PRISONERS' LEGAL SERVICES / MCLS
Prisoners' Legal Services (formerly MCLS) was established in 1972 to provide civil legal services to people in Massachusetts prisons and jails. The office focuses on four issues: health and mental health care, guard-on-prisoner violence, physical conditions of confinement, and segregation and isolation. Prisoners' Legal Services addresses these problems through administrative advocacy, legislative advocacy, and litigation. The office does not provide criminal defense services.
Prisoners' Legal Services
10 Winthrop Square
Boston, MA 02110
Phone: (617) 482-2773
Fax: (617) 451-6383
Prisoners' Legal Services accepts telephone requests for assistance on Monday afternoons from 1 to 4 P.M. Family and friends of prisoners can call toll-free from anywhere in Massachusetts on (800) 882-1413. County prisoners should call collect on (617) 482-4124. DOC prisoners can use the pre-authorized speed dial number *9004#. When Monday is a holiday, calling hours are on Tuesday.
PRISONERS' LEGAL SERVICES MISSION STATEMENT
Prisoners' Legal Services promotes the safe, humane and lawful treatment of Massachusetts prisoners through civil rights litigation, administrative advocacy, client counseling, and outreach to policy makers and the public.
Prisoners' Legal Services Priority Areas are:
- Health Care, including mental health care
- Brutality
- Extreme Conditions of Confinement
- Segregation
Adopted by the Prisoners' Legal Services Board of Directors September 2007.
NOTICE TO BRISTOL COUNTY PRISONERS
Souza, et al. v. Sheriff Thomas M. Hodgson, Bristol Civil Action No. 02-00870
You may be a plaintiff in a class action law suit filed in 2002 in the Bristol Superior Court challenging certain fees charged by Bristol County Sheriff Thomas M. Hodgson. The Court has decided that this case covers all Bristol prisoners who paid any of the following fees under the Inmate Financial Responsibility Program:
- The $5.00 dollar per day "cost-of-care" fee;
- Fees for medical care;
- Fees for GED services or tests;
- Any haircut fee in excess of $1.50 per haircut.
In 2004, the Court ruled that these fees were unlawful and ordered the Sheriff to stop collecting them. On January 5, 2010, the Supreme Judicial Court of Massachusetts rejected the Sheriff's appeal. On January 7, 2011, the Court established a procedure to pay back the illegally seized fees.
If you want your money back, you must file a Claim Form by April 7, 2011. If you did not receive a Claim Form in the mail, you may obtain one by writing to:
Bristol County Jail Class Action
P.O. Box 2002
Chanhassen, MN 55317-2002
This is also the address where you must submit the Claim Form.
If you submit a Claim Form and it is approved, you will receive the amount of fees you paid, plus am additional 10% in interest. However, depending on the number of claims made, your actual payment might be reduced as a result of any attorneys' fees and expenses awarded by the Court.
Questions? visit www.BristolCountyJailClassAction.com or call Toll Free 1-888-764-4439.
Contact Your Legislators Right Away Re: S.2080 and H.3818
In Conference Committee right now are a Senate bill (S.2080) and a House bill (H.3818) that will change the existing habitual offender law, also known as “three strikes and you’re out”. Also included only in S.2080 are provisions that will require mandatory post-release supervision for all state prisoners who have served their entire sentence, reduce mandatory minimum drug sentences, and increase the amount of deductions from their sentences that prisoners can earn for good conduct (“earned good time”). The final version of the bill that the Conference Committee agrees upon cannot be amended further by the legislature. As a result, it is vital to contact your legislator immediately to speak out against the passage of the extremely costly, misguided, and unfair provisions of the bills and to show support for those provisions that are a step in the right direction.
Things to Keep in Mind:
- The changes to the habitual offender law will dramatically increase costs for the Department of Correction, county correctional facilities, and the court system. It is estimated that it will cost between $75-125 million per year once the law has fully taken effect, not including the costs of building new prisons. Inevitably, incarcerating more prisoners for longer sentences will cost taxpayers more money.
- The new habitual offender provisions will worsen existing overcrowding in state prisons and county correctional facilities.
- The new habitual offender provisions are overly inclusive and will lead to disproportionate punishments. Both Subsections (a) and (b) of the habitual offender provisions fail to consider the lack of seriousness of the actions required to meet the elements of many offenses deemed “strikes” and prevent consideration of mitigating factors regarding the circumstances of the case and the individual defendant that is necessary for fair and appropriate sentencing.
- No research supports a link between longer prison terms and reduced recidivism.
- Mandatory post-release supervision of prisoners who have already served their debt to society will cost $6-11.5 million per year, once the law has fully taken effect.
Inform Your Legislators That the Conference Committee Should:
(1) Make habitual offenders sentenced to life imprisonment pursuant to Subsection (b) eligible for parole after serving 25 years;
(2) Adopt H.3818’s version of Subsection (b) of Chapter 279, §25;
(3) Adopt S.2080’s version of Subsection (a) of Chapter 279, §25;
(4) Remove less serious crimes from Subsection (b) of Chapter 279, §25;
(5) Include an exception to the habitual offender provisions that allows a judge to disallow consideration of a prior conviction as a “strike” in the interests of justice;
(6) Adopt the medical parole provision in S.2080 Section 23;
(7) Adopt the earned good time provision in S.2080 Sections 24, 25, 26 to help reduce overcrowding;
(8) Adopt the reductions to the mandatory minimum sentences provided in S.2080 Sections 6-20; and
(9) Eliminate any provision calling for mandatory-post release supervision.
