prosecutions and has criticized the DA’s office for seeking the death penalty too often. The same basic story emerged in Hillsborough County, Florida, which includes Tampa, where incumbent Republican Mark Ober lost to challenger Andrew Warren. Earlier this year, elected prosecutors lost their primary races to more progressive, reform-minded candidates in Albuquerque, Chicago, Denver, and Jacksonville. In Corpus Christi, Texas, Mark Gonzalez, a criminal-defense lawyer and Democrat with the words “NOT GUILTY” tattooed on his chest, became the district attorney–elect this week.
These local electoral victories are not limited to prosecutor races. In Maricopa County, Arizona, Sheriff Joe Arpaio, infamous for his fearmongering, cruel and degrading tactics, and barbaric crackdown on immigrants, lost his election. The Harris County sheriff was defeated as well. Nor does the momentum for reform within local district-attorney and sheriff offices exclusively revolve around elections. In Seattle, a partnership among community groups, the public defender, law enforcement, and the King County District Attorney’s Office led to the creation of the Law Enforcement Assisted Diversion program, which steers people arrested for drug offenses and prostitution away from prosecution and into services aimed at decreasing recidivism such as drug treatment and job training. LEAD, which began in Seattle in 2011, spread to Santa Fe, New Mexico, in 2014, and to Albany, New York, earlier this year.
These victories represent tangible progress in the ongoing struggle among a dedicated band of progressive advocates in the fight for a more humane and sensible justice system, one that strives to keep us safe while simultaneously treating people fairly and conserving taxpayer dollars.
More importantly, though, this string of successes shows the enormous promise of focusing on both criminal-justice reform and American progressivism more broadly at the local level. While significant advances in climate change and immigration reform require congressional action, criminal-justice reform is an entirely different beast. The center of gravity for meaningful reform tends to be local. Should police officers use stop and frisk tactics? Conduct invasive raids of homes while investigating nonviolent offenses? Use military style vehicles? Those are decisions made by individual police departments or city councils, and are influenced by community advocates. Should prosecutors ask for bail, and how much? Prosecute nonviolent drug possession cases? Prosecute homelessness related offenses, such as sit-sleep-lie bans? Transfer juveniles to adult court? Seek the death penalty? For those decisions, too, local politics matter.
Local criminal-justice reform also serves as a bulwark against the worst impulses of Trumpism. What happens when a Donald Trump Justice Department, perhaps led by Rudolph Giuliani, refuses to intervene when a local police chief suppresses the speech of citizens who are protesting? How about when law enforcement fails to address targeted attacks on our most vulnerable citizens, such as ripping off a Muslim woman’s hijab? Mayors appoint police chiefs. So, here, too, local politics matter. If Trump continues to say that the Central Park Five should be executed, advocate for a national stop-and-frisk program, or claim falsely that the murder rate is at a 45-year high (it is not; in fact, 2015 had one of the lowest rates in 45 years), this use of the bully pulpit may stir local law enforcement and prosecutors into retributive excess. Resources and attention at the local level are an antidote to this fearmongering, allowing advocates and journalists to douse the flames before they can commence a second age of mass incarceration.
The election of Donald Trump may send forth global tremors in many areas. But it changes very little on issues related to criminal-justice reform as practiced at the local level. Roughly 50 million people live in just 15 of the counties that Clinton won this week. Some of these counties voted for Clinton by a margin of 2-1. If disheartened citizens and advocates chose to refocus their resources and attention to pushing reforms in these places, they could quickly see significant gains in the battle to end mass incarceration and help secure relief for millions of Americans.
Moreover, in 2017, there will be district-attorney races in several progressive strongholds. We know that there are over 100 such races in 2018. And that number does not include sheriff races. Nor does it include city-council members and county commissioners who shape budgets and priorities or mayors who appoint police chiefs. Progressive power could be particularly potent in urban areas, where so many progressive advocates reside, and where the need for reform is profound. Unlike at the federal (and often state) level, the population most burdened by overzealous prosecution and policing also possesses the most power to influence local politics.
Criminal-justice reform is not among many progressives’ priorities, but this local analysis shows why it should be. First, in places like Durham, North Carolina, traditional Democratic strongholds with large black populations situated in swing states, investing in local criminal-justice reform could help with voter turnout in 2018 and 2020. Given the narrow margins that tend to accompany wins in states like North Carolina, voter mobilization in these locations is incredibly important for progressives. Investment in criminal-justice reform at the local level creates a strong infrastructure that includes organizers, church leaders and civil-rights organizations. Unlike “out-of-town swoop down” get out the vote efforts, local power in the criminal-justice space draws on strong preexisting relationships, communications channels, and mobilization infrastructure. Most importantly, though, creating the energy to mobilize around local races serves as an insurance policy against national candidates who are less than inspiring.
