Charles D. Baker
Office of the Governor
Massachusetts State House
24 Beacon Street, Room 280
Boston, MA 02133

June 25, 2018                                                Re: Parole in Massachusetts

Dear Governor Baker:

We are a coalition of agencies, associations, and individuals in Massachusetts who advocate for fairness in criminal and juvenile justice proceedings, corrections and parole, or who work directly with families and communities dealing with disabilities and/or poverty. On January 17, 2017, we sent you a letter signed by numerous community groups concerning the work being done by the Council on State Government (CSG).  In that letter, we included our ideas for legislative reform and executive agency policy changes. Although there is still much work to do in the areas we addressed in that letter, we are encouraged by the passage of the new Criminal Justice Reform Act and we thank you for your work on that legislation.

We are concerned, however, that parole reform was largely omitted from the new legislation.[1] In our January 17, 2017 letter, we had recommended both legislative changes and executive policy changes concerning parole that would improve public safety, lower prison populations, reduce recidivism, improve outcomes for those in the criminal justice system, and save taxpayer money. There is still a great need for the reforms mentioned in that letter.

With this letter, we are alerting you to some pressing and serious concerns about parole in Massachusetts – concerns which, we suggest, can and should be addressed through immediate executive action.

1. Re-Appoint Charlene Bonner Ph.D. to another term as a member of the Parole Board and appoint additional members with education, training and clinical experience in the treatment of substance use disorders and mental health conditions.

Dr. Charlene Bonner is the only member of the Parole Board who has education, training and experience in clinical psychology and substance use disorders.[2] Dr. Bonner’s term of office expired on June 2^nd, and we are asking you to re-appoint her to another five-year term.

The need to have persons on the Parole Board with Dr. Bonner’s education and experience is essential if the Board is to function effectively.  As the percentage of persons suffering from substance use disorders and mental illness continues to grow in our county and state prisons, the importance of having Parole Board members who have a thorough understanding of how these disabilities intersect with readiness for parole is magnified. According to the Department of Correction (DOC), approximately 80% of the persons incarcerated in Massachusetts state prisons self-report as having substance use issues.  Sheriffs estimate that a similar figure is true for the house of correction population.  The DOC, in November of 2017, reported that 33% of its population had an “open” mental health case.  The County Sheriffs estimate that over 50% of their populations suffer from mental illnesses.[3]

It is the job of the Parole Board to understand past behavior so as to be better equipped to predict future behavior. For each case it hears, the Board must decide “after consideration of a risk and needs assessment, that there is a reasonable probability that, if the prisoner is released with appropriate conditions and community supervision, the prisoner will live and remain at liberty without violating the law and that release is not incompatible with the welfare of society.” G. L. c. 127 § 130 (emphasis added). A central part of that analysis, as our Supreme Judicial Court has recently recognized, is for the Board to identify any disabilities the parole applicant may have and “once the board bec[o]me[s] aware that [a parole applicant’s] disability could potentially affect his ability to qualify for parole, it ha[s] the responsibility to determine whether reasonable modifications could enable the [parole applicant] to qualify, without changing the fundamental nature of parole.” Crowell vs. Mass. Parole Board, 177 Mass. 106, 113 (2017).

With only one substance use and mental health specialist, Parole Board members do not have the expertise or the capacity to properly evaluate those who come before them.[4] It is deeply troubling to hear Board members tell parole applicants they are “manipulative” or “defiant” when in fact their actions and responses to questions from Board members are directly related to their mental health or cognitive issues. The stunningly low parole rates we have seen from the present Board (as set forth below) may, at least in part, be due to its inability to properly evaluate persons with histories of substance use and mental illness. We fear that people who could safely serve the remainder of their sentences in the community are being denied parole because not enough Board members have the knowledge or expertise to identify the accommodations that should be made available to the parole applicants in the community. Failing to parole people who could succeed in the community is an expensive strategy that  leads to higher recidivism and a waste of tax dollars.

