It’s been a challenging month in Massachusetts, if you care about meaningful opportunities for prisoners to change. While there was the wonderful passage (finally) of the anti-shackling bill, and the history-making juvenile lifer bids for release (which I will be writing more about at a later date), there was also the recent Legislative Judicial Committee hearing on a truly wrong-headed bill insisting that juveniles who who commit homicide should have to serve thirty-five years before parole. That bill goes against prevailing trends across the country as I wrote about in “Massachusetts Legislature: Don’t Set Back the Clock” which appeared here, on Truthout, and with a Texas-style twist, at The Rag Blog.

It is hard to imagine that another disaster-in-the-making would come down the pike so quickly. But on Wednesday, May 28, the Judiciary Committee heard H4084, “An Act relative to limiting recurring parole hearings for persons convicted of second degree murder.” While the Massachusetts Parole Board can currently make potential parolees wait five years if they receive a No vote from the Board (i.e. get a setback) this bill would insist that they wait 10 years in between hearings. In order to receive parole under any circumstance a parolee would still need to receive positive votes from 2/3 of the Parole Board members.

Research across the U.S. shows that those behind bars thrive on hope. Many work to change their attitudes through self-reflection, programming, and hard work, and even more so, when they have the hope of early release. For lifers this is particularly significant because they do so much time in prison before eligibility. A five-year setback is a long time, but it is not out of line with national standards. But hope for a meaningful chance for parole—not automatic release but opportunity— is certainly part of what motivates prisoners and what the newest parole proposal lacks.

Backed by Rep. Garrett J. Bradley (Hingham), H4084 if enacted, would be called “Leslie’s Law” in reference to the murder of Leslie Haynes who was tragically killed at age twenty. Bradley wants to stop what he feels is the “reoccurring nightmare every five years” for families and friends of loved ones who were murder victims. This is not to say that advocates who oppose this bill have no sympathy for families like the Haynes family of Hingham whose daughter and sister, Leslie, was killed. Nothing can replace such a loss or ease such pain.

But it is to say, as noted parole expert and Attorney Patricia Garin pointed out, representing the Coalition for Effective Public Safety at the hearing, that there are many ways victims can offer their opposition without actually attending hearings. Garin also pointed out that there is really not a “tradeoff” here. Victims’ advocates can read letters at hearings from people who feel it is too difficult to attend. When Representative Christopher Markey (Dartmouth), House Vice-Chair, asked Garin if it might be a good idea to give the Board discretion to go up to 10 years for a setback but not require it, she said that in 1996 when the 5 year setback was established, it became the setback most commonly used by the Parole Board. This would certainly happen with a 10 year setback. She also stated here was no support anywhere in the literature for a this kind of paroling policy.

Patricia Garin and Max Stern testifying at the Judiciary Committee.

Max D. Stern, also a partner at Stern, Shapiro, Weissberg & Garin LLP, represented the Massachusetts Association Committee of Defense Lawyers as he testified against the bill. He made the excellent point that this bill would actually be a sentencing tool. It would conflate 1st and 2nd-degree murders, making them “almost equivalent” adding to the length of time behind bars. Since the intended purpose of the Parole Board is not to sentence people but to judge their behavior in prison and their growth, this could be problematic. Plus, judges currently have the ability to sentence 2nd degree murder defendants anywhere from 15-25 years before parole eligibility. In other words, they have latitude already. If someone who was sentenced to 25 years came up for parole and was denied, they then would have to wait 10 more years. Since most applicants are turned down the first time they come up for parole, the Parole Board would edge closer to being a sentencing body. Said Stern, in his opinion, “2nd degree murder pleas would become extinct.”

Committee Chair, Sen. William Brownsberger (Belmont) seemed interested to see the science from Stern and Garin. He might begin with the fact that lifers are rearrested much less than all other prisoners. As I wrote in Boston Magazine in 2013, “the best case for parole actually comes from those who have committed some of the worst crimes. According to a 2009 study by the Michigan-based Citizens Alliance on Prisons and Public Spending, parolees originally convicted of homicide re-offended the least of all groups of ex-prisoners. Of 2,558 homicide parolees in that state, only 2.7 percent were returned to prison for any new crime, and only 0.5 percent were returned for another homicide. Other states have observed similar trends.”

