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A federal judge in Boston this week handed down what seems to be an unprecedented sentence - he ordered that three men, who had just plead guilty to distribution of cocaine, be banned from the city for twelve years after they complete their prison sentences.

“We have never seen this happen before,” [U.S. Attorney Michael] Sullivan said. “The judge was persuaded to separate them from the people they influence.”

I must admit that I am flummoxed by this ruling.  Will they be charged with trespassing if they come back to Boston?  Based on my rudimentary understanding of the Tenth Amendment and Article 4, I suppose it is constitutional, as it does not restrict interstate travel, but I’m guessing this is not one of the things that the defendants were anticipating when going through a plea colloquy.

A big deal has been made about the apparent problem of “witness intimidation” in Massachusetts recently. A couple of years ago, Boston Mayor Thomas Menino tried to eschew the First Amendment by announcing that the city would actually go into retail stores and remove all “Stop Snitchin’” t-shirts. Currently, Boston has seen a rise in homicides this year, and police have been very public in saying they have faced difficulty solving them because witnesses are afraid to come forward in the face of potential reprisal. The state’s department of public safety and the National Center for Victims of Crime also recently release a report entitled “Snitches Get Stitches: Youth, Gangs, and Witness Intimidation in Massachusetts.” The report concluded, after talking to teenagers, that “witness intimidation remains a significant problem that seriously undermines the effectiveness of the criminal justice system,” though the Boston Police Chief then downplayed these findings, saying that “the fear is much more widespread than the actual instances.”

One response to this perceived widespread threat has been…a little perverse, to say the least. Specifically, a bill has recently been introduced in the Massachusetts legislature that would subject juveniles (aged 14-16) charged with witness intimidation to the same punishment as adults - up to 10 years in state prison. It would also make these trials public instead of keeping them closed like other juvenile proceedings are right now. These procedures are currently reserved only for a few crimes, such as violent charges involving guns.

Suffolk County District Attorney Daniel F. Conley said witness intimidation is a huge and growing problem, hampering the prosecution of serious cases. The overwhelming majority of his office’s drug and gun cases, he said, involve some degree of witness or victim intimidation.

“When a young person has reached the point where they would resort to intimidation and violence to silence others, it makes sense for prosecutors to have the option of treating those juveniles as adults,” Conley said. “I don’t know that it should be applied in every case — most of the juveniles can be turned around. But some have demonstrated a great capacity for violence.”

Let’s take a step back for a minute here. Has it occurred to anyone that, if a KID as young as 14 is being charged with witness intimidation, that he is perhaps being used as a pawn by adults to do their dirty work? Or that he still has a chance to actually go somewhere in life, a chance that will be completely wiped out if he spends 10 years behind bars with much older inmates? There’s a reason that there is a separate court system for KIDS under 17. This tough talk is ridiculous and I sincerely hope that our legislature is smart enough to see past the rhetoric to the devastating impact this law could have.

There are times when I absolutely adore being from and in Massachusetts - like the moment I found out (while sitting in 1L Contracts class) that the Supreme Judicial Court had legalized gay marriage, and the few minutes last night sitting in the bleachers at Fenway Park and watching my beloved Red Sox hit FOUR home runs in a row against the Yankees. And then there are times when I am saddened - no, ashamed - to see what goes on in this state, such as this tale about Rommel Jones, a man held in prison for FOUR years after his release date.

Mr. Jones was a victim of the complicated rules of parole and good time in the Massachusetts correctional system, specifically the rule stating that consecutive sentences (such as Mr. Jones’s 20 years plus 10 years on-and-after) automatically convert to concurrent sentences once the inmate is placed on parole. This is not something that is easy understood or even widely known, which explains why Mr. Jones didn’t know (despite asking several times) when he was supposed to be released. But you would think that the people in charge of knowing these things would know it. They didn’t. And Mr. Jones, who admits that he has been a “hoodlum” and knows that he suffers from significant mental illnesses, was robbed of four years of his freedom.

On top of that, the Department of Corrections (when they realized their mistake) told him they had only miscalculated by one week. And then they rationalized the lie by saying the release would have had “little or no practical effect on his quality of life” and that telling would even have been cruel because “we could be criticized for explaining this to someone . . . with the history of mental illness that this individual has.”

Pardon my language, but are you EFFING KIDDING ME?

In the four years he was mistakenly detained, Jones missed his mother’s wake, lost contact with his teenage daughter, and endured the daily perils of life behind bars. where his mental illness meant a ping-pong existence between life in a prison cell and the psychiatric wards of Bridgewater State Hospital.

“She doesn’t know me,” Jones said softly over a recent lunch at the Prudential Center, referring to [outgoing DoC commissioner Kathleen] Dennehy. “She’s saying they made a decision not even to say anything because they didn’t think that I would be intelligent enough to understand. That’s horrible. That’s one of the saddest excuses that I’ve ever heard. All she had to do is just try me. I’m more intelligent than they know.”