Our state Legislature has long envisioned a Parole Board with a diversified membership. M.G.L. c. 27 § 4 requires that persons appointed to the Board have an undergraduate degree and at least five years of experience and training in one or more of the following fields: “parole, probation, corrections, law, law enforcement, psychology, psychiatry, sociology [or] social work” (emphasis added). Currently, the Board has three members from law or law enforcement (Treseler, Soto-Abbe and Coleman) and three from parole and corrections (Dupre, Hurley and Santa). There is no one from psychiatry, sociology or social work. We have only Dr. Bonner, a clinical and forensic psychologist, from the human services side of the statute.   

It is the Board’s job to evaluate persons who were convicted of crimes as children, persons who had traumatic childhoods and teenaged years, persons who suffered from addiction and other substance use disorders, persons with mental illnesses, and now, with the aging prison population, persons who suffer from dementia. We need a Parole Board equipped with the education, training and experience to make the right decisions.

Consequently, we respectfully urge you to re-appoint Dr. Bonner to another five-year term, and to fill upcoming vacancies with psychologists, psychiatrists, sociologists and social workers who believe in parole and are committed to paroling people with disabilities that can be successfully managed in the community.

2. To be an effective part of the justice system, the Parole Board must function better and parole more people with the appropriate supports in the community. The Parole Board is not completing important work in a timely manner nor is it reporting its work, undermining community confidence in the fairness of the process. 

Parole is an important public safety tool that, when properly administered, would greatly ease re-entry problems, lower recidivism, and result in significant cost-savings for the criminal justice system. As we noted in our 2017 letter to you, it has been understood for decades that formerly incarcerated people reoffend at significantly lower rates when they receive appropriate support and supervision on parole. The Massachusetts Parole Board paroles prisoners at a very low rate, forcing the majority of parole eligible people to complete or “wrap up” their sentences and transition home with no help and no oversight.

The number of people released from Massachusetts prisons with parole supervision must be increased. The CSG data on Massachusetts parole rates confirms that parole is vastly underutilized in Massachusetts.  CSG reports that during FY2015 only 19% of the parole eligible prisoners in our Houses of Correction were released on parole.[5]  In FY2015, the Parole Board reported that 46.4% of the parole eligible prisoners serving DOC sentences received “positive votes” for parole, but 18% of those people “max out and are not released to parole supervision,[6] making our DOC release on parole rate approximately 38%.  The parole rate for juvenile lifers over the past three years is only 18.2%.

These dismal parole rates document missed opportunities to promote public safety and better life outcomes for prisoners and parolees.  Although the Board has not yet published an Annual Report for 2016 or 2017, we believe the “released on parole rate” (as opposed to the “positive vote rate” which the Board documents) continues to fall.

In addition to the low paroling rates, the following observations, shared by many stakeholders in the community, cause us grave concern about how the present Parole Board is functioning:

• At present, persons serving parole eligible life sentences, as well as the victims of those crimes, are waiting an extraordinarily long time, presently approaching one year from the date of the hearing, to receive the Record of Decision. Our statutory scheme calls for lifer hearings to be conducted 60 days in advance of the lifer’s eligibility date, anticipating that lifer decisions would be issued prior to the eligibility date. During the first eight months of 2015, when Dr. Bonner was Chairperson of the Board, the wait time for a lifer decision was brought down to approximately 60 days.  After she stepped down as chair, the wait time grew to 144 days in 2016 and increased again in 2017 to 182 days. It has continued to get longer during 2018 and is now regularly between nine and twelve months. These lengthy wait times are extremely painful for the parole applicants, their families and the victims.[7]  To many, it translates to a lack of respect for those appearing before the Parole Board.

• The “Decision” sections of most Records of Decision issued in lifer cases in 2016, 2017 and 2018 are largely word-for-word identical save for the name of the lifer and the length of the setback. They offer little or no guidance as to what a denied lifer should address before his or her next parole hearing. According to statistics kept by the Lifers’ Group Inc., in 2017, the reason for denial in 67% of the decisions was “[the prisoner] needs longer period of adjustment.”[8] That provides no guidance to the potential parolee. A “longer period of adjustment” is essentially a non-answer that, rather than setting goals for the person seeking parole, translates to a lack of respect for the process, the prisoner, and the correctional staff charged with preparing the potential parolee. The Records of Decision in lifer cases need to be prepared with attention to factors that bear on readiness for parole such as program achievement, educational accomplishments, improved disciplinary record, and a structured plan for reentry. This is particularly true in juvenile lifer cases. In the case of parole denials for prisoners, the written decision must include detailed reasons for the denial and the specific areas or programs the prisoner needs to address to become ready for parole.

