Our Senate “Report Card” on the Criminal Justice Reform Bill

TL;DR: Look at the scorecard yourself here. Take action here.

In the wee hours of Oct. 27, the State Senate passed a historic Criminal Justice Reform bill 27 to 10. Although four Democrats–Eileen Donoghue, Anne Gobi, Kathleen O’Conor Ives, and Mike Rush–joined the Senate’s six Republicans in voting NO, Senate Democrats still achieved the magic number of 27, the number necessary to override a veto from Governor Charlie Baker.

Progressives fought hard and were able to get a number of big wins. But DAs and police departments also fought hard against true reform (and won some things too). They will be fighting hard again as the House prepares to vote. So should we.

CJR Roll Calls

The Senate considered 163 amendments to the underlying reform bill. Many were adopted or rejected by voice vote, or simply withdrawn. But those which were roll called offer a great window into whether legislators are fighting for progressive values or not. When the question “Whose side are you on?” gets asked, you can see how they respond.

As we have described before, roll call votes on amendments are the only record of an individual legislator’s vote. In taking the measure of your legislator, these are the tools before us, and the limitations are obvious: when not all votes are individually recorded (voice vote/not roll called), the picture will be skewed by what roll calls we DO have. The question as to why the Legislature does not routinely take roll calls is an important one, and it gets to issues of transparency and individual voters’ ability to hold legislators accountable to their votes. There were some terrible provisions that passed (or failed) only on voice vote. There were some good ones that passed (or failed) only on voice vote, too. We can’t tell you how your legislator voted on them because we don’t have the record. (But you could ask!).

Methodology

In our CJR Report Card, we scored 17 amendments and the vote on the final bill. We did not include amendments with unanimous or nearly unanimous votes without a real stand for progressive values or against misguided “tough on crime” fear-mongering.

Overview of Results

Five senators consistently voted to keep a strong bill intact and further improve it: Joe Boncore, Sonia Chang-Diaz, Cindy Creem, Jamie Eldridge, and Pat Jehlen. If you live in their district, you should thank them. (If you don’t, tell your own Senator how much you appreciate their leadership!)

Following them were a dozen Democrats with (mostly) As or (some) Bs: Mike Barrett, Will Brownsberger, Majority Leader Harriette Chandler, Julian Cyr, Sal DiDomenico, Linda Dorcena Forry, Cindy Friedman, Adam Hinds, Jason Lewis, Tom McGee, Senate President Stan Rosenberg, and Ways & Means Chair Karen Spilka. They almost always held the line and should be thanked as well.

Like the Senate’s six Republicans, eleven Democrats worked hard for their F, voting for the progressive position less than half the time: Michael Brady, Eileen Donoghue, Anne Gobi, Joan Lovely, Michael Moore, Kathleen O’Connor Ives, Marc Pacheco, Michael Rodrigues, Mike Rush, Walter Timilty, and James Welch. That said, Brady, Lovely, Moore, Rodrigues, Timilty, and Welch still voted for the final bill (unlike Rush, Gobi, O’Connor Ives, and Donoghue–Pacheco was absent) and deserve your thanks for that.

And, though several Senators (many of whom have been backed by progressive forces in their elections and have cited their liberal cred when it’s easy and useful) were disappointing in their failure to stand up at critical junctures, ultimately, it is a testament to the Senate leadership as well as the work of advocates (like YOU) that efforts to roll back the progress in the bill were defeated

So what actually happened in all those amendments?

Protecting the Progress of the Bill

The Senate defeated attempts to weaken or eliminate key parts of the bill, such as the following:

Raising the felony larceny threshold: In Massachusetts, the current threshold at which larceny (or theft) becomes a felony, rather than a misdemeanor, is a very low $250 (third lowest in the country)—in other words, less than the cost of an iPhone. This threshold was set at $100 in the 1800s, and it wasn’t raised until 1987. But if the felony threshold had kept up with inflation, today it would be well over $2,000. An unnaturally low felony threshold means that more people are subject to prison time for theft of a Yeti soft cooler.