Joel Thompson of Prisoners Legal Services (PLS), and a Harvard student from the Prison Legal Assistance Project also testified against the bill, as did Susan Tordella of Toastmasters, a volunteer group that goes behind bars.

Massachusetts is just beginning to come back from low paroling rates which hinder public safety, increase over-crowding, and are exorbitantly expensive for taxpayers. Not to mention that correction officers do not want to work in overcrowded prisons with people who feel despair. According to a White Paper on Parole written by Garin and attorneys at PLS in 2013: “The U.S. Department of Justice’s National Institute of Corrections (NIC) and the Pew Center on the States recognize that success increases and, accordingly, recidivism rates decrease” when Parole Boards motivate prisoners and parolees to change.

Massachusetts need not make another backwards criminal justice move—away from what is proven good policy, the national trend, and certainly, the right thing to do.

This past Wednesday, May 14, while many in Massachusetts were preparing for hockey playoffs, or celebrating graduations from college, or merely enjoying the first breaths of spring, tragedy was front and center at the Massachusetts State House.

Barbara Kaban (left), Committee for Public Council Services (CPCS) and Tina Chery, Founder of the Louis D. Brown Peace Institute in Boston.

There, advocates, victims, elected representatives and officials came to testify about what to do with our juveniles who commit homicide—and although this is relatively rare, only twenty over the past thirty years said forensic child psychologist Richard Barnum in his written testimony—it is so awful to lose a loved one to murder that the outcry was understandable. Families who had experienced such losses spoke eloquently: “I dread Mother’s Day, a reminder of the day my mother was killed,” and “There is no parole from my loss.”

But Massachusetts is in for some difficult years of litigation if it follows the path of Senate Minority Leader Bruce Tarr who filed a bill setting a minimum of thirty-five years before any juvenile convicted of first-degree murder would be eligible for parole. This was in response to legislation passed this year in Massachusetts that ended the practice of life without parole for juveniles. The bill, S2008, would also set almost impossible standards for our Parole Board to consider such a youth rehabilitated—a potential minefield since the current Parole Board’s release rate has taken a nose dive, some would say, in response to public pressure. In Tarr’s bill, the Board gets no direction to consider factors such as what a prisoner has achieved behind bars, one of the most important principles in determining if someone is ready to be released on parole. The bill is overly harsh.

So why would this bill get us into trouble? Let’s go with legal issues first. In 2012 the U.S. Supreme Court ruled that across the country, juvenile life without parole could no longer be a mandatory sentence for youth convicted of first-degree murder, and declared that science had shown us that juveniles were different from adults. Such knowledge needed to be considered at sentencing. In 2013, Massachusetts went further, and as Barbara Kaban, Director of Juvenile Appeals at CPCS, said in her testimony, the Massachusetts Supreme Judicial Court (SJC) “determined that any death-in-prison sentence for a juvenile is disproportionate punishment in violation of the Massachusetts constitutional prohibition against cruel or unusual punishment.” Such juveniles need to have a meaningful chance at rehabilitation.

Tarr’s bill, gaining momentum after a grisly murder in Essex last year, aims to consider families, he said in his testimony before the Judiciary Committee. But if we do not put a stop to the idea of thirty-five years before parole, Massachusetts could face what Connecticut is facing. A former Justice of Connecticut’s top court, David M. Borden, wrote in an op-ed that his state had on the books a bill that would put it in compliance with the U.S. Supreme Court decisions. The House had passed it in full. He warned that without its passage in the Senate, they’d have “years of expensive and unpredictable litigation” and uncertainty for victims. The Senate let it die without a vote. Many of those in Massachusetts who submitted written testimony against Tarr’s bill cited that endless litigation over legal issues was a definite possibility because S2008 and another bill equally probematic, H.1426, do not seem to honor the spirit of the U.S. Supreme Court decision.