You can get the names and contact information of your Senator and Representative by calling (617)722-2000 or by searching at http://www.malegislature.gov/people/findmylegislator. We also urge you to contact the six Conference Committee members and the House and Senate leadership identified below:
Conference Committee Members:
Representative Eugene O’Flaherty (D), Chair, Joint Committee on the Judiciary (617)722-2396
Representative Bradford Hill (R), (617)722-2100
Representative David Linsky (D) (617)722-2575
Senator Cynthia Creem (D), Chair, Joint Committee on the Judiciary (617)722-1639
Senator Bruce Tarr (R) (617)722-1600
Senator Steven Baddour (D) (617)722-1604
Congressional Leadership
Speaker of the House, Robert DeLeo (D) (617)722-2500
Senate President, Therese Murray (D) (617)722-1500
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Comparison of Significance of Habitual Offender Provisions in S.2080 and H.3818 |
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Question #1: Who is Considered a Habitual Offender? |
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Current Law |
S.2080 |
H.3818 |
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G.L.c.279, §25:
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Section 46, amending G.L.c.279, §25: Subsection (a)
Subsection (b)
Subsections (c) and (d)
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Section 3, amending G.L.c.279, §25: Subsection (a)
Subsection (b)
* H.3818 appropriately eliminates from the list of crimes in S.2080: G.L.c.265, §13H; G.L.c.265, §13K(a1/2) and (d)- (f); G.L.c.266, §17; G.L.c.266, §18; G.L.c.269, and §12F(e). Subsection (c)
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Question #2: Are Habitual Offenders Eligible for Parole? |
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Current Law |
S.2080 |
H.3818 |
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G.L.c.127, §133B: A habitual offender is eligible for parole after serving 1/2 of the maximum sentence allowed for the third felony. |
Section 31, amending G.L.c.127, §133B: A habitual offender under Subsection (a) is eligible for parole after serving 2/3 of the maximum sentence allowed for the third felony.
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Section 1, amending G.L.c.127, §133B: Same as in Section 31 of S.2080.
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G.L.c.127, §133B: See above. |
Section 32, adding a paragraph to G.L.c.127, §133B: A habitual offender under Subsection (b) is not eligible for parole, work release or deductions from their sentences for good conduct. |
Section 2, adding a paragraph to G.L.c.127, §133B: Same as in Section 32 of S.2080.
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Completed: December 9, 2011
Updated: January 17, 2012
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Comparison of Text of Habitual Offender Provisions in S.2080 and H.3818 |
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Current Law |
S.2080 |
H.3818 |
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G.L.c.279, §25: Whoever has been twice convicted of crime and sentenced and committed to prison in this or another state, or once in this and once or more in another state, for terms of not less than three years each, and does not show that he has been pardoned for either crime on the ground that he was innocent, shall, upon conviction of a felony, be considered an habitual criminal and be punished by imprisonment in the state prison for the maximum term provided by law as a penalty for the felony for which he is then to be sentenced. |
Section 46, amending G.L.c.279, §25: Subsection (a) Whoever is convicted of a felony and has been previously twice convicted and sentenced to prison for a term of not less than 3 years by the commonwealth, another state or the United States, and who does not show that he has been pardoned for either crime on the ground that he was innocent, shall be considered a habitual criminal and be punished by imprisonment in the state prison for such felony for the maximum term provided by law. Subsection (b) Whoever: (i) has been convicted 2 times previously of 1 or more of the following offenses: section 131M of chapter 140; section 1, 13 or 13½, subsection (b) of section 13A, section 13B, 13B½, 13B¾, 13F, 13H, 13J, 13K, 14 or 15, subsection (a) or (c) of section 15A, subsection (b) of section 15C, 15D, 16, 17, 18, 18A, 18B or 18C, section 21, 21A, 22, 22A, 22B, 22C, 23A, 23B, 24, 24B, 26, 26B, 26C or 28, subsection (b) of section 39 or subsection (b) or (c) of section 43 of chapter 265, section 1, 14, 17, 18, 102, 102A, 102B or 102C of chapter 266, section 10, 10E or subsection (e) of section 12F of chapter 269 or section 3, 4A, 13, 17, 29A, 29B, 29C, 35A or subsection (b) of section 53A of chapter 272, or has been convicted 2 times previously of a like violation of the laws of another state, the United States or a military, territorial or Indian tribal authority, arising out of charges separately brought and tried, and arising out of separate and distinct incidents that occurred at different times, where the second offense occurred subsequent to the first conviction; (ii) has served at least 1 day of incarceration for each of the prior 2 convictions; and (iii) does not show that he has been pardoned for either prior offense on the ground that he was innocent shall, upon conviction of 1 of the enumerated offenses in clause (i), if the offense occurred subsequent to the second conviction, be considered a habitual criminal and punished by imprisonment in the state prison for the maximum term provided by law. No sentence imposed under this section shall be reduced or suspended nor shall such person so sentenced be eligible for probation, parole, work release or furlough or receive any deduction from such person’s sentence for good conduct. Subsection (c) No person shall be considered a habitual offender pursuant to subsection (b) based upon any offense for which such person was adjudicated a delinquent child, or a like violation of the laws of another state, the United States or a military, territorial or Indian tribal authority for which a person was treated as a juvenile. Subsection (d) No guilty plea shall be entered for any offense listed in subsection (b), unless a person is informed by the court, prior to entering the plea, of the penalties for a violation of said subsection: (1) imprisonment in the state prison for the maximum term provided by law; (2) that no sentence may be reduced or suspended; and (3) that no person so sentenced shall be eligible for probation, parole, work release or furlough or receive any deduction in sentence for good conduct. No otherwise valid plea or conviction shall be vacated based upon the failure to give such warnings.
