From the New York Times, June 18, 2017
Massachusetts Sen. Karen E. Spilka (Left) with members of Teens Leading the Way testify on juvenile justice issues on June 5th, before the Joint Committee on the Judiciary.
Much has been written about the important campaign to raise the age of juvenile court jurisdiction to include 18-, 19-, and 20-year-olds. There are four bills filed by Massachusetts legislators for consideration this session that advocate for this path, easing the state into recognizing a group now called “emerging adults” as worthy of particular attention. One bill, launched by Citizens for Juvenile Justice (CFJJ), Roca, Inc., and United for Teen Equality Center (UTEC), is backed by more than forty organizations: the Juvenile Justice Omnibus Bill (S.947/H.3079). Sen. Karen E Spilka and Rep. Kay Khan are lead sponsors on this. Rep. Evandro Carvalho has filed his own bill to raise the age, H.3037, “An Act to promote better outcomes for young people in the Commonwealth.” Sen. Cynthia Creem is advocating for expanding juvenile court jurisdiction in her bill, S.816.. On June 5th, the Joint Committee on the Judiciary held a public hearing on the bills.
Raising the age makes sense say many experts. Vincent Schiraldi, Senior Research Fellow at the Harvard Kennedy School, in a recent Boston Herald article said, “Many of the important bridges that criminologists believe young people need to cross before they age out of adolescent crime — like completing their education and getting a job — come later for today’s generation of young people and are negatively affected by an adult-level conviction. This is especially true for young African-Americans and Latinos who are incarcerated in Massachusetts at 3.2 and 1.7 times the rate of whites, respectively.”
Lael Chester, also a Research Fellow at the Harvard Kennedy School, testified with Rep. Carvahlo at the June 5th hearing at the State House. She cited brain development which is not complete until the mid-20s or later, and pointed out that research shows how “emerging adults” are developmentally similar to their 16- and 17-year-old peers: impulsive, susceptible to the influence of friends, and risk-takers.
The State House News as reported in the Worcester Telegram & Gazette quoted Chester from a May briefing at the State House as saying “Emerging adults drive a disproportionately large share of the criminal justice system, making up 10 percent of the Massachusetts population but 29 percent of arrests and 23 percent of the state’s incarcerated population.” Chester said “They also have the highest recidivism rates among all age groups: 76 percent of 18- to 24-year-olds released from jail or prison in 2011 were re-arraigned within three years.”
Those who argue in favor of raising the ageof juvenile court jurisdiction also say an overly punitive approach isn’t working and that most young people age out of crime. Research has shown this time and time again.
Lael Chester testifying before the Joint Committee on the Judiciary on June 5th, 2017.
One aspect of the campaign that is not getting enough attention, in my opinion, is why it is so crucial to exclude young children from our court system. As I wrote for Truthout more than two years ago in 2015, “Children as young as 6 can go to court in North Carolina, while four states – Massachusetts, New York, Connecticut and Rhode Island – set the youngest age at 7. Thirty-three states set no age for court involvement, but according to the National Center for Juvenile Justice, that means age 7 is the default, or ‘the youngest age under common law where a child would be considered capable of criminal intent.'”
At the June 5th hearing, retired Juvenile Court Justice Leslie Harris said it most eloquently when he spoke: “I am concerned that we have children in the system who cannot spell the word ‘criminal’ because they are too young.”
Several of the Massachusetts bills (H.3037, H.3078, S.947) would exclude children under 12 from appearing in a courtroom. The actual age number for a child to be considered culpable seems somewhat arbitrary, even among experts. According to Citizens for Juvenile Justice, a 2003 study found that “children ages 11 to 13 demonstrated significantly poorer understanding of trial matters, as well as poorer reasoning and recognition of the relevance of information for a legal defense than did a 14- and 15-year-olds.”
I interviewed Mariame Kaba, the founding director of Project NIA in Chicago, which aims to end youth incarceration, for my Truthout article. She said, “At a certain point, age is irrelevant. We don’t treat children who are Black as children.” The American Psychological Association underscored this issue with its 2014 report that Black boys as young as 10 are more likely than their White peers “to be mistaken as older, perceived as guilty, and face police violence if accused of a crime.”