That list of written testimony against these bills was long, and included heavy-hitters such as attorney Bryan Stevenson, who represented the young people in the now-famous 2012 U.S. Supreme Court case I mention above, Miller v. Alabama. It included testimony from a number of youth-centered organizations that have experience with kids and have seen them grow and change; it included a former prisoner who had transformed his life, medical specialists, a former head of the Parole Board, judges, lawyers and youth advocates, as well as CPCS.

Most impressive was Tina Chery. Chery’s son, Louis D. Brown was murdered in 1994, and since that time, she has dedicated her life to helping address community violence.

Tina Chery’s son, Louis D. Brown.

Chery said that there are always two families to consider, the family of the one who was killed and the one whose child wielded the weapon. She said that families preparing to send a loved one to prison find themselves in a similar situation to the families of victims, but rarely receive the help they need to prevent future crimes. “Juveniles must be given meaningful opportunity to change,” she concluded, “and thirty-five years is not a meaningful opportunity.”

To that end, the bill seems based on the idea that juveniles cannot change. Joshua Rovner, State Advocacy Associate at the Washington DC-based Sentencing Project, in a telephone interview, said “A good bill gives an opportunity for individualizing cases and gives a Parole Board the opportunity to show rehabilitation. Opportunity for parole is not release.” He also pointed to Tarr and other members of the Legislature’s demand for thirty-five years before parole eligibility as “mis-characterizing” the requirements in the Supreme Court decision. While the Supreme Court called for individualized sentencing, Tarr’s bill rejects that, said Rovner, almost as if individualized sentencing somehow meant brevity.

Massachusetts should not have a knee-jerk reaction to this incredibly important subject (See Cinelli.) All too often we have made law based on our emotional reactions to tragedy. We should not make law based on emotion rather than on science. While the D.A. of Essex County and the president of the Massachusetts District Attorneys Association, Jonathan Blodgett, was one of the first to testify, he came armed with fury from the recent tragic killing in his county. While the horror his community felt at teacher Colleen Ritzer’s murder was justified, some of his claims were not. He said that brain science is an “evolving science…a very slippery slope.” But certainly, this sounded like the dispute over climate change, and scientists who have spent their lives studying the brain would sharply disagree with Blodgett. For years we have known that juveniles are not adults developmentally, emotionally, and psychologically. Researchers such as clinical scientist, Antoinette Kavanaugh, say adolescent development based on neuroscience shows that kids are different from adults. She insists that techniques like Functional Magnetic Resonance Imagining that are used in brain research are not “new” or “evolving.” The evidence is there and not going away.

So how do we get out of this mess? We might take our lead from other states that are using this as an opportunity to think more deeply about juvenile justice and not react precipitously. Rovner pointed out that twenty-eight states including Massachusetts were affected by the Miller ruling; eight states plus DC had previously banned juvenile life without parole (JLWP), and interestingly this includes Montana, Texas, and Kansas—i.e. not a blue/red divison; fourteen states had allowed JLWP.  But not all used it, including New York, Maine, and Rhode Island. Rovner said it is also not uncommon for states to seek retroactivity so that those already serving first-degree sentences can come up for parole hearings—Massachusetts has 63 such cases.  Texas, Illinois, Nebraska, Iowa, and Mississippi all have sought relief for prisoners already sentenced, i.e. retroactivity.

West Virginia has a law that we might turn to for guidance. When a sentence is issued to a juvenile convicted of life, the Court must consider what are called the “Kagan factors,” based on what Supreme Court Justice Elena Kagan said during the famed Miller v Alabama hearing: “(1) Age at the time of the offense; (2) Impetuosity; (3) Family and community environment; (4) Ability to appreciate the risks and consequences of the conduct; (5) Intellectual capacity; (6) The outcomes of a comprehensive mental health evaluation…; (7) Peer or familial pressure; (8) Level of participation in the offense; (9) Ability to participate meaningfully in his or her defense; (10) Capacity for rehabilitation; (11) School records and special education evaluations; (12) Trauma history; (13) Faith and community involvement; (14) Involvement in the child welfare system; and (15) Any other mitigating factor or circumstances.”