• The vast majority of the Parole Board’s hearings are for persons serving non-life sentences. Although the Records of Decision in these cases are supposed to be public, M.G.L. c. 127 § 130 (“[s]aid record of decision shall become a public record and shall be available to the public”), the Board does not post the decisions or make them available. The Board also refuses to make recordings of these non-lifer cases and, by its own regulations, it prohibits counsel from appearing at these release hearings.[9] Thus, the vast majority of the Parole Board’s hearings are done in private and no recording is made of the proceedings. The non-lifer parole applicant’s right to appeal an adverse decision is meaningless with no recording of the proceeding and no representation. Non-lifer hearings should be recorded and non-lifers seeking parole should be permitted to have legal representation at their parole release hearings.

• The last Annual Report published by the Parole Board was for calendar year 2015 and it was only recently made available. It is impossible to know what is happening at the Parole Board due to its lack of annual reporting and its confusing website. Since a new website was put up in 2017, it has been almost impossible to find data on the Board. Numerous complaints about the website have gone unanswered.

In its 2015 Annual Report, the Board claims a “paroling rate” 55% for House of Correction prisoners; a “paroling rate” of 47% for non-lifer DOC prisoners; and a “paroling rate” of 21% for lifers. But, as CSG pointed out, the “paroling rate” is not a reflection of the percentage of parole applicants who are released on parole.  The Board’s “paroling rate” is only its “positive vote” rate. Since many prisoners who receive a “positive vote” are never released on parole (see above), the Parole Board should be instructed to include in its Annual Report the percentage of parole applicants who have had a parole release hearing and, as a result, actually leave prison under parole supervision.  For communities most affected by high incarceration rates, posting misleading information undermines trust not only for the Parole Board, but for all of state government.

• During the past two and a half years, persons who have been successful on parole for decades have filed petitions to terminate parole supervision pursuant to M.G. L. c. 127 § 130A. These petitions have remained pending for years with no indication that the Parole Board has even reviewed them. It is contrary to best practices in parole to continue supervision for such long periods of time. It is also a waste of scarce resources.

• During the preceding two and half years, many petitions for a commutation of sentence have been pending before the Board. The Board members are supposed to review these petitions sitting as members of the Advisory Board of Pardons. These petitions have also been pending for years with no action by the Board members and with no indication that the Parole Board has even reviewed them.

• Parole officers and their supervisors need to receive additional training that reflects a needed culture change at the Parole Board. These parole officers and supervisors need to learn how they can help people succeed in the community, not simply monitor them for compliance with parole conditions. Many parolees and their family members report that parole supervision in Massachusetts has become extremely onerous and demeaning. CSG recommended a “risk needs responsivity” model of parole where individual needs are acknowledged and respected, and it strongly recommended against the failed “trail them, nail them and jail them” practice currently employed by parole officers. Additionally, the same standard parole conditions are placed on everyone regardless of the parolees’ individual needs. Parolees report receiving only compliance monitoring from their parole officers instead of the support, guidance and assistance necessary for successful re-entry work.

We urge you to set both short and long-term goals, implementing best practices, to increase the parole rate and address these concerns.   

3. Our 2017 letter contained two recommendations that would positively impact parole: one concerned changes in DOC and the other is a legislative change. We continue to endorse these recommendations.

• The DOC’s classification system would be far more effective and would save millions of dollars if it allowed prisoners to step-down in security levels. The over-classification of Massachusetts prisoners is at the heart of many of the re-entry and recidivism problems in Massachusetts. There are too many DOC prisoners confined in maximum and medium security facilities for too long and too few in minimum security and pre-release facilities. These practices are problematic for at least two reasons. The first is public safety: prisoners in lower security have greater access to rehabilitative and community re-entry programming such as vocational training and work-release. They are, therefore, more likely to reintegrate successfully into the community.  The second reason is fiscal resources: higher security prisons are more expensive to operate than lower security prisons. As we wrote in our January 2017 letter: “One of the first steps in successful re-entry is for the prisoner to step down through security levels in the prison system.” CSG has spoken about how important it is that prisoners step down in security levels and enter lower security or pre-release facilities before they are released from prison.  When prisoners obtain “lower security” classification scores, they should presumptively move to a lower security prison.  This is a basic tenet of re-entry best practices.[10]