Mr. Jones didn’t even know about the extent of his over-incarceration until reporters at the Boston Globe contacted him while researching this issue. The research prompted the DoC to actually examine what was going on behind their bars and claimed that they found 25 inmates with miscalculated release dates, none of which had been reached yet. But then they had to admit the full (?) truth, revealing that 13 more people in the last four years had been held from a low of one to a high of 515 days past their release dates.

James R. Pingeon of Massachusetts Correctional Legal Services called this “stunning incompetence.” I’m not even sure that covers it.

I was honestly surprised that now-Governor Deval Patrick made reforming the Massachusetts criminal record system a platform of his campaign - when politicians are obsessed with seeming “tough on crime,” this could have easily been interpreted as “soft on crime.” But, of course, he was highlighting the fact that individuals with criminal records, no matter how minimal, face near impossible barriers to getting jobs, housing, and education, thus only encouraging a cycle of recidivism when there’s no opportunity to truly become a so-called “productive member of society.”

Currently, a person’s record (called a CORI, for the Criminal Offender Record Information) reflects a felony for at least 15 years and a misdemeanor for 10. This is true even if there was no jail sentence, but only probation, community service, or even a dismissal. If he picks up a new charge, the count starts all over again. And then a person has to petition to expunge the record, a system that presents a whole new slew of barriers and red tape. On top of that, CORIs are filled with difficult-to-read code and shorthand. I look at several CORIs everyday and I still come across abbreviations that I have to look up.

Let’s say, for example, that you have just decided to invest in some real estate. You buy an apartment building and begin taking applications for tenants. You request an applicant’s CORI and see the following after a charge of, say, “disorderly conduct”:

C 12/13/02 CWOF SP 12/9/03 VN 2/12/03 DF 8/31/05 D/R VOP FINE $200 10/7/05 DF 12/6/05 D/F CMTD

Would you have any freakin idea what that meant if you hadn’t even had training on CORIs or a list of what each entry meant? All you would see is a bunch of gibberish that seems to show that this person had a lot of involvement with the court. Just the mere fact of entries may be enough to say no to her application, regardless of what it actually meant or what she was doing now.

(By the way, it means that, after arraignment, the case was continued to 12/13/02, at which point the defendant admitted to sufficient facts for a finding of guilty and was given a Continued Without a Finding with supervised probation until 12/9/03 but was served with a violation of probation to be heard on 2/12/03. The person defaulted on that date but the default was removed on 8/31/05 and the violation hearing resulted in there being a fine of $200 assessed. The fine was due on 10/7/05 but the money was not paid by then and the person did not show up in court to explain why it was not paid. That default was removed on 12/6/05 and the person was then committed in jail, likely for seven days at the rate of $30 credit per day).

This week, protesters against the current CORI system marched on the Statehouse to demand that this asinine system of roadblocks be reformed to allow people to get on with their lives, rather than being branded for the rest of their lives.

The system, developed in 1972, was meant to create a database for law enforcement agencies while streamlining people’s personal information into one system, so it could be controlled.

Those calling for reform argued, however, that the setup has allowed employers and housing agencies to use blanket discrimination against anyone with a criminal record, without consideration for the nature of the crime, when it occurred, or whether there was ever a conviction. Plus, there’s no consideration for rehabilitation services that were completed, advocates for reform said.

[…]

Those lobbying for reform have called for reducing the time before a record can be sealed, from 15 to 7 years for a felony, and from 10 to three years for a misdemeanor. Also, agencies other than law enforcement would be limited to viewing records of convictions and pending cases. The proposal would ban employer discrimination if someone’s criminal history would not pertain to the job.

Advocates cited statistics showing that people who have stayed crime-free for seven years have less than a 1 percent chance of re-offending. They questioned why CORI should haunt them when they’ve escaped a criminal past.

Currently, Governor Patrick is looking to attach fingerprint records to CORIs and train employers to read codes like the ones cited above.  But he faces a much steeper uphill battle in his quest to limit CORI access for employers because, of course, people see this as rewarding criminals, not helping people move on from past mistakes.

Using taxpayer dollars to give criminals an easier ride is often a bitter pill to swallow, however. Leominster Mayor Dean Mazzarella supports Patrick’s two proposals, but would oppose anything that would restrict the release of CORI information.

Those who espouse a “lock them up and throw away the key” mentality are missing the fact that 97 percent of Massachusetts inmates will be released, said Len Engles, project coordinator of the Criminal Justice Institute.

Massachusetts Governor Deval Patrick is looking to “fundamentally change the philosophy” of the state’s criminal justice system by scrutinizing the mandatory minimum sentencing laws. The proposal is sheathed in concerns over money and public safety, but it also inherently addresses the chances prisoners have to re-integrate into society and the identical treatment of first offenders verses repeat offenders in some cases.

Administration officials say that the mandatory minimum sentences, which eliminate judges’ discretion in certain cases, drive up the cost of corrections and make it less likely that prisoners will participate in programs that could help them reenter society when they are released.

