Senator Joan B. Lovely
State Senator
2nd Essex District


October 27, 2017

Senate Passes Sweeping Criminal Justice Reform Bill

Legislation repeals mandatory minimums, repeals punitive fees, updates sentencing guidelines

Senator Lovely’s amendment raises age of consent to 19 years old in educational setting

(Boston) – Last night, the Massachusetts Senate passed by a vote of 27-10 a comprehensive criminal justice reform package that updates criminal sentencing laws to improve outcomes of our criminal justice system.  The bill includes repealing low level drug offender mandatory minimum sentences in favor of treatment and rehabilitation options, reducing and eliminating high fees and fines, bail reform, compassionate release for infirmed inmates, and reforms to the juvenile justice system.

“It is critical that individuals suffering from drug addiction have access to effective treatment and rehabilitation options,” stated Senator Joan Lovely. “Increasing access to diversion programs for youthful offenders and low-level drug users is critical in ending the cycle of incarceration.”

“In state after state, criminal justice reform has led to lower incarceration rates, lower crime rates, and lower recidivism rates. It’s time Massachusetts joins the national let’s get smart on crime movement.  This bill protects public safety and makes commonsense reforms while improving outcomes with our precious tax dollars,” said Senate President Stan Rosenberg (D-Amherst).

The bill, An Act Relative to Criminal Justice Reform, sponsored by Senator Will Brownsberger (D- Belmont), Senate Chair of the Joint Committee on the Judiciary is the result of many months of work researching best practices, common sense solutions, procedures and policies that have been effective in other states to produce legislation that will enhance diversion from the criminal justice system, repeal outdated mandatory minimums for low level drug offenders, lower costs, and produce better outcomes.

“This bill is about lifting people up instead of locking them up, while focusing attention on the most serious offenders,” said Senator Brownsberger.

Senator Lovely Amendments

Senator Lovely was successful in advocating for passage of two critically important amendments. The first amendment prohibits teachers and other school and youth-serving employees from claiming consent with a high-school student under the age of 19, or for special education students, age 22. The current age of consent for sexual contact with an adult in Massachusetts is 16 years old. As a result, teachers and other school employees can use consent as an affirmative defense against claims of sexual assault or rape in the school settings. This creates an unfortunate window of opportunity for abusers in positions of authority to take advantage of minors in their care or under their direction. In situations such as these, where the balance of power weighs heavily in favor of the teacher, consent is untenable. The amendment now gives students and their families recourse against those who would take advantage of a student.

The other amendment updates the violent crime victim compensation law to ensure that minor victims are not subject to the timely filing requirement in the victim compensation law, ensuring their continued access to this important resource. Currently, victims may file a claim for up to three years after a police report is filed. However, for minors who are victims of abuse, that filing may not happen for many years after the crime has been committed.

“These amendments address issues that I have been advocating for in the Senate,” stated Senator Lovely. “Protecting our most vulnerable against sexual predators needs to be a priority. These amendments move us closer toward accomplishing this goal.”

Senator Lovely also filed an amendment to change the current criminal statute of limitations so that there would be no statute of limitations on crimes of child indecent assault and battery or rape. Although Massachusetts has made strides in amending the statute of limitations for these crimes in recent years, there is more that we can do. Too often, an individual who has suffered sexual abuse as a child does not even realize its occurrence until he/she is much older. By then, it is too late for them to press charges. Unfortunately, this amendment failed but will continue to fight for this issue to be addressed through a bill she filed, S. 902.

Other Bill Provisions

As part of a nationwide trend in addressing the inequities in the bail system, the bill reforms the current bail system of the Commonwealth by setting strict guidelines for judges when setting bail for a defendant.  The bill rewrites the existing bail statute to create a clear road map for decision-making consistent with the Supreme Judicial Court’s recent ruling that cash bail must be affordable.   The bill goes beyond that guidance to further strengthen the procedural barriers to setting bail that is higher than a defendant can afford, to ensure individuals are not held solely because they are unable to pay.

Often times, defendants who cannot afford bail are incarcerated before trial with no ability to work, take care of their families, or receive important services such as addiction counseling.  In addition, the bill makes dangerousness hearings available in more cases and allows longer detention of defendants on a dangerousness finding, strengthening the mechanism for holding people who are actually dangerous.

The bill also addresses the issue of “fine time” where the state incarcerates individuals who are unable to pay court fines and fees, equivalent to a modern day “debtor’s prison.”  In November 2016, the Senate issued a report highlighting how these fees, including $150 fee for legal counsel even if a person has been ruled indigent, starts a vicious cycle of incarceration and punishing low income defendants.   The bill sets a schedule to reduce and eliminate these fines and fees over time to protect indigent defendants.  In addition, the bill reduces and eliminates monthly parole fees for individuals on parole.

Recent polling has shown overwhelming public support for repealing mandatory minimums.  In a 2016 nationwide poll by the PEW Charitable Trusts found that nearly 80 percent of people support the repeal of mandatory minimums for non-violent drug offenders and nearly three-quarters support repeal of mandatory minimums for all offenses.[1]  In two separate Massinc polls, one in 2014 and one in 2017, “just 8 percent of voters prefer mandatory minimums, while the vast majority are split between having judges refer to sentencing guidelines (46 percent) or giving judges complete discretion in sentencing (41 percent).”[2]

In addition to sentencing reform, the bill would make diversion to a program, as an alternative to the criminal process, more available for young adults and for people with substance use disorders, while supporting the expansion of restorative justice approaches in appropriate cases. Through these proposed reforms, the bill seeks to help drug users access the treatment they need, increase the availability of meaningful diversion opportunities, and reduce preventable contact with the criminal justice system.

The bill also updates various areas of the law related to juvenile justice, to encourage rehabilitation and positive future outcomes, reduce recidivism and ensure fair treatment for young people. The bill raises the age of juvenile jurisdiction to include 18 year olds, holding young adults accountable for their mistakes while ensuring access to developmentally appropriate rehabilitative and educational services.

Recognizing that juveniles have not reached full adult maturity, the bill expands opportunities for the sealing and expungement of records, including the creation of a process for the expungement of juvenile misdemeanor records. The bill also decriminalizes in-school disorderly conduct, to reduce the use of arrest as a tool of school discipline.

In addition, the bill codifies the constitutional right of indigent juvenile offenders to counsel and expert assistance for parole hearings, as established by the 2015 Supreme Judicial Court decision in Diatchenko II. The bill creates a parent-child privilege to allow parents to help their children in the court system without being forced to testify about these conversations.

Since 2007, thirty-three states have reformed or revised their criminal justice system to reduce incarceration rates, cut costs, reduce recidivism, and improve outcomes.  Massachusetts reformed some sentencing provisions in 2012.

“I would like to thank everyone who participated in this process, particularly the District Attorney’s and also the many constituents I heard from in support of the bill.”

The bill now goes to the House of Representatives for consideration.