Since 2000, 37 states have raised their felony larceny threshold, and property crime has not risen as a result. The Senate bill raises the threshold to $1,500—the same as Rhode Island’s.

Senator Bruce Tarr attempted to reduce this to $1,000, and the amendment was voted down 15 to 22 (Scorecard 1s).

Curbing the school-to-prison pipeline: The Senate bill, removes disrupting a school assembly as an arrestable offense. To quote Senator Pat Jehlen: “Routine school discipline used to be handled inside a school.” When police get involved, they can often end up escalating a situation, with traumatic consequences for students in their formative years.Senator Bruce Tarr’s amendment sought to retain “school assembly disruption” as an arrestable offense, and his amendment was voted down 11 to 27 (Scorecard 6s).

Eliminating mandatory minimums for some nonviolent drug offenses: Mandatory minimum sentences remove judicial discretion in sentencing and treat every offender with the same blunt instrument, regardless of context. Mandatory minimums have succeeded spectacularly at fueling mass incarceration, but do not reduce crime. We should applaud the Senate for beating back many of the efforts to reinstate this failed policy–but some votes were much too close for comfort, and a few wrong-headed amendments did, embarrassingly, pass (more on that shortly).

70% of prisoners held under the Massachusetts Department of Correction for a drug offense were sentenced under mandatory minimum statutes, at great economic cost to the state and social cost to communities. Even if they are not applied, prosecutors use the threat of mandatory minimums to coerce individuals into confessing to crimes they did not commit. Our neighbor Rhode Island repealed mandatory minimums for drug-related crimes back in 2009: both the prison population and violent crime fell afterwards.

Republican Minority Leader Bruce Tarr made two attempts to strengthen/restore mandatory minimums relating to non-violent cocaine offenses, but both failed, albeit somewhat narrowly, with votes of 18 to 19 (Scorecard 7s) and 17 to 21 (Scorecard 8s). At least 10 Democrats joined in each effort to undo the progress of the bill.

Tarr also sought to restore mandatory minimums for selling drugs in a school zone. The idea of stricter rules around school might make sense at first (“of COURSE we should extra penalize selling drugs to kids!”–can you see the attack mailer now?)–until you think it through. The 1,000-foot school zone distance is absurd in practice and ends up penalizing just whom you’d expect: black and brown communities, part and parcel of the racist machinery of our criminal justice system that we need to dismantle. But if that isn’t sufficient enough rationale, as Senator Will Brownsberger noted on the Senate floor, a review of cases of selling drugs in a school zone turned up no such cases of selling to minors. The geographic distinction is arbitrary and outdated, and it disproportionately, negatively affects communities of color. Tarr’s amendment failed 15 to 23, with 9 Democrats joining to support this ill-conceived, regressive, fear-mongering pander (Scorecard 9s).

Granting testimonial privilege to the parent-child relationship: Massachusetts law forbids minors from testifying against their parents in a criminal matter, under most circumstances, acknowledging the long-term and irreparable damage it could cause to the parent-child relationship. The Senate bill, also recognizing the personal and community importance of the parent-child relationship, simply codifies the logical inverse. Granting this testimonial privilege to parents means they cannot testify against their minor children. Minor children should be able to to communicate with parents without fearing that those conversations could be held against them in court.

Republican Minority Leader Bruce Tarr sought to strike this provision. His amendment failed 18 to 20; a dozen Democrats joined the Republican caucus in this regressive, and frankly cruel, effort (Scorecard 10s).

Raising the age of criminal majority from 18 to 19: Under current law, 18 year-olds–often seniors in high school–are tried as adults; the Senate bill changes the age of criminal majority (that is, when you get tried as an adult) from the 18th to the 19th birthday. Ample research shows that teenage offenders served by a juvenile system are much less likely to re-offend and more likely to successfully transition to adulthood., Teenagers in a juvenile system have access to greater educational and counseling services, and they’re much less likely to face sexual assault than at an adult facility.

Senator Michael Moore  sought to strike this from the bill, but his amendment was voted down by a too close 17 to 20. 10 other Democrats (along with all 6 Republicans) joined him in this regressive effort (Scorecard 12s).