And in West Virginia, prisoners sentenced as youth are allowed meaningful chance at rehabilitation and parole eligibility after fifteen years.

The Statehouse News reported that Gov. Deval Patrick had filed his own bill with a twenty-year minimum before parole consideration. This is better than thirty-five years but it still seems to play into the idea that children are similar to adults. Bob Gittens, a former prosecutor, Department of Youth Services commissioner, and Parole Board chair under Gov. Michael Dukakis, testified at the hearing that he fears for an “institutionalization” of children who go into adult prisons, making it more difficult for them to change, and he believes that our parole policy should not be “a one size fits all.” He is concerned about juveniles serving twenty or twenty-five years. “Sooner than later” was his advice.

Gail Garinger, the child advocate for the Commonwealth and a former juvenile judge left the Judiciary Committee with four factors to consider as they deliberated on how to proceed:
*Respect gravity of the offense;
*Public safety: her experience has convinced her that most juveniles can mature into good citizens;
*Regarding the capacity of young people to grow, mature and change, she said, “We cannot give a broad brush stroke to murder and cannot enact a law that only responds to the most horrific acts;”
*Costs associated with incarceration.

Striking the right balance is difficult but Garinger said she thinks fifteen years is the right balance to start seeking parole. She also urged that first degree murder jurisdiction for juveniles be returned to the juvenile court.

And certainly, that’s another important story.

Many wonderful articles are appearing about mothers in prison as we approach this Mother’s Day, May 11th.

Photo courtesy of www.carbonatedtv.com

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Nancy Mullane, on the blog she co-founded, The Life of the Law, interviews
Veronica Martinez at Folsom Women’s Prison in California, which you can listen to or read to see how she was shackled during birth and had to give up her baby after three days—luckily to her family; but Martinez also points out the amazing support of the other women in the jail where she was at the time:

“My bunkie had a collage of babies pasted. She had pasted it with toothpaste, cause that’s what we used. In the county jail, you don’t have tape or glue or any of that so she took toothpaste and she pasted all these pictures of cutout magazines and baby feet and babies and stuff. And she made a little sign, ‘It’s a Girl’ on my bunk.” Martinez, like so many women echoed this sentiment about the cohort of women behind bars: “Everybody comes together in stuff like that cause women, we do understand. It’s not an easy thing to just give up your baby like that.”

Rachel Roth, activist and reproduction rights expert, wrote on the blog, Mom’s Rising, “Just in Time for Mother’s Day, Minnesota Bill Against Shackling Pregnant Women Heads to Governor.” Roth pointed out that Minnesota becomes one of nineteen states that now have “some type of statute limiting the situations in which a pregnant woman can be shackled.”

Deborah Jiang Stein who was born in prison to a pregnant incarcerated and addicted mother wrote her story in Prison Baby. She knows first-hand how, instead of prison, addicted mothers need “family support, community health care, wellness alternatives, and access to community resources,” for what Jiang Stein calls “a positive path to wholeness, health and full citizenship.” She presents facts on her website The unPrison Project, and they are compelling, although she doesn’t site where the stats come from. While I have heard 70-80%, she says that 85% of women in prison are mothers. She also says that

From my research, when I wrote about holidays behind bars for Boston Magazine, I thought how sad it is that children must manage when parents are incarcerated, which according to Pew Research Study is not as rare as you might think: one in 28 kids has a parent in prison, nationwide.

Andrea James, now Executive Director of Families for Justice as Healing, wrote what it was like to leave small children and go to jail in her book Upper Bunkies Unite: And Other Thoughts On the Politics of Mass Incarceration. In a recent article on Huffington Post, James made the point that the so-called War on Drugs is responsible for separating so many non-violent women from their children, clearly calling for other ways to deal with behavior that needs “correcting.” Victoria Law also wrote about Families in her article for Waging Non-Violence, and brought up that the group of incarcerated and formerly incarcerated women is organizing a FREE HER rally in Washington, D.C. on June 21st, an idea that emerged while James was serving time. Per James: “We wanted to have a huge public event to raise our voices and raise awareness of all the women inside who are separated from their families and their communities… We also want to let the legislative and executive branches know that people are paying attention. These are people we care about.”