One reason Clinton lost Ohio, Michigan, Pennsylvania, and Wisconsin—all by relatively small margins—is a persistent inability to connect with working-class white voters. Criminal-justice reform is an issue that can bridge this divide. Most people—black, white, brown, and Asian—have a family member, a neighbor, or a friend who struggles with mental illness and addiction. For many of us, and especially for those who struggle financially, those addictions inevitably intersect with the criminal justice system. White people, too, and especially marginalized white people who feel that government has abandoned them, struggle to pay overly punitive fines and fees, languish in jail because they cannot afford unnecessarily high bail, and struggle to find employment after convictions for marijuana possession and other low-level offenses. White people, too, are treated as disposable by the criminal-justice system.
There is also an opportunity to connect the massive taxpayer investment in stop-and-frisk and other programs that do not reduce violent crime with overly intrusive government, overzealous and unaccountable public servants, and colossal misuses of resources. Indeed, these are exactly the rationales that have propelled conservatives and libertarians, such as Right on Crime and the Koch brothers, into criminal-justice reform.
Finally, focusing on criminal-justice reform, especially at the local level, helps to create a pipeline of future progressive leaders. First, as an issue, criminal-justice reform is particularly compelling and often very personal, especially among those who have watched our broken system destroy the lives of family members and neighbors. A strong, progressive local criminal-justice reform community is able to attract and recruit the next generation of prosecutors, sheriffs, and other local officials.
These local officials become powerful in statewide prosecutor and police associations, groups with enormous influence at the statehouse, and often become state legislators, judges, attorney generals, and governors. Kamala Harris, who was elected to the United States Senate this week, is a striking example. She started as the district attorney of San Francisco County, became California’s attorney general, and now she’s headed to Congress. Who knows, perhaps the pathway from criminal-justice reformer to progressive visionary will take her all the way to the White House.
BARRY CHIN/GLOBE STAFF Chief Justice Ralph Gants of the Supreme Judicial Court says a review of socalled finetime practices is underway. Scores of indebted become ‘finetime’ inmates. Posted from The Boston Globe.
By Milton J. Valencia GLOBE STAFF NOVEMBER 07, 2016
They call it “finetime” — a questionable practice in which defendants “pay off” court fines and fees by serving time behind bars, even if they never committed a crime deserving of jail time in the first place.
A sampling of cases in Massachusetts from last year showed more than 100 instances in which defendants were sent to jail because they could not afford to pay a fine, a practice first laid bare in the federal investigation into the criminal justice system in Ferguson, Mo., two years ago, sparking outcries of discrimination in that state. The 105 examples were cited in a report to be filed this week by the state Senate Committee on Post Audit and Oversight. Among them:
■ A defendant charged with driving under the influence of alcohol was ordered to serve 25 days in jail for failing to pay $760 in fines and fees. “Do I have any say on this? Like, any defense?” the defendant asked.
■ In Leominster District Court, a defendant who owed $175 two years after a shoplifting offense was sent to jail, even though he told the judge he intended to pay the money within a month.
■ A third case was described to the Globe directly by the defendant, identified as James K. He told state officials he was looking to get his driver’s license, so that he could apply for a job, after serving prison time for a robbery in New York City when he was a teenager, he said. However, he had outstanding fines for a drug arrest years earlier in Dudley District Court.
When he returned to Dudley last year looking to address the fines, he said he was told he owed more than $1,000. He said he could not pay, that he had stayed in a homeless shelter the night before. He was sent to jail for 36 days.
“I was in disbelief, saying ‘You’re going to lock me up because I can’t pay a fine?’ ” said James K, who asked that his last name not be used to protect his privacy during job searches.
“It’s counterintuitive,” he said. “I was sent to jail because I was poor.” The 105 examples are from Worcester, Plymouth, and Essex counties. It’s unclear how many other cases may have also occurred in other counties.
The review found that most of the 105 defendants who were sent to jail had initially arrived at the court for a relatively minor offense: 40 percent of the cases related to automobile violations that did not involve allegations of operating under the influence. In 16 percent of the cases, the original charge was for public disorder, such as disorderly conduct, public drinking, or trespassing.