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Section 3, amending G.L.c.279, §25: Subsection (a) (a) Whoever is convicted of a felony and has been previously twice convicted and sentenced to state prison or state correctional facility by the commonwealth, another state or the United States, and who does not show that he has been pardoned for either crime on the ground that he was innocent, shall be considered a habitual criminal and shall be punished by imprisonment in state prison or state correctional facility for such felony for the maximum term provided by law. Subsection (b) Whoever: (i) has been convicted 2 times previously of 1 or more of the following offenses: section 131M of chapter 140; section 1, 13 or 13½, subsection (b) of section 13A, section 13B, 13B½, 13B¾, 13F, 13J, subsection (b) or (c) of section 13K, 14 or 15, subsection (a) or (c) of section 15A, subsection (b) of section 15C, 15D, 16, 17, 18, 18A, 18B or 18C, section 21, 21A, 22, 22A, 22B, 22C, 23A, 23B, 24, 24B, 26, 26B, 26C or 28, subsection (b) of section 39 or subsection (b) or (c) of section 43 of chapter 265, section 1, 14, 102, 102A, 102B or 102C of chapter 266, section 10, 10E or chapter 269 or section 3, 4A, 13, 17, 29A, 29B, 29C, 35A or subsection (b) of section 53A of chapter 272, or has been convicted 2 times previously of a like violation of the laws of another state, the United States or a military, territorial or Indian tribal authority, arising out of charges separately brought and tried, and arising out of separate and distinct incidents that occurred at different times, where the second offense occurred subsequent to the first conviction; (ii) has been sentenced to incarceration at a state prison or state correctional facility for at least 1 day to be served for each of the prior 2 convictions; and (iii) does not show that he has been pardoned for either prior offense on the ground that he was innocent shall, upon conviction of 1 of the enumerated offenses in clause (i), where the offense occurred subsequent to the second conviction, shall be considered a habitual offender and shall be punished by incarceration at a state prison or state correctional facility for the maximum term provided by law for said offense enumerated in clause (i). No sentence imposed under this section shall be reduced or suspended nor shall such person so sentenced be eligible for probation, parole, work release or furlough or receive any deduction from such person’s sentence for good conduct. A sentence imposed on a habitual offender under this section, if said habitual offender is incarcerated at a state prison or state correctional facility, shall commence upon the conclusion of the sentence, said habitual offender is serving at the time of sentencing. Subsection (c) No person shall be considered a habitual offender pursuant to subsection (b) based upon any offense for which such person was adjudicated a delinquent child, or a like violation of the laws of another state, the United States or a military, territorial or Indian tribal authority for which a person was treated as a juvenile. (d) No guilty plea shall be entered for any offense listed in subsection (b), unless a person is informed by the court, prior to entering the plea, of the penalties for a violation of said subsection: (1) imprisonment in state prison or state correctional facility for the maximum term provided by law; (2) that no sentence may be reduced or suspended; and (3) that no person so sentenced shall be eligible for probation, parole, work release or furlough or receive any deduction in sentence for good conduct. No otherwise valid plea or conviction shall be vacated based upon the failure to give such warnings. |
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G.L.c.127, §133B: In the case of every prisoner sentenced under the provisions of section twenty-five of chapter two hundred and seventy-nine except for those persons sentenced to a term of imprisonment as prescribed by the sentencing guidelines established by the sentencing commission, the parole board shall, within sixty days before the expiration of half of his maximum sentence, and thereafter at least once in each ensuing two-year period, consider carefully and thoroughly the merits of such case on the question of releasing such person on parole.... |
Section 31, amending G.L.c.127, §133B: The parole board shall, within 60 days before the expiration of two-thirds of the maximum sentence of a prisoner sentenced under section 25 of chapter 279, and thereafter at least once in each ensuing 2-year period, consider carefully and thoroughly the merits of releasing such person on parole except for a habitual offender sentenced under subsection (b) of section 25 of chapter 279 and a prisoner sentenced to a term of imprisonment as prescribed by the sentencing guidelines established by the sentencing commission. |
Section 1, amending G.L.c.127, §133B: Same language as in Section 31 of S.2080.
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G.L.c.127, §133B: See above. |
Section 32, adding a paragraph to G.L.c.127, §133B: Habitual offenders sentenced under subsection (b) of said section 25 of said chapter 279 shall not be eligible for parole, work release or furlough or receive any deduction from such person’s sentence for good conduct. |
Section 2, adding a paragraph to G.L.c.127, §133B: Same language as in Section 32 of S.2080.