• A presumptive parole bill should be adopted. As we wrote in our January 2017 letter: “Carefully constructed presumptive parole legislation, something CSG has drafted for other jurisdictions, will . . . promot[e] public safety and sav[e] many millions of dollars every year. CSG research tells us that presumptive parole will reduce recidivism while it promotes 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.  With the average annual cost in fiscal year 2014 of $53,040.87 to house a Massachusetts state prisoner and the annual cost of $5,000 to supervise one parolee, it is clear that failure to maximize parole supervision is costly for taxpayers.”

Thank you for considering our suggestions for steps to improve the parole process in Massachusetts in both the short and long-term.  We are hoping to select several persons to be representative of these [number] of community groups and request a meeting with you.  We hope to be contacting you shortly.

Sincerely,

Actual Justice Task Team of Massachusetts Conference, United Church of Christ
American Civil Liberties Union of Massachusetts (ACLU)*
Association for Behavioral Healthcare
Center for Public Representation
Citizens for Juvenile Justice
Coalition for Effective Public Safety
Cooperative Metropolitan Ministries
Council on American-Islamic Relations (CAIR) – Massachusetts
Criminal Justice Task Force of the First Unitarian Universalist Society in Newton
End Mass Incarceration Together (EMIT)
Families for Justice as Healing
Freedom Road Socialist Organization
Greater Boston Interfaith Organization
Greater Boston Legal Services CORI & Re-entry Project
Green-Rainbow Party
Harvard Prison Legal Assistance Project, Supervising Attorney, John B. Fitzpatrick
Jobs NOT Jails
Justice Resource Institute
Louis D. Brown Peace Institute
M-Power
Massachusetts Association of Criminal Defense Lawyers (MACDL)
Massachusetts Association for Mental Health
Massachusetts Community Action Network
Massachusetts Organization for Addiction Recovery
Mass Incarceration Working Group of the First Parish Unitarian Universalist of Arlington
Mental Health Legal Advisors Committee
Muslim Justice League
National Association of Social Workers- MA
National Lawyers Guild—Massachusetts Chapter
Northeastern University School of Law Prisoners’ Assistance Project
Peace and Social Concerns Committee of Cambridge Friends Meeting
Prison Fellowship Committee of Cambridge Friends Meeting
Prison Policy Initiative
Prisoners’ Legal Services
Progressive Massachusetts
Project: Operation Change
Real Cost of Prisons Project
Restorative Justice: RSVP
ROCA
The Coalition for Social Justice
The Charles Hamilton Houston Institute for Race and Justice at Harvard Law School
The Criminal Justice Task Force of Congregation Dorshei Tzedek
The Essex County Community Organization
The Lionheart Foundation
Unitarian Universalist Mass Action Network
* ACLU cannot support any particular candidate as set forth in position#1, but signs on & endorses rest of the letter.

 

cc:

The Honorable Ralph D. Gants
Chief Justice, Supreme Judicial Court

Robert A. DeLeo
Speaker of the House of Representatives

Harriette L. Chandler
President of the Massachusetts Senate

Karen E. Spilka, Senator,
Massachusetts Senate

Lon Povich
Chief Legal Counsel
Office of the Governor

__________________________________________________________

[1] A limitation on parole fees during a parolee’s first six months to a year in the community appears to be the only parole reform adopted.

[2] The other members are Paul Treseler, the Chairperson, who was a Suffolk County prosecutor for over twenty years; Lucy Soto-Abbe, who worked as a victim’s rights advocate for the Hampden County DA’s office for seventeen years; Sheila Dupre and Colette Santa, both of whom had careers in corrections; Tina Hurley, who worked for the Massachusetts Parole Board in various roles for over twenty years; and Tonomey Coleman, a lawyer who was in private practice.