Because those prisoners cannot get out early for good behavior, critics say, they have little incentive to participate in programs while in prison. And they are barred by law from enrolling in work release, rehabilitation, or furlough programs outside their institution, according to Mary Elizabeth Heffernan, an undersecretary for public safety. Once they wrap up their sentence, she added, they are sent back into society unsupervised.

The mandatory minimum that I see most often in my district court practice is the two years attached to selling drugs within 1000 feet of a school or park. In any urban area, this pretty much covers every single square foot of the city. So someone charged with possession with intent to distribute in a city has this additional charge slapped on every time, whereas someone in the suburbs would not. And where do most of the poor live? In cities of course. This translates into prosecutors often having enormous leverage in dealing with these cases, because they will agree to dismiss the school zone charge only if the defendant pleas to the underlying charge. The risk of facing a mandatory minimum if convicted at trial is usually enough to make anyone too scared to fight, even if there’s a good case to make that the drugs were for personal use (and thus straight possession) and not possessed with any intent to distribute.

[Attorney General Martha] Coakley estimates that a third to 40 percent of the state’s prisoners are serving mandatory minimum sentences.

If a judge issues a sentence greater than the minimum, the prisoner becomes eligible for programs once the minimum has been served. But many judges, bristling at their loss of discretion, have responded to the restrictions by imposing only the minimum, prosecutors and judges say, and criminals are freed as soon as their mandatory sentence is up.

Of course, the administration is “talking to the Massachusetts District Attorneys Association to come up with something that would be acceptable to prosecutors,” without any mention of input from the defense bar, but I am optimistic about this re-examination.

But I am wary of the idea of ensuring that every released prisoner have supervision after release - in theory, it sounds fine. But I am not at all confident in the actual ability of the probation and parole departments to help prisoners once they are released. From what I have seen (with a few notable exceptions), they have little to no concern with helping people find sober housing, medical care, employment, education, or family re-integration. Instead, their only concerns seem to be scrutinizing every little misstep so that they can violate everyone based on not being a perfect person. And this is only going to send people back to jail over and over again if it also isn’t fundamentally re-examined.

I am gearing up for my vacation to Las Vegas starting on Thursday, so I decided to see what was going on in the world of crime and defense in my favorite city of Elvis, roulette, and open containers. And I came across as issue that, shockingly, I have not yet figured out an opinion on - whether a verdict of “guilty but mentally ill” should be an option in criminal cases.

Apparently, the state of Nevada scrapped the “not guilty by reason of insanity” verdict back in 1995 and replaced it with “guilty but mentally ill.” The Nevada Supreme Court slapped the legislature down, however, ruling in 2001 that getting rid of the insanity defense was unconstitutional and eliminating the “guilty but mentally ill” option. But now State Assemblyman William Horne - a Democrat and a criminal defense attorney - has proposed re-introducing the “guilty but mentally ill” verdict in addition to the constitutionally-mandated insanity defense. The public defenders in the state, though, have expressed concerns that such a verdict would actually deprive the mentally ill of proper treatment.

“The defense bar does raise some legitimate concerns, but I don’t think it’s bad that a jury can say, ‘You didn’t meet the standard for insanity, but you did have some mental health issues,’” Horne said.

Horne added that offenders should still have an obligation to society to pay for crimes they commit.

[…]

Lisa Rasmussen testified for Nevada Attorneys for Criminal Justice, saying the proposed standard should not be used to erode the “not guilty by reason of insanity” standard. She said it should only be allowed if the defendants propose it themselves, and not by prosecutors as a bargaining tool against the insanity plea.

She also pushed for excluding death penalty and life-without-parole sentences for those found guilty but mentally ill.

As the actual text of proposed AB193 makes clear, a defendant would have to prove mental illness by the (relatively low) preponderance of the evidence standard and would also “generally” be subjected to the same penalties as any other defendant pleading guilty.

Regardless of whether a defendant is mentally ill at the time of sentencing, the court is required to impose any sentence available to the court for a defendant who pleads or is found guilty of the same offense. However, if the defendant is mentally ill at the time of sentencing, the court is also required, under certain circumstances, to direct the Department of Corrections to provide to the defendant such treatment as is available for his mental illness during his confinement or probation.

Specifically in regards to treatment:

[A court shall] include in that sentence an order that the defendant,
during the period of his confinement or probation, be given such treatment as is available for his mental illness if the court determines that the relative risks and benefits of the available treatment are such that a reasonable person would consent to such treatment.
The Department of Corrections shall provide any treatment ordered by a court [.]

So, while the verdict could be incredibly helpful in some circumstances, the public defender faction seems to be quite correct (not that I am biased or anything) in their concerns about what actual treatment these defendants may receive. Now, I do not know any details about the mental health resources available in the Nevada Correctional system, but “whatever treatment is available” seems awfully vague. It appears that individual judges would be responsible for mandating specific treatment (hopefully with the input of defense attorneys), but that the DoC would be responsible for carrying it out. It’s sort of like adding a condition of probation to a jail sentence and I’m not sure how practical or helpful that really is to a defendant with mental health issues.