Buyer beware: Habitual offender bills

It’s fair to say that the Legislature is under pressure to respond to the demands for a tougher habitual offender law.  That was evident at the Joint Judiciary Committee’s March 16 public hearing, where a standing-room-only crowd packed the hearing room.  Under the glare of TV news cameras and amid the jumble of media microphones, Les Gosule described yet again the heart-wrenching details of his daughter Melissa’s 1999 rape and murder at the hands of a man with a lengthy criminal record.  If it was hard to listen to, it was impossible to imagine a family actually experiencing such a horrific crime.  Next, backed by police chiefs from across the Commonwealth, Woburn Police Chief Philip Mahoney described the 2010 shooting death of his veteran officer, John Maguire, allegedly by a “lifer” on parole. 

Although several habitual offender bills were being considered at the hearing, legislators, district attorneys and others lined up to testify in favor of Rep. Bradford Hill’s bill, H.434, better known as “Melissa’s Bill.”  Witness after witness urged lawmakers to crack down on “repeat violent offenders.” Yet H.434 never mentions violent offenders at all. And that should worry the bill’s supporters.  

We’ll sort them out later?

Under current law, a defendant who twice has been convicted of any offense and sentenced to at least three years in prison must receive the maximum possible sentence upon conviction of any third offense.  The only exception is if the defendant was pardoned for either offense due to innocence.  H.434 offers two more avenues for a habitual offender conviction.

Under the first proposal, a defendant who was “twice convicted in the Superior Court of a felony” must receive the maximum possible sentence for a third “conviction in the Superior Court of a felony.”  That’s the actual language.  There is no mention of violent crimes.

Families Against Mandatory Minimums is especially concerned about the interplay between H.434 and mandatory minimum drug sentencing laws.  Drug offenders are already subject to disproportionately harsh sentences that are often longer than the sentences for violent crimes – even for first-time offenders, even when the offender is an addict.  Consider:

• A drug offender who sells 28 grams of heroin (about two tablespoons) must be sentenced to a minimum of seven years in prison, with a maximum possible sentence of 20 years.  Yet the sentence for assault with intent to maim ranges from probation to 10 years.
• A drug offender who sells 200 grams of cocaine (the size of a can of baking powder), must be sentenced to a minimum of 15 years in prison, with a maximum possible sentence of 20 years.  Yet the sentence for attempted murder ranges from probation to 20 years.
• Any drug offense committed within 1,000 feet of a school requires a minimum sentence of two years, with a maximum possible sentence of 15 years – even if the crime did not involve children, was committed when school was not in session and would not require any jail time if committed at a different location.  Yet the sentence for using a weapon to cause serious bodily injury ranges from probation to 15 years.

Nonviolent drug offenders are already getting hammered with lengthy – and costly – prison sentences that have little relation to the threat they pose to public safety.  This section of H.434 would make a bad situation worse.  And more to the point, it fails to focus on those repeat violent offenders who truly are a menace.  Instead, it casts a very wide net that would ensnare far too many people who do not deserve maximum sentences.

Under the second proposal, a defendant who was convicted of two prior felonies where he could have been sentenced to more than 10 years must receive the maximum possible sentence upon being convicted of any third felony.  Say what?  Punishment would be based on the possible sentence for past crimes, rather than the crimes themselves?  This is a baffling approach to sentencing policy, not to mention a very poor one.  Like the first proposal, it doesn’t help identify the repeat violent offenders that the bill is said to target.  In the case of nonviolent drug offenders, they would be subject to even longer sentences simply because they already faced lengthy sentences that didn’t make sense in the first place.  Surely we can do better than that.

The Governor’s bill – we’re getting closer.

Gov. Deval Patrick filed his own habitual offender bill, H.41.  In contrast to the wide-open approach of H.434, the Governor’s bill focuses on what a defendant actually did in his or her past.  It lists over 40 serious (although not necessarily violent) offenses which would trigger an habitual offender prosecution.  But the focus ends there.  A defendant who was convicted of two felonies from the list must receive the maximum possible sentence for any third felony.

The Governor’s bill looks a lot like California’s much-debated “three strikes and you’re out” law, passed in 1995.  Under California’s approach to repeat offenders, a defendant who has been convicted of two serious offenses (from a much shorter list than the Governor’s) gets a sentence of 25 years to life for any third felony.  After the law had been in effect for 10 years, the state’s nonpartisan Legislative Analyst’s Office reported on the law’s impact:

• Over one-quarter of California’s bloated prison population consisted of “third strikers”;
• Over half (56%) of them had received harsh third strike sentences as the result of nonviolent offenses, including shoplifting and almost one-quarter (23%) of the third strike offenses were nonviolent drug crimes;
• The number of prisoners age 50 and over had tripled, and the cost of housing an aging inmate was two to three times the cost of an average inmate.

But had the law reduced violent crime?  Or even crime in general?  Surprisingly, there was little consensus among researchers about the impact on public safety.  The crime rate in California – and the rest of the nation – had been declining in the years before the law was enacted, and continued to decline until 2003.  When researchers compared the crime rates between those counties where prosecutors aggressively used the law and counties where it wasn’t often used, there still were no significant differences.

Yet California was paying a big price for its new, possibly ineffective, law.  During the next 10 years, the prison population kept growing and conditions got even worse.  By 2006, Gov. Arnold Schwarzenegger was forced to declare a state of emergency in the prisons, although the state is still fighting a federal court order to reduce its prison population.

Say what you mean to say.

If the Legislature’s goal is to keep dangerous repeat offenders off the streets, then any bill should do just that and no more.  The felonies in question should be spelled out, as the Governor’s bill does, but all three felonies must be from that list.  H.434 in particular would sacrifice far too many people as collateral damage, men and women who pose little threat to public safety.  There must also be alternatives to one-size-fits-all maximum sentences for the third offense, so that the courts can take into consideration the facts of the case, including the defendant’s role.  As California has shown us, it’s a lot harder – and costlier – to untangle a big mess.  Let’s get this right the first time.

Barbara J. Dougan
Massachusetts Project Director
Families Against Mandatory Minimums (FAMM)