Criminal Law Blog Essay

Criminal Justice Reform Starts and Ends with the States

Criminal justice reform has the attention of the country, but it is at the state and local level where reform will be implemented.

Much of the conversation about criminal justice reform has revolved around high-profile incidents in major U.S. cities like Cleveland and New York City — and on what the federal Department of Justice can do in response. But state and local officials are responsible for 90 percent of the prison population.

Most observers agree that our federal and state prisons have a mass incarceration problem: too many people are locked up for minor offenses and too large a proportion of those behind bars are people of color, both of which point to inherent biases in our criminal justice system.

Many local factors influence who goes to prison and why, from the number of public defenders available to serve the accused to the number of clinic beds available for drug addicts who need treatment instead of jail time.

These are some of the reasons why I continue to advocate for increased funding for local legal aid and measures to combat our opioid epidemic as a State Senator.

States are the traditional “laboratories of democracy,” the places where new ideas and approaches can be experimented with despite political paralysis in Washington. State governments have considerable latitude to direct their own policymaking and, if successful, provide models for national policies.

Reforming Criminal Justice

In October, the Massachusetts State Senate passed a comprehensive criminal justice reform bill which tackled a host of issues, including excessive bail, mandatory minimums, and solitary confinement sentencing. The Massachusetts House passed its own version in November, and the two bodies are now negotiating a final version to present to Governor Charlie Baker.

Because low-income offenders are often jailed due to their inability to pay criminal fines, the Senate bill lowered the fee brackets on a number of offenses.

The Senate bill also reduced or removed a number of mandatory minimum sentences on drug offenses, allowing judges greater discretion in assigning jail time or other deterrents such as community service hours.

Additionally, the Senate bill limited the use of solitary confinement in recognition of the fact that it can be harmful to inmates’ mental health and can exacerbate already existing mental disorders.

Indeed, any attempt at criminal justice reform must reckon with the realities and inadequacies of our mental health care system — another realm that is largely under local control.

There is a constellation of state agencies and organizations that are outside the justice system but can have substantial impacts on it — and on how effective reform can be. These include state departments of health, education, and child services, as well as community organizations like Boys and Girls Clubs and homeless shelters. All of these provide services that keep people, especially young people, from turning to criminal activities. They can also help formerly incarcerated people transition back into civilian life.

Focusing on the Right Things

One of the more significant pieces of the criminal justice reform package passed by the Massachusetts Senate was the emphasis on treating drug addictions instead of criminalizing them.

Sixty-eight percent of individuals in local jails have a substance abuse disorder. In response, the bill expands drug diversion programming, requires the examination of prisoners for drug dependency and whether medication-assisted treatment is appropriate, and establishes a pilot program within select state prisons to evaluate inmates’ access to appropriate treatment for opioid addictions.

Sending these people to prisons instead of treatment centers creates a vicious cycle of unmonitored drug use, inevitable hospital visits, and short-term jail sentences that do nothing to cure addictions or curb criminal behavior — a revolving prison door.

Working with (and Against) the Federal Government

Of course, state and local governments are also the primary entities that can implement federal regulations and recommendations regarding most law enforcement, since the federal government does not control local police forces.

In December 2014, President Obama created the Task Force on 21st Century Policing to identify and share policy recommendations with state and local leaders. The goal was to improve police-community relations and make crime prevention efforts as effective — and fair — as possible.

The Task Force’s recommendations included strategies to achieve more diversity in police forces, expand civilian oversight of law enforcement and prohibit racial profiling in policing, all of which Massachusetts can and should do more to act on.

I’m proud that, in the Massachusetts Senate, we included in our criminal justice reform legislation a requirement that law enforcement train officers in bias-free policing and de-escalation techniques, one major recommendation of the Task Force.

The federal government can give states an incentive to follow its policy recommendations through the use of federal grants, and the Justice Department under President Obama backed up the Task Force’s recommendations with $100 million in grants to state and local police departments.

On the other hand, the states are also a bulwark against federal encroachment and overreach. While the states are responsible for implementing federal policies, they can also limit federal influence where they see state law taking precedence.

In our federal system of government, the residual power not included in the Constitution rests with the states, not with the Federal government. In the absence of a specific federal question, state law prevails.

This tremendous power can be used on behalf of defendants, as we have seen with California’s “sanctuary state” law shielding immigrants by limiting how state and local law enforcement cooperate with federal Immigration and Customs Enforcement. Or it can be used to increase the state’s own authority, as with Florida’s alleged subversion of medical marijuana dispensaries approved by voters in 2016.

Our Framers designed a system that would put the states themselves, and the three branches of the federal government, in competition with one another. Through that competition between the Judiciary and the Presidency, the Congress and the state legislatures, the governors and the judges, the Framers believed that two things would happen. First, freedom would be protected because no single authority would become absolute. Second, just like competition in the free market economy, competition between states, and between the three branches, would allow the best ideas to bubble to the surface while continuously being refined and improved.

When it comes to criminal justice reform, those ideas are being developed and implemented at the state level, whether or not they receive support from the Congress or the Executive Branch.

This system does not work perfectly, and the institutions that make it possible are under strain. But even in this challenging political environment, we’ve seen the Founders’ vision play out in virtually every sector of American life. And here in Massachusetts, we are taking the necessary steps to bring balance to our criminal justice system and bring the focus back to prevention and restoration.