In my experience teaching at Framingham, I remember Mother’s Day in prison and the heartbreak of women having to see their children in the Visiting Room for a few hours, or the more poignant heartbreak of their children not being able to get transportation to the one state prison for women in Massachusetts. The connection was so strong between mother and child that even time and distance could not, in most cases, sever that bond.

One of the most touching experiences I had around that issue was when we produced plays in prison. We taped the play—these were home videos, mind you, always with a see-saw effect of an amateur holding camera, but generously filmed by a dear soul in the Education department at the prison who believed as I do in theatre as transformation. We then sent these tapes home to the families of the woman so they could be proud of their work—in perpetuity. I began a tradition of allowing each participant to have a few moments on tape to talk to her mother, father, grandparents, lover, or to her children. The women would tell their kids “If Mami can do this, then you can too,” or “See, Mommy is in school, just like you!”

The women looked forward to these video moments. They were so simple but so important, and ultimately, when they received letters back or talked to their family during coveted phone time, they shared with me how proud they were that their parents and their kids were proud of them. This is not to say that they should have been in prison, but that they did something to make use of their best selves while they were there.

Following up on Jobs Not Jails successful rally on Saturday, April 26th, more than seventy volunteers showed up today, April 30th, at the Massachusetts State House to hold orange banners, filled with petitions with more than 46,000 names—ironic since that’s about what it costs per year per state prisoner in Massachusetts. With the rally cry “Jobs Not Jails,” volunteers greeted passer-bys and legislators who stopped by to pledge their support. Here are some scenes from today.

Members of Jobs Not Jails in front of the State House including Steve O’Neill (left) and other members of Ex-Prisoners and Prisoners for Community Advancement (EPOCA).

Senator James Eldrige (Acton) on the left and Rep. Tom Sanncandro (Ashland) flank JNJ volunteers Lily Williams (left) and Brenda Dejarnette, both volunteers for Jobs Not Jails. Below Rep. Sannicandro signs the petition and a copy of the petition itself with what JNJ is standing for.

 
Also at the rally was Jason Lydon of Black and Pink and Barb Dougan of Families Against Mandatory Minimums (right, second pic).

The day included other volunteers who showed up as well, holding signs, passing out water and taking photos.

Jarmahl Crawford from Blackstonian.

Jobs Not Jails also reminded passer-bys and supporters to call their legislators and support bills that aim to stop mass incarceration. See my post below for more about the slate of criminal justice bills that are in process this year.

First, the updated schedule for Jobs Not Jails — tomorrow at the Boston Common, rain or shine, 1pm. Speakers are in bold. Issues in italics if no named speaker. Thanks to Lori Kenschaft for passing this along.

12:30  Music from the Second Line Brass Band
1:20    MC Cassandra Bensahih, Ex-Prisoners & Prisoners Org. Comm. Advancement
1:23    Sunni Ali,  Boston Workers Alliance,
1:27    Viraphanh Douangmany, Innocence Commission
1:31    Andrea James, Bail Reform
1:35    Ivan Richiez, Stop and Frisk
1:39    Donnelle Wright – Jobs Not Jails
1:43    Maura Healey, Candidate for Attorney General
1:48    Music from Antonio Ennis

****APRIL 30 LOBBYING PRIORITIES FOR JNJ:
2:00    Mandatory Minimums 
2:04    RMV Collateral Sanctions – EPOCA
2:08    Addiction Funding – Massachusetts Org for Addiction Recovery

2:12    Music by Revolutionary Snake Ensemble
2:32    Keturah  Brewster, Youth Jobs Coalition
2:36    Manny Gines & Rocky Thompson, Carpenters’ Union on  Minimum wage
2:40    Cassandra Bensahih, CORI Reform
2:50    Larry Turner, math teacher and father of a murder victim
2:55    Warren Tolman, Candidate for Attorney General
3:00    Music by Tem Blessed
3:15    CeCe McDonald, activist/trans woman incarcerated in men’s prison
3:20    Rev. Paul Robeson Ford, Union Baptist Church
3:25    Shackling
3:30    Black and Latino Legislative Caucus speaker -kicks off April 30th Action
3:35    Music
****INSTRUCTIONS FOR APRIL 30th LOBBYING
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Yesterday, at the State House, three fantastic panels testified to the Judiciary Committee on issues that they would like to see addressed. While JNJ has certain legislative priorities, and is approaching lobbying in their own way, these panels were activism in action. People spoke eloquently about other bills, but the organization and effort put into these panel testimonies was most impressive.