Arresting kids will never get to the bottom of the problem.”Kids are in conflict with the law because of unmet needs,” wrote Kaba and Dominican University professor Michelle VanNatta in a 2013 report on the state of youth justice. From their findings: Kids who act out may be facing overcrowded school classrooms or have crises in their families; there may be a lack of recreational and after-school activities available; students may be homeless; school resource officers and police patrol schools, often threatening, rather than protecting children.
Some states are beginning to agree that the lower age of juvenile court involvement must be raised as well. In California, there is a presumption that a child under age 14 lacks the understanding of “wrongfulness” and the state “needs clear proof” to rebut that presumption. In Ohio, the courts rarely find competence for a child under age 14, and in the past 30 years in Florida, no child under age 12 has been processed in juvenile court.
Keeping kids out of the justice system is a worthy goal, and experts agree that community based interventions are far more effective and successful in holding a young child accountable for their actions.
We need more justice through education and not through punishment, and this particularly applies to our children.
Please see my newest article on Truthout and share it: “Directly Impacted Youth Are Leading Fights Against Racism and the Criminal Punishment System.” The article features Teens Leading the Way, Assata’s Daughters and more!
Assata’s Daughters canvasses in Chicago in 2016 to get the name of a park changed for Ronald “Ronnieman” Johnson, who was killed by police. (Photo: courtesy Page May, a cofounder of Assata’s Daughters.)
If you’ve been following the fiasco that was the Council of State Governments’ (CSG) attempt to make justice recommendations to Massachusetts leaders, hold on to your hats.
By now you probably know that the result of CSG’s several month stay in the Commonwealth (including a 25 member task force, numerous interviews, fact-checking, data collecting, and expert consultation) was a measly bill filed by the Governor. The ridiculously underwhelming bill claims to curb recidivism, save money, and increase public safety, all noble goals. But frankly, it misses the mark, merely adding some post-release supervision and programming to give prisoners more “good time,” i.e. days off their sentence. Even if these are good ideas, they only tweak what happens after someone goes to prison while ignoring the decision to send them there—and for how long—in the first place.
The bill is symptomatic of much that’s wrong with the Massachusetts justice system which is peopled by many with “good intentions.” Not only is it couched in “progress” and “change” rhetoric without being much of either, it ignores a number of major issues that the public knows are problems—racial inequities in justice practices, the system of bail, mandatory minimums, keeping juveniles out the system, incarceration instead of treatment for drug users, solitary confinement; the lack of compassionate release for elderly and dying prisoners, and lengthy prison sentences that fail to serve safety or humanity. And this is by no means an exhaustive list. But clearly the bill fails to acknowledge what leaders among the formerly incarcerated and others have made clear are better solutions to imprisonment: “alternatives to incarceration, decarceration, and investing in communities.”
If Massachusetts really wants to decarcerate and stop putting so many people in prison, we need to wake up and see who is actually there. And it’s not enough to say we’re better than many other states because we incarcerate at a lower rate. If Massachusetts were a country, as Prison Policy Initiative has pointed out, it would incarcerate at a higher rate than South Africa, the Ukraine, and Iran, just to name a few.
One piece of significant information that has recently come to my attention is that according to a CSG report, shorter sentences in the Massachusetts Department of Correction (DOC) have declined but longer sentences, i.e. LIFE, are on the rise. That means we have more lifers. That also means that the lousy 20% parole rate we have for lifers comes glaringly into focus. Yep, since Paul Treseler took over as Chairman of the state Parole Board in 2015, 80% of our second-degree lifers and those who were once sentenced as juveniles for first-degree murder (See here) are staying in prison, getting older, and coming back again and again to the Parole Board to try for release, only to be denied over and over. I have written about our lifer parole policies before and they aren’t getting better.
Having a large lifer population also means having an elderly population. In 2016, Massachusetts had 761 criminally sentenced prisoners who were more than 60 years old. Let’s not even talk expense, although aging and dying prisoners do cost thousands of dollars more than other incarcerated citizens. The real point, as the Sentencing Project says in its recent report, Still Life: America’s Increasing Use of Life and Long-Term Sentences, is that “It is not ‘tough’ to imprison people long past their proclivity—or even physical ability—to commit crime; to the contrary, it is a poor use of resources that could be put toward prevention.”