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December 9, 2011
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Summary of S.2080 with Cost Information |
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Section |
Summary |
Cost Estimate[1] |
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1, 1A |
Sex offender registry board to notify local police upon offender’s release from custody. Registration at police station must be done within 2 days of release. |
Minimal direct costs. |
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1B |
Calls for electronic notification system to inform state police when a person is convicted of an offense requiring DNA submission. |
Additional costs; difficult to estimate. |
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2, 2A, 3 |
Expands who may take DNA samples and immunity from civil liability to buccal swab collection. |
Minimal savings. |
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4 |
Allows criminal penalties for a person who fails to provide a DNA sample within 1 year of conviction, adjudication, or release. |
Minimal direct costs.[2] |
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4A |
Allows governor to remove Parole Board members for cause, after notice and hearing. |
No direct costs. |
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4B |
Increases the number of appointees for parole board search panel from 5 to 9. |
Minimal direct costs. |
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4C |
Adds to parole board search panel nominees from DA Association, CPCS, PLS, and law enforcement. |
No direct costs. |
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4D |
Adds parole board nominee with experience in adolescent development/psychology. |
No direct costs. |
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4E |
Adds parole board nominee who is a victim witness advocate. |
No direct costs. |
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4F |
Requires one parole board member to be a victim witness advocate. |
No direct costs.[3] |
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5 |
Gives parole board duty to administer/oversee mandatory post-release supervision of all state prisoners created by Section 34. |
Approximately $6-$11.5 million per year.[4] See Section 34. |
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5A |
Makes it lawful to prescribe certain drugs to people at risk of opiate overdose, and their family members, friends, or helpers. |
Likely some health care and criminal justice-related savings; difficult to estimate. |
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6 |
Reduces mandatory minimum for repeat offenders of distribution of Class A substances from 5 to 3½ years. |
Approximately $16-$32 million in savings from all mandatory minimum sentence and weight reductions.[5] |
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7 |
Reduces mandatory minimum for distribution of Class B drugs from 3 to 2 years. |
Part of $16-$32 million savings. See Section 6. |
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8 |
Reduces mandatory minimum for repeat offenders of distribution of Class B substances from 5 to 3½ years. |
Part of $16-$32 million savings. See Section 6. |
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9, 10 |
Reduces mandatory minimum for distribution of Class C drugs from 2 years HOC to 18 months; retains mandatory minimum prison term of 2 years. |
None for state prisons. Some savings for county facilities; difficult to estimate. |
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11 |
Reduces mandatory minimum for trafficking 100-2000 lbs marijuana from 3 to 2 years. |
Part of $16-$32 million savings. See Section 6. |
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12 |
Reduces mandatory minimum for trafficking marijuana 2000- 10,000 lbs from 5 to 3½ years |
Part of $16-$32 million savings. See Section 6. |
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13 |
Reduces mandatory minimum for trafficking marijuana over 10,000 lbs from 10 to 8 years. |
Part of $16-$32 million savings. See Section 6. |
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13A |
Raises minimum amount of cocaine/phenmetrazine for trafficking from 14 to 18 grams. |
Part of $16-$32 million savings. See Section 6. |
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14 |
Changes weight range for trafficking cocaine/phenmetrazine from 14-28 grams to 18-36 grams; reduces mandatory minimum from 3 to 2 years. |
Part of $16-$32 million savings. See Section 6. |
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15 |
Changes weight range for trafficking cocaine/phenmetrazine from 28-100 grams to 36-100 grams; reduces mandatory minimum from 5 to 3½ years. |
Part of $16-$32 million savings. See Section 6. |
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16 |
Reduces mandatory minimum for trafficking cocaine/phenmetrazine 100-200 grams from 10 to 8 years. |
Part of $16-$32 million savings. See Section 6. |
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17 |
Reduces mandatory minimum for trafficking cocaine/phenmetrazine 200+ grams from 15 to 12 years. |
Part of $16-$32 million savings. See Section 6. |
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17A |
Raises minimum amount of heroin/morphine/opium for trafficking from 14 to 18 grams. |
Part of $16-$32 million savings. See Section 6. |
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18 |
Changes weight range for trafficking heroin/morphine/opium from 14-28 grams to 18-36 grams; reduces mandatory minimum from 5 to 3½ years. Changes weight range of trafficking heroin/morphine/ opium from 28-100 grams to 36-100 grams; reduces mandatory minimum from 7 to 5 years. |
Part of $16-$32 million savings. See Section 6. |
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19 |
Reduces mandatory minimum for trafficking heroin/morphine/ opium 100-200 grams of heroin/morphine/opium from 10 to 8 years. |
Part of $16-$32 million savings. See Section 6. |
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20 |
Reduces mandatory minimum for trafficking heroin/morphine/ opium 200+ grams from 15 to 12 years. |
Part of $16-$32 million savings. See Section 6. |
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20A & 20B |
Allows for discretionary participation in work-release by drug offenders serving mandatory minimum sentences. |
Potential savings; difficult to estimate.[6] |
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21 |
Reduces school zone from 1000 to 500 feet from school property. |
Potential savings; difficult to estimate.[7] |
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21A |
Adds amnesty from prosecution for people seeking medical assistance for someone experiencing a drug related overdose. |
Minimal savings. |
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21B |
Gives Commissioner of Correction duty to promulgate regulations for reentry programs. |
No direct costs. |
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22 |
Adds new section requiring transfer of medical and mental health records when prisoners are transferred between facilities. |
Potential savings on health care and liability, but difficult to estimate. |
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23 |
Makes provision for medical parole release. |
Potential for major savings only if used by Parole Board.[8] |
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24, 25 |
Increases minimum amount of earned good time credit from 2 ½ to 5 days per month. Increases earned good time maximum from 7 ½ to 10 days per month. |
Substantial savings, but difficult to estimate.[9] |
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26 |
Adds bonus 10 days of good time for program completion |
Some savings, but hard to estimate |
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27 |
Adds criteria for Parole Board to consider in deciding to grant parole. |
If result is fewer approvals of parole, additional costs. |
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28 |
Requires parole board to either post decisions on the internet, or post an explanation of why that is not practicable. |
Minimal direct costs. |
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29 |
Removes parole eligibility for people serving multiple life sentences; calls for the application of Section 45. |
Approximately $9 million additional costs per year.[10] |
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30 |
Requires 2/3 vote in favor of parole release by the Parole Board members for prisoners serving life sentences rather than majority. |
Additional costs due to fewer parole releases.[11] |
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30A |
Parole board must provide written certification that it has notified DAs, law enforcement, and victims of parole hearing; notification applies to everyone sentenced to 5 or more years in prison. |
Minimal direct costs.