[3] On November 25, 2016, the Boston Globe Spotlight Team wrote: “Last year, more than 15,000 prisoners walked out of the Massachusetts jails and prisons. More than one-third suffer from mental illness; more than half have a history of addiction. Thousands are coping with both kinds of disorders, their risk of problems amplified as they re-enter society.” Most of those people wrapped up their sentences in prison and were released without parole supervision. https://apps.bostonglobe.com/spotlight/the-desperate-and-the-dead/series/prisons/.

[4]  It is our understanding that the Parole Board presently conducts approximately 6,000 hearings a year. (Since the Board has only recently issued its Annual Report for 2015, it is difficult to know the current number with any precision.) The vast majority of the hearings are panel hearings where one, two or three members of the Board make up the hearing panel. Less than 100 hundred hearings each year are lifer hearings where the full board sits. Thus, most cases do not have any input from the Board’s one member with expertise in substance use and mental illness.

[5] While “80% of HOC releases in Massachusetts are parole eligible, only 19% of those parole eligible are released from HOCs to parole supervision.” CSG Working Group Meeting 4 Interim Report, October 20, 2016, CSG data for FY2015, p.39.

[6] CSG Working Group Meeting 4 Interim Report, October 20, 2016, p.p. 30-31.  And, the individuals who need parole support the most are not receiving it. “Individuals leaving medium and maximum security [DOC] facilities account for the lowest proportion of individuals who are paroled and the highest proportion of individuals released without any community supervision.”  CSG Working Group Meeting 3 Interim Report, July 12, 2016, CSG data for FY2014 DOC data, pp. 56-57.

[7] One of the more recent decisions posted on the Parole Board’s website shows Edgar Bowser waiting over a year (hearing on 4/25/17 and decision, denying parole, issued on 4/26/18).  Similarly, lifers Gary Powers and Gary Phillips waited over eleven months for their denials, issued on March 6 and 15, 2018 respectively. Lifer Miguel Lozada waited ten and a half months for his denial issued on March 6, 2018.

The long wait time for prisoners who receive a positive parole vote means that they have needlessly spent many extra months in prison, simply waiting to be released to the community or waiting to be moved to lower security (many parole votes require lifers to be transferred to lower security and live there successfully for six to twelve months prior to being paroled) or waiting to start serving a from-and-after sentence. Spending up to an extra year in prison simply waiting for the Board’s decision causes prisoners and their families to suffer tremendous anxiety and uncertainty and results in a large and unnecessary financial waste to taxpayers.  For example, lifer Richard Hazard, whose hearing was on 4/20/17,  waited more than eleven and a half months for his decision (4/12/18), paroling him to a from-and-after sentence; James Allen, whose hearing was on 5/2/17, waited over ten months for his decision, paroling him to a community program; Stephen Meyers, whose hearing was on 6/1/17,  waited over eleven months for his decision (5/3/18), paroling him to a community program upon completion of six months in lower security; Shawn Collins, whose hearing was on 9/7/17, waited nine months for his decision (5/7/18), paroling him to a community program after completion of twelve months in lower security.  These four prisoners alone spent a combined extra four and a half years in prison, at great cost to their rehabilitation and to the Commonwealth’s finances. And, these are just a few of the many examples.

[8]  Parole Decisions for Lifers 2017, prepared by Lifers’ Group, Inc. (Haas, G. and Magrath, G.)  CEPS data is in accord with these statistics.

[9] 120 CMR 300.08 provides: “The Parole Board  does not permit representation by counsel at initial release hearings or at any review hearing, except for those inmates serving a life sentence with attendant parole eligibility.”

[10]  The mandate of the Special Commission to Study the Criminal Justice System, established by the Massachusetts Legislature through Section 189 of Chapter 68 of the Acts of 2011, is to help create an evidence-based criminal justice system in which policy and funding are driven by reliably analyzed data and measured outcomes.  The Commission, composed of eighteen members from all three branches of government and community stakeholders, unanimously made this their #1 recommendation in July of 2014 and then in a published report on December 31, 2014.  (“The Department of Correction should adopt policies and practices that ensure that all prisoners, including those whose risk to recidivate is determined to be high or moderate, are placed in a pre-release facility at least 90 days prior to discharge or parole.”) The same recommendation was made for Houses of Correction.  These recommendations appear to have been ignored. Under the present administration, this statutorily mandated Criminal Justice Commission has ceased to exist.