None of the 105 defendants went to trial on the original offense, and in 60 percent of the cases the charges were continued without a finding or disposed of with pretrial probation. In 40 instances, the defendant was guilty of at least one charge, but only four ended up serving jail time at the original disposition of the case.
Ultimately, the sentences ranged from one day to 112 days. In nearly half of the cases, the defendant was ordered to serve at least two weeks.
The state expects more than $40 million in fees and fines each year, half of it related to probation fees, according to the Committee on Post Audit and Oversight. Senator Michael Barrett, a Democrat from Lexington and chairman of the Committee on Post Audit and Oversight, said the review raised troubling questions about the state’s dependence on revenue from the poor, through the imposition of fees and fines — with stiff enforcement designed to make people pay up.
“We do this in the name of punishment, but it turns out to be a nifty business in terms of revenue generation, and we’ve grown too fond of what it pulls in,” said Barrett, an attorney by trade. “It’s a moneymaking sideline, run by the criminal justice system. The money comes out of the hides of not only poor offenders who have to get their lives back on track, but also the families of poor offenders. . . . We need to descale the hunt for revenue to sustain the court system.”
The review comes as top court officials have recently acknowledged the need for the courts “to provide equal justice for those who face financial challenges.” Ralph Gants, chief justice of the Supreme Judicial Court, said in his annual State of the Courts address last month that “We are examining whether we are unwittingly punishing poverty by the imposition of fines, fees, and restitution that a defendant has no ability to pay, and taking steps to ensure that the inability to pay does not result in the revocation of probation, the inappropriate extension of a period of probation, or time in jail.”
Barrett said the review of cases and state laws shows it may take a combination of new court policies and legislative fixes to address the issue. ‘We are examining whether we are unwittingly punishing poverty by the imposition of fines,fees, and restitution . . . ’
State law, for instance, allows for a defendant to pay off fees by serving jail time, at a rate of $30 a day. Barrett’s committee called for increasing the rate to $60, so that a defendant can pay off his dues quicker if jail becomes an option.
The review also found that judges failed to appoint lawyers for defendants — who had already been declared indigent — when considering whether to send them to jail for failure to pay fines, a potential violation of their constitutional right to counsel. Barrett’s committee called on the Supreme Judicial Court to uphold a defendant’s right to an attorney in such cases, saying the court has not yet addressed the issue directly.
At the least, Barrett said, the courts should set policy requiring judges to appoint lawyers and to better inquire into whether a defendant is being in contempt of the court, or truly cannot pay. He also said the courts should consider alternatives to sentencing someone to jail.
“I’m not suggesting all fees go away. I think there’s a place for fines and fees in the fullness of things,” Barrett said. “Some people can feel the sting, and still pay it, but for some people this is more than a sting. It means you can’t pay rent for the month. That’s what we’re finding in these cases.”
Cassandra Bensahih, executive director of the Worcesterbased advocacy group ExPrisoners and Prisoners Organized for Community Advancement, said the report shows the cycle of hardships that many lowincome people face, in which they can’t get a job because of past encounters with the criminal justice system, and so they can’t pay their fines.
“When they can’t find employment, can’t find jobs, what are they to do?” she said. Milton J. Valencia can be reached at email@example.com. Follow him on Twitter @miltonvalencia.
You’re invited to join a last-minute push in New Hampshire, where their 4 electoral votes are being hotly contested for US President and to tip the US Senate to a democratic majority. NH residents can register to vote on Election Day, people in low-income neighborhoods are being encouraged to vote.
You are invited to campaign door-to-door in Manchester, NH starting at 3 pm on Monday, Nov. 7.
Contact Darren, 917-327-6528 to participate. I’ll be going on Monday if anyone wants to carpool from Route 495/Ayer area. On Saturday, activists from Vermont and Mass. showed up to canvass and Spanish speakers were particularly welcomed.
On Tuesday Nov 8 join with progressive reformers at the campaign/election night party, hosted by State Sen. Jamie Eldridge [D-Acton], a leader for justice and corrections systems reform on Beacon Hill. The party is at the Boxborough Holiday Inn, 242 Adams Place, Boxborough, 8 pm – until midnight. Campaign donation for Sen Eldridge requested, cash bar, light refreshment served. Hope to see you there.
Former Gov. Michael Dukakis and Susan Tordella, co-founder of EMIT at a campaign event for State Sen. Jamie Eldridge, one of the leading progressives on Beacon Hill. Jamie is a co-leader of the Harm Reduction and Drug Law Reform Caucus at the Massachusetts Statehouse. He works tirelessly to end mass incarceration and reform our state’s corrections, probation and courts systems for the betterment of all.