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31 |
Parole eligibility after 2/3 of maximum sentence for habitual offenders; no parole eligibility for habitual offenders sentenced under c. 279 § 25(b) of enumerated offenses. |
Significant costs of increased sentences for every habitual offender. Part of $75-125 million additional costs per year. See Section 46. |
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32 |
No parole, work release, furlough, or good time for habitual offenders sentenced under c. 279 § 25(b) of enumerated offenses |
Part of $75-125 million additional costs per year. See Section 46. |
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33 |
Parole board may delay hearing until 30 days before eligibility, with written statement of reasons |
Minimal direct costs.
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34 |
Imposes mandatory post-release supervision for all state prisoners. |
Part of $6-$11.5 million per year. See Section 5. |
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34A |
Increased penalty for assault and battery on a public employee, when the conduct includes the attempt to disarm a police officer in the performance of police duties. |
Increased costs for longer sentences. |
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35 |
Changes statute regarding assault and battery on family members, repeat offenders. |
Minimal direct costs; difficult to estimate. |
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36 |
Adds new crimes of assault and battery by discharge of gun, assault and battery by brandishing gun, strangling/suffocation, enticement to murder. |
Additional costs; difficult to estimate. |
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37, 38 |
First-offense larceny by check under $250 punishable by fine. |
Minimal savings. |
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39 |
Raises penalties for second offense of carrying dangerous weapons from 7 to 10 years, third offense from 7-10 to 10-15, fourth offense from 10-15 to 15-20. |
Increased costs for longer sentences. |
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40 |
Adds increased penalty for possession of firearm, etc. by person convicted of crime punishable by at least 2 ½ years. |
Increased costs for longer sentences. |
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41 |
Strikes purpose provision of interception of communications statute. |
No direct costs. |
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42 |
Amending definition of wire communication. |
No direct costs. |
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43 |
Adds extra offenses to definition of designated offense for interception of communications. |
Minimal direct costs. |
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43A |
Allows treatment of certain municipal/misdemeanor offenses as civil infractions; permits arrest and fine for failure to give true name/ address. |
Any savings offset by additional arrests.
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44, 45 |
Requires the court to fix a minimum term of incarceration when sentencing second degree lifers between 15 and 25 years. |
Approximately $7 million in additional costs per year[12] |
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46 |
Amends the existing habitual offender, or three strikes, statute to include a Subsection (a) applying to all felonies and Subsection (b) applying to 59 specified crimes. All convicted of a third strike must be sentenced to the maximum allowed by law. See Section 31 for parole eligibility. |
The addition of M.G.L. c. 279, §25 Subsection (b) alone will cost at least an additional $75-125 million per year.[13] |
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47 |
Duty of parole board to regulate post-release supervision effective immediately, regulations to take effect no more than 90 days later. |
Part of $6-$11.5 per year. See Section 5. |
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48 |
Mandatory post-release supervision required for every felony committed on or after effective date of this act. |
Part of $6-$11.5 per year. See Section 5. |
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49 |
Permits persons serving existing mandatory minimum sentences for drug offenses to be eligible for parole, work release, and good conduct deductions upon reaching the new mandatory minimum sentences set out in Sections 6 through 20. |
Scale of direct savings dependant on whether Parole Board will grant parole releases. |
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49A |
Mandates eight hours of training for Parole Board annually. |
Minimal direct costs. |
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49B |
Extends restraining order protections to animals. |
Minimal direct costs. |
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49C |
Establishes commission to study the development of a prioritization system for sex offender classification. |
Some additional costs; difficult to estimate. |
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50 |
Effective date for Section 4 of this act 1/1/2013. |
N/A |
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51 |
All other provisions effective in 90 days. |
N/A |
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Estimated Total Costs of All S.2080 Provisions Once the Law Has Fully Taken Effect |
Approximately $81-121 million in additional costs to taxpayers per year. |
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Completed: January 17, 2012
Updated: January 18, 2012
[1] While many provisions will result in some immediate additional costs to Massachusetts taxpayers, the bulk of the staggering costs that will result from the passage of S.2080 will not accrue immediately or even in the next few years. The impact of the most expensive provisions of S.2080, along with the savings produced by Sections 6 through 20, will not be felt until the law is fully in effect due to the ex post facto principle, the fact that mandatory minimum sentence reductions are not retroactive, and the cumulative effect that the provisions will have on prison overcrowding and the growing budget of the Department of Correction. Any claim that S.2080 is cost-neutral lacks foresight and is dangerously misleading.
[2] While direct costs are minimal, additional convictions resulting from the amendment to the current law, which requires a “refusal” to provide a DNA sample and does not set a 1 year deadline, will be potentially costly.
[3] However, significant costs may be incurred as a result of fewer prisoners being released on parole due to the negative vote of the victim witness advocate Parole Board member. The risk of extra costs is especially high with regard to prisoners serving life sentences in light of Section 30 of S.2080, discussed below, requiring a 2/3 positive vote for release.