FAMM or Families Against Mandatory Minimums led by Barb Dougan in Massachusetts spoke passionately to do away with mandatory minimum sentencing, represented by two bills, H1645 and H1646.Dougan said “Too many people go to prison,” and sentences “are not proportionate with criminal history.” Two recovering addicts talked about how they transformed their lives but that they could have begun much earlier if they had immediately had alternatives to mandatory sentencing. Both other panelists, Maryann Frangules from Massachusetts Organization for Addiction Recovery, and Jerry Madden, former Texas House Corrections Chairman and senior fellow at Right on Crime, rounded out the panel from very different ends of the spectrum: but both said drug treatment was the answer not incarceration.

Barb Dougan, center, flanked by panelists and members of FAMM, standing

A panel sponsored by the Pretrial Working Group (PWG) knocked it out of the park. It began with Lois Ahrens of the Real Cost of Prisons Project recommending elimation of money bail because of it not being a true determinant of dangerousness. As an alternative, she suggested statewide pretrial services and referrals to community based programs. Hope Haff of the National Association of Social Workers said the PWG was against  H1434 since it was about building a new jail for pretrial women: remaining in jail for two months caused loss of housing, custody, inability to pay rent and many other services. Additionally, Norma Wassel, Committee for Public Counsel, pointed out that a large scale study showed that those held in jail pretrial were four times more likely to be sentenced to jail and three times more likely to go to prison. Rachel Roth, reproductive justice scholar, pointed out the harm jails inflict on women’s health including “diet, risk of sexual assault, mental illness, and birthing issues.” She said, “Instead of building new jails we can reduce number of women in custody.” The expertise of all these women was quite wonderful.

Andrea James of Families for Justice and Healing was last, but certainly not least. She said as a “formerly incarerated woman, “I am often the missing seat at the table,” and immediately grabbed everyone’s attention. It cannot be emphasized enough, she added, that separating mothers from children causes grievous harm. She, along with the rest of the panel recommended community based health and treatment —not jail. Prison seldom rehabilitates,she said.

I don’t see us building more prisons in the near future, said Judiciary Committee Vice-Chair, Christopher Markey. That was a breath of really fresh air in a long afternoon in a hot room with little response from listeners—Not a criticism, it is their job to listen at this point before they make decisions. Let’s hope Markey can make sure the Legislature agrees!

The final panel that was an wonderful example of diverse voices speaking for a cause was on solitary confinement. The bill in question was H1486 and Attorney Bonnie Tenneriello at Prison Legal Services spoke eloquently on why adjustments to solitary are so needed in Massachusetts since as it is, without certain regulations, it is “bad for public safety.” Beth McGuire talked powerfully about her son held in solitary, very tortured by isolation: “I’m scared of being alone all the time…I really need some help…send me somewhere…I need something to occupy my time.” And most expertly, Kristin Dame, a former clinical coordinator from Cedar Junction testified on how infamous segregation confined people with no limitation, breeding violence. She said that being “deprived of human contact really can destroy a person,” and explained how in isolation, “People driven to self harm.” She recommended limiting solitary and incentives to help prisoners earn privileges such as time in the yard. Some important details of the bill: “Segregated housing should be for the briefest term and under the least restrictive conditions practicable….”

For anyone who wants to know about solitary confinement in the U.S., see Solitary Nation. Gruesome but eye-opening.

These panels were examples of how we must approach getting change, and examples of activism at its best. Let’s hope the continued momentum and added energy from Jobs Not Jails creates more people speaking out for justice.