Sealing convictions for resisting arrest: The Senate bill allows individuals to seal felony records after five years and misdemeanors after three, and allows the crime of resisting arrest to be sealed. As Senator Will Brownsberger explained during the Senate debate, “resisting arrest” is a fairly common charge–and, it is often abused.

Arrest records can create significant obstacles for people to re-integrate as productive members of their community, as persons with records can face discrimination when seeking employment. It clearly makes no sense to seal the offense for which someone was arrested, but not the arrest  Like so many other of these amendments, the motivation almost seems arbitrarily vengeful, not like sound policy to rehabilitate offenders or repair communities.

Republican Minority Leader Bruce Tarr sought to strike this provision, but his amendment failed 8 to 28 (Scorecard 17s).

Defeating New Mandatory Minimums, Harsher Penalties, and the Morality Police

The Senate also defeated several efforts by Republicans (aided by some Democrats) to create new and/or stronger mandatory minimums and other penalties, aiming to undermine the purpose of the bill. Minority Leader Bruce Tarr’s attempt to create new mandatory minimums for drunk driving failed 14 to 23 (Scorecard 2s). Some senators seemed stuck in the worst old thinking of the failed “war on drugs”.  9 Senators, for instance, voted for Sen. Patrick O’Connor’s amendment expanding mandatory minimums for fentanyl (reducing the quantity to trigger the minimums) and broadening mandatory minimums to any Class A drug (Scorecard 11s). And 15 supported Sen. O’Connor’s proposed new mandatory minimum for carfentanil trafficking (22 opposed) (Scorecard 13s). O’Connor sought to empower DAs to charge sexting teenagers with felonies for child pornography failed on a (too) narrow 18-19 vote: a dozen Democrats joined this reactionary move (Scorecard 26s).

A Civil Liberties Win and a Civil Liberties Loss

O’Connor also sought a broad expansion of the state’s wiretapping laws. This “unprecedented power-grab” (ACLU) would have granted DAs power to surveill electronic communications and to use their surveillance tools to investigate small offenses with no connection to organized crime, like petty drug distribution. The amendment went down 14 to 23 in a win for civil liberties (Scorecard 15s).

Although there were many great wins for civil liberties, and civil rights, there were a few very low moments. They should remind us of the need to stay vigilant and organized–and to not underestimate the persuasive power of the opponents to reform, or legislators’ willingness to pander to bad legislation that “looks” good.

Most notable among roll called votes was Bruce Tarr’s “Blue Lives Matter” amendment. Relying on a pernicious, racist narrative of a “war on cops” which is belied by statistics, this vote would establish a new mandatory minimum for assaulting a police officer. Disguised behind seemingly simple “We support our police” sentiments, these policies are often used to defame, deter, and suppress Black Lives Matter activists and others resisting or victimized by police brutality. Or, to be honest, activists in support of any progressive cause. We do not have to draw a special circle around our officers to value their role in our communities. A special law just for them contributes to the right-wing complex that says cops are persecuted victims in need of extra protection.

The amendment first passed on a 22 to 15 vote (Scorecard 3s), with 16 Democrats joining Republicans in voting for it. But then even more Democrats wanted to vote for it, so there was a revote. The amendment then passed 31 to 6 (Scorecard 4s).

Giving People a Second Chance

The Senate bill repeals various mandatory minimum sentences. Should a person serving a mandatory minimum sentence for a crime for which the mandatory minimum be repealed have to serve the full term? The cause of justice clearly says no. If we no longer believe that full sentence to be wise or just, we should not be doing more damage to individuals, communities, or state budgets by forcing someone to serve it in full.

Cindy Creem’s amendment to allow such prisoners to be eligible for good conduct credits earned on and after the effective date of the law passed 25 to 13 (Scorecard 5s). By contrast, Tarr’s amendment to require individuals in prison for a mandatory minimum sentence that has since been repealed to serve the full term of the sentence rightly failed 13 to 24 (Scorecard 14s).

It’s Not Over

The bill now moves to the House, with votes expected between November 13th and 15th. In other words, the time to take action is now.