[4] Approximately 1,700 prisoners are released each year at the conclusion of their sentence without supervision. Even assuming that the average length of supervision is only 1 year, rather than the 2 year maximum term permitted, the increased costs are considerable. To handle these new post-release supervision parolees and maintain current parole officer caseloads, based on the Parole Board’s estimate of the cost to supervise one parolee for one year, implementing this section could require an additional $8.5 million per year ($5,000 cost of supervision x 1,700 people). Alternately, dividing the Parole Board’s budget of $19 million by the 3,365 parolees it supervised in 2009 yields an average cost per parolee of $5,600. Calculating the costs of mandatory post-supervision using this figure means that adding another 1,700 people could result in additional annual costs of 9.5 million. The Senate Ways and Means Committee estimates a $2,500 cost per parolee per year, yielding potential yearly costs of $4.25 million.
The annual cost of re-incarcerating post-release supervision parolees who violate a condition of their supervision must then be added; Section 34 allows the Parole Board to re-incarcerate based on both criminal and non-criminal violations of post-release supervision. Per the Department of Correction (DOC), the average cost per year to house a prisoner in FY2010 was $45,917.05. DOC, “Frequently Asked Questions about the DOC”, available at http://www.mass.gov/eopss/agencies/doc/faqs-about-the-doc.html. If 15% of these parolees are revoked each year and incarcerated for two months, it could increase costs by $2 million each year (255 people x $7,600 cost of 2 months).
[5] In 2010, 697 people were convicted and received mandatory minimum sentences for drug offenses. See Sentencing Commission, “Survey of Sentencing Practices FY 2010,” Executive Summary, p.V, available at http://www.mass.gov/courts/admin/sentcomm/fy2010survey.pdf. The sentence reductions in Sections 6 through 20 would reduce each mandatory minimum sentence by 1 to 3 years. However, though minimum possible sentences change, judges retain the discretion to give higher sentences. The greatest mandatory minimum reductions apply to the longest sentences, which relatively few people are serving. Once Sections 6 through 20 are in full effect, if half of the prisoners received 1 year reductions to their sentences, it would result in a savings of $16 million per year (349 people x $46,000 cost per prisoner). If all 697 prisoners were sentenced to 1 year less, that would save $32 million. This is a substantial amount and a positive reform, but does not come close to offsetting the long-term costs of other alarming provisions in S.2080.
[6] Direct savings from allowing a subset of prisoners out on work-release during the day are minimal. However, various studies correlate participation in work-release programs with a significant drop in recidivism rates. See Executive Office of Public Safety, “Implementing a Reentry Program According to Best Practices” available at http://www.mass.gov/eopss/docs/eops/publications /eops-grantee-tools.pdf. In a February 2011 report, the DOC states that recidivism rates from its pre-release facilities where work-release programs are accessible average 14%. See DOC, “A Look at the Department of Correction Pre-Release Facilities,” available at http://www.mass.gov/eopss/docs/doc/research-reports/briefs-stats-bulletins/inmate-pre-release-brief.pdf, at pp.4-5. This is about three times lower than the overall recidivism rate for DOC prisoners provided in a January 2011 report. See DOC, “Recidivism Rates 2006 Release Cohort,” available at http://www.mass.gov/eopss/docs/doc/research-reports/briefs-stats-bulletins/recidivism-rates-2006-release-cohort.pdf. Therefore, savings from the likely reduction in recidivism resulting from prisoners accessing work-release programs who were previously statutorily prohibited from participation could be significant.
[7] In fiscal year 2010, there were 147 people serving sentences for school zone drug violations. See Sentencing Commission, “Survey of Sentencing Practices FY 2010,” p.31, available at http://www.mass.gov/courts/admin/sentcomm/fy2010survey.pdf. This section would reduce sentences for some subset of these people, depending on the concentration of school zones in particular areas.
[8] Between 2000 and 2009, the group of Massachusetts prisoners age 60 and older increased 80%, from 325 to 584 individuals. See DOC, “Age of Custody Population 2002-2011,” p.2, available at http://www.mass.gov/eopss/docs/doc/research-reports/briefs-stats-bulletins/age-custody-pop-2002-2011.pdf. This trend is sure to continue as other provisions of this bill increase sentence lengths and reduce parole eligibility. An older prison population requires more costly medical care, often at least $100,000 per year per prisoner for elderly prisoners. California estimates that the average yearly cost of health care for the oldest prisoners who needed substantial amounts of specialty health care was $42,000. See California State Auditor, “California Department of Corrections and Rehabilitation: Inmates Sentenced under the Three Strikes Law and a Small Number of Inmates Receiving Specialty Health Care Represent Significant Costs,” May 2010 Report 2009-107.2, p.40, available at http://www.bsa.ca.gov/pdfs/reports/2009-107.2.pdf. The 72 California prisoners who died in custody in 2007-08 incurred over $8.8 million in constitutionally-required healthcare costs. Id. at pp.38-40. This tremendous expenditure could have been shifted to Medicaid, a more efficient means of providing healthcare, by releasing those prisoners who met parole criteria.