Credit: ThinkProgress, AP Photo, Timothy Easley
One of the recommendations by the Coalition for Effective Public Safety (CEPS), included in a ten page letter sent to the Massachusetts leadership after CSG had spent months in the state, could make a difference in the incarceration rate: presumptive parole. Presumptive parole is based on the tested practice that giving prisoners the presumption that they will be released after serving a portion of their sentence actually promotes public safety. As CEPS wrote, presumptive parole can reduce recidivism while promoting safety inside of correctional facilities: “It incentivizes good behavior and engagement in educational, vocational, and rehabilitative programming by creating a sense that parole release is the individual prisoner’s to lose. Having a system of presumptive parole also saves money” —because it saves time spent behind bars, and good supervision on the outside costs $5000 compared to more than $53,000 for a yearly prison stay.
CSG has advocated for presumptive parole in other states such as Michigan where “parole reform could save as much as $30 million a year before the end of this decade…empty[ing] 1,300 prison beds.” But it seems our leadership doesn’t have the will to tackle the process although it makes good safety and good economic sense. At least there is S773, a carefully constructed bill filed by Senator William Brownsberger called “An Act to Expand Sentencing Options” that does advocate for presumptive parole. It includes many caveats for supervision and release that should satisfy the Parole Board. But when Mass. lawmakers recently held a press conference to push for what they called “comprehensive criminal justice reform,” there was no mention of presumptive parole.
The going theory still seems to be that politicians are afraid for their seats if they advocate for those who’ve committed a violent crime. Certainly, these are prisoners who need a second chance. But Massachusetts politicians seem as reluctant as those from other states to support evidence-based practices around lifers. One of the problems says the Sentencing Project is that “growing support for decarceration and proposals for sentencing reforms for low-level offenses are frequently paired with the preservation of harsh penalties for serious and violent crimes.” But this path has shown to not reduce incarceraton. Many who have committed violent crimes have changed—if only we have the eyes to see.
As of 2016, per the Sentencing Project report, “There were 161,957 people serving life sentences, or 1 of every 9 people in prison. An additional 44,311 individuals are serving ‘virtual life’ [sentences of 50+ years] yielding…206,268 – or 1 of every 7 people in prison.” Nationally, nearly half of life and virtual life-sentenced men and women are African-American, equal to 1 in 5 Black prisoners overall.
In Massachusetts, we beat the average: we have 1 out of every 4 people in prison or a 23.2% rate of incarcerating those sentenced for life crimes. In fact, we have the 5th highest rate in the country, with Louisiana, Utah, California, and Alabama being the only states with higher rates of imprisoning this population.
A reason we have so many serving life sentences, said attorney Leslie Walker, Executive Director of Prisoners’ Legal Services of Massachusetts is “the high failure rate of insanity defenses. District attorneys tend to belittle evidence of serious mental illness [schitzophrenia, psychosis, bipolar etc]. Then there tends to be a battle of the experts.” In other words, we have the forensic psychiatrists on opposite sides battling each other.
A 2016 Mass. DOC report on Prison Population Trends 2015 noted that 971 out of our 10,500 incarcerated men and women are sentenced to second-degree life, and 1035 to first-degree life, or life without parole eligibility. In other words, with a first-degree sentence, they will never be released, and with second-degree life, they have a shot at parole.
According to attorney Patty Garin, adjunct professor at Northeastern University School of Law, who supervises law students representing lifers at Parole Board hearings, the reasons why we have more prisoners serving life without parole are important. “We have gotten more and more punitive as a society,” she said in a phone interview. She added, “In the past, prosecutors were more often willing to believe that persons should be given parole eligible life sentences so that they could earn a second chance. Presently, prosecutors’ charging decisions are often driven by politics and a misguided belief that they should always be seeking the longest sentence possible.”