[9] Earned good time credit is earned by partaking in work, educational, vocational, or rehabilitative programming. Providing incentives to participate in these programs improves public safety, as research shows that participation in educational and vocational programs could result in reductions of 7-9% in recidivism rates. DOC, “January 1, 2009 Inmate Statistics,” p.22, available at http://www.mass.gov/eopss/docs/doc/research-reports/jan-1-population/112009.pdf . However, such opportunities are not always available. The DOC currently spends only 2.4% of its budget on these programs. See DOC, 2009 Annual Report, p.78, available at http://www.mass.gov/eopss/docs/doc/annual-report-2009-final.pdf.
[10] The DOC reports that 32 people received second degree life sentences in 2010. Department of Correction, “Prison Population Trends 2010,” August 2011, p.21, available at http://www.mass.gov/eopss/docs/doc/research-reports/pop-trends/prison-pop-trends-2010.pdf. If 10 of those 32 people are sentenced to multiple second degree life sentences and serve an additional 20 years due to the elimination of parole eligibility, this would result in an additional 200 people in DOC custody once the law has fully take effect. As such, the elimination of parole eligibility for people serving multiple second degree life sentences will cost the Commonwealth approximately $9.2 million per year once the law has fully taken effect (10 people serving on average 20 extra years x $46,000 per year). This estimation does not account for the higher medical costs associated with aging prisoners or the capital costs of building additional maximum security prisons required to accommodate more prisoners serving life sentences.
[11] Requiring more affirmative votes by Parole Board members will further reduce the parole rate and increase the number of prisoners. Even under current law requiring a simple majority vote of the Parole Board, parole release rates have declined in 2011. Despite the fact that 44% of state prisoners have been approved for parole, the DOC estimates that actual parole releases were down 56% in 2011 compared to 2010 levels. Department of Correction, “Current Parole Admission and Release Trends at the Massachusetts Department of Correction,” December 2011, p.2, available at http://www.mass.gov/eopss/docs/doc/research-reports/briefs-stats-bulletins/current-parole-trends-november-2011.pdf. There were also zero positive votes reported in 2011 for people serving second degree life sentences. This means that over 500 extra prisoners remain in custody, at a cost of $25 million per year.
[12] Massachusetts taxpayers will pay nearly half a million dollars for each prisoner sentenced to 10 extra years (10 years x $46,000). Again, the DOC reports that 32 people received second degree life sentences in 2010. DOC, “Prison Population Trends 2010,” August 2011, p.21, available at http://www.mass.gov/eopss/docs/doc/research-reports/pop-trends/prison-pop-trends-2010.pdf. Assuming that changing parole eligibility from 15 years to 15-25 years would mean the average offender would serve 5 more years, the change would give rise to 160 additional people in DOC custody once the law has fully taken effect. The result will be approximately $7.4 million per year once the law has fully taken effect (32 people serving an average of 5 extra years x $46,000 per year).
This estimation does not account for the higher medical costs associated with aging prisoners or the capital costs of building additional maximum security prisons required to accommodate more prisoners serving life sentences. Between 2000 and 2009, the group of inmates age 65 and older increased 84%, to 245 individuals. An older prison population requires more costly medical care, often at least $100,000 per year per prisoner. This trend is sure to continue as sentence length increases. Keeping older prisoners, who are statistically least likely to reoffend, incarcerated without any possibility of parole will dramatically increase costs as the prison population ages. These costs will not all accrue immediately, but will result in huge increases over the long term.
[13] There are currently over 5,500 of the DOC’s 11,800 prisoners serving sentences for one of the listed crimes in S.2080’s Subsection (b). Each year about 1,500 new prisoners are sentenced to DOC for a Subsection (b) crime. Based on analysis of data in the Massachusetts Sentencing Commission’s “Survey of Sentencing Practices FY 2010,” 150-250 of these prisoners could be sentenced under Subsection (b) of Section 46, some to life without parole. See Sentencing Commission, “Survey of Sentencing Practices FY 2010,” Figure 1: Sentencing Guidelines Grid at p.3, Table 24: Grid Cell Assignment by Court Department at p.37; Criminal History Group at p.70; Selecting a Governing Offense, p.71 (explaining that the statistics “may underestimate the number of defendants in the highest criminal history group”); and Table 41: Governing Offense by Grid Cell Assignment and Incarceration Status, All Courts, pp.86-87, available at http://www.mass.gov/courts/admin/sentcomm/fy2010survey.pdf. The range of 150-250 was estimated by assuming that all people convicted of a third strike would be in criminal history group D or E, and that all crimes of Levels 7-9 and 50% of Level 6 crimes would count as strikes. The range also includes a rough estimate of the number of people who have served at least one day in county facilities for their previous two “strikes,” under Subsection (b) of S.2080.
Even if each of these 150-250 prisoners serves ‘only’ an average of 10 additional years, this will result in an additional 1,500-2,500 DOC prisoners once the law has fully taken effect. Therefore, Subsection (b) could cost taxpayers between $75-125 million per year (150-250 people x 10 extra years x $46,000 per year), not including the capital costs of building necessary new prison beds.
This estimate is consistent with the experience of other states. For example, in 2010 the California State Auditor concluded that the Three Strikes law had cost the state $19.2 billion dollars over 9 years, but that the costs would have been $10.7 billion if only serious and violent offenses counted as “strikes.” California State Auditor May 2010 Report 2009-107.2, pp. 21, 27, available at http://www.bsa.ca.gov/pdfs/reports/2009-107.2.pdf. Since Subsection (b) only includes 59 specified offenses, and adjusting for the size of the California prison population, a reasonable estimate of the costs to Massachusetts taxpayers is $81 million per year. In fact, this may underestimate Massachusetts costs since the California law does not mandate life without parole.
Any additional increase in the Massachusetts prison population will also almost certainly require new prison construction. Even without the passage of new legislation, state prisons and jails are already overcrowded, the DOC has projected annual prison population growth of 2.7% from 2009 to 2019, and the Parole Board is releasing 56% fewer people than it did in 2010. DOC, “Summary of Ten-Year Prison Population Projections 2009-2019,” p.1, available at http://www.mass.gov/eopss/docs/doc/research-reports/population-projections-summary-2009.pdf; DOC, “Current Parole Admission and Release Trends at the Massachusetts Department of Correction,” December 2011, p.2, available at http://www.mass.gov/eopss/docs/doc/research-reports/briefs-stats-bulletins/current-parole-trends-november-2011.pdf. In its most recent report from December 2011, the DOC projected that by the end of 2011 it would have 550 additional prisoners because of the 56% reduction in parole releases compared to 2010 at a cost of over $25 million for 1 year (550 people x $46,000). See id. The most recent jail construction cost the Commonwealth over $223,000 per cell.
Analysis of S.2080 & H.3818 “Three Strikes” Provisions
Skyrocketing Costs, Overcrowding, and Disproportionate Punishments
The amendments to Chapter 279, §25 in S.2080 and H.3818 will overwhelm the Massachusetts criminal justice system, which is already in a state of crisis by generating a dramatic increase in prison sentences and additional costs of approximately $75-125 million per year once the provisions are in full effect. The end result of either of the proposed habitual offender, or “three strikes”, laws will be dramatically increased costs for the Department of Correction, county correctional facilities, and the court system, exacerbation of existing overcrowding at state prisons and county correctional facilities, and imposition of disproportionate punishments. Inevitably, incarcerating more prisoners for longer sentences will cost taxpayers more money.
However, these detrimental effects can be mitigated to some extent if the Conference Committee:
(1) Adopts from S.2080 (Section 46) the language of Subsection (a) of Chapter 279, §25;
(2) Adopts from H.3818 (Section 3) the language of Subsection (b) of Chapter 279, §25;
(3) Removes certain crimes from Subsection (b) of Chapter 279, §25 in light of the lack of seriousness
of the actions required to be convicted of the offenses;
(4) Makes habitual offenders sentenced to life imprisonment pursuant to Subsection (b) eligible for
parole after serving 25 years of said life sentence; and
(5) Includes an exception to the application of the habitual offender provisions that can be invoked
by judges in limited circumstances for individuals who technically meet the prerequisites for
conviction as a habitual offender, but do not fit within the intended focus of the provisions.
- Increased
Department of Correction Costs and State Prison Overcrowding
- The amendments to Chapter 279, §25 broadly expand the class of persons deemed habitual offenders who must serve maximum sentences and eliminate parole for a large subsection of those individuals. This will inevitably and dramatically exacerbate overcrowding and, in turn, increase the Department of Correction’s (DOC) annual operating budget.
- Currently, overcrowding in the DOC averages 143% of design capacity, with the most overcrowded facility at 345%. Absent any legislative changes, the DOC has projected an annual growth of more than 2.5% per year through 2019.
- Additionally, because of the 56% reduction in parole releases in 2011 compared to 2010, absent any legislative changes, the DOC has projected that it will have 550 additional prisoners by the end of 2011. Therefore, without any changes to the existing habitual offender law, at a cost of $46,000 per year for each of the 550 prisoners, the annual cost to taxpayers will be over $25 million.
- Based on data compiled by the Sentencing Commission, approximately 150-250 people could be sentenced under Subsection (b) per year.[1] If each person serves a conservative average of 10 additional years as a result, Subsection (b) alone could cost taxpayers $75-125 million per year once the law has fully taken effect, not including the capital costs associated with building a new prison to house the additional 1,500-2,500 habitual offenders for which DOC will be responsible.
Increased Court and County Jail Costs, Court Delays, and County Jail Overcrowding
- The amendments to Chapter 279, §25 will substantially increase costs of pre-trial jail time, case processing, and trials because defendants facing maximum terms of incarceration as habitual offenders will opt to go to trial rather than plead guilty.
- Similar to DOC facilities, county facilities are already overcrowded, with an average of 142% of design capacity. The larger county facilities are at over 200% of design capacity with the most overcrowded facility at 378%.
- Disproportionate
Punishments
- Chapter 279, §25, as amended, is overly inclusive. Failure to limit applicability of the habitual offender provisions to the most serious offenses makes it a certainty that many will be sentenced to lengthy terms of incarceration in state prison.
- Subsection (a) encompasses all of the 688 felony crimes in Massachusetts. Subsection (b) includes 59 crimes in S.2080 and 55 crimes in H.3818. Over 30 of the 688 felonies carry a maximum of life imprisonment; 24 are included in S.2080 and 22 in H.3818.
- The facts of the crime, the nature of the offense, the history of the individual, and the sentence imposed must all be considered in identifying the worst offenders. Both Subsections (a) and (b) fail to consider the lack of seriousness of the actions required to meet the elements of many offenses deemed “strikes” and prevent consideration of mitigating factors regarding the circumstances of the case and the individual defendant that is necessary for fair and appropriate sentencing.
- No research supports a link between longer prison terms and reduced recidivism. In fact the research is clear that the longer a person is incarcerated, the more difficult it becomes to adjust to the outside world. Coupled with very limited options for employment after a long incarceration, this population is more likely to