Garin also pointed out that a wealth of studies have shown people serving life sentences are the best bets for parole. She said, “By and large, these are people who have transformed themselves in prison. We ignore the fact that second-degree lifers have the lowest recidivism rate of all prisoners.”
Karter Reed, who is currently on parole for life with a second-degree murder conviction, is an example of how many lifers commit to making their future meaningful in spite of the barriers that come with prison—Karter served 20 years beginning at age 16. He pointed out in a phone interview how Massachusetts used to deal more reasonably with many first-degree murder charges or life without parole (LWOP) convictions. Commutation was a tool used by governors before 1987, before Governor William Weld, i.e. the “Let’s reintroduce prisoners to the joy of busting rocks” Weld. According to a study by Gordon Haas (Norfolk Lifers Group) and Lloyd Fillion (Criminal Justice Policy Coalition), “Thirty-seven persons serving LWOP sentences had their sentences commuted between 1972 and 1987; another four LWOP sentences were commuted after 1987.” The Norfolk Lifers Group determined that none of those 41 parolees was returned to prison for committing another murder.
In their report, the Sentencing Project suggests clemency as one of the ways to help balance the scales, as well as the idea of allowing judges to reconsider sentences after a period of time. These are also good ideas. But basically, in Massachusetts, we need to stop pretending we are creating change with teeny tiny steps. The fact that the state is not tackling many of the hard issues cannot help but be related to why we have more people with life sentences than 40+ other states. Proof that so many in power who are politically driven at the expense of justice? Ladies and gentlemen, I give you the governor’s bill.
Robert King (left) and Albert Woodfox at Harvard Law School on March 8th
If you want to get perspective on your life, I suggest you spend an evening listening to Albert Woodfox and Robert King.
Woodfox, who spent 43 years and 10 months in solitary confinement, and King, who spent 29 years in solitary, were two of the Angola Three housed at the notorious Angola Penitentiary (formerly Angola Plantation) in Louisiana. The third member, Herman Wallace,died in 2013, days after being released.
Certainly you can read about them. Just this year, the New Yorker had an amazing piece on Woodfox. But hearing them speak, and feeling the hope still in their hearts is enough to make most of us think twice about not getting to work on time, missing a party, or gaining a few pounds.
Most amazing is not just that they found ways to make their lives have meaning while thrown into one of the worst prisons in the country. Housed in solitary, the men said specifically because of their beliefs as Black Panthers, they found ways to educate themselves and others. They were eloquent as they spoke about their experiences and the power of organizing for racial and economic justice.
King said his political education started on the tiers where, at the time, they had solitary cells with some bars instead of what is common today, closed door rooms. Helping others, King and Woodfox found ways to “talk and shout down the tier, give each other magazines, and educate some of the men to read and write.”Reading Marching to a Different Drummer, King realized that one person could make a difference. He said, “I learned about my innate capacities and my sense of goodness.”
Woodfox said that he would like to be remembered not just for being in solitary, but for the work he has done which others have called “modelling a moral code.” He spoke at length about prisons as a place where slavery clearly exists. For example, he said that the guards “fed us in a manner they fed dogs.” The men worked to change this at Angola and did. They went on a 45 day food strike and drank water only. The point was to get their food put on a tray on a little shelf in a way the men felt was respectful. They achieved that goal. They also stopped what Woodfox called “sexual slavery” in the prison.
Woodfox said that solitary confinement is an “unnecessary evil which exists because society sanctions it,” King added, “You do not have to violate a law in prison to get put in solitary.” Both men felt their political affiliation and their teaching about politics were the reasons they were put in solitary. “I still have claustrophobia and panic attacks,” said King.
What kept them both alive is that they joined the struggle against mass incarceration and for freedom. “Humanity is worth any sacrifce,” said Woodfox, speaking of his love for people. He added, “Freedom is a state of mind…You can never define yourself by the system that tried to oppress you.”
Many questions came to the two men about how they maintained their mental sanity while incarcerated and how they kept up the fight in such discouraging conditions. Woodfox answered this way: “If you don’t fight at all, you are sure to lose, but if you fight back, and join with others, you might win.”
A good lesson for the age of Trump, and a clarion call to end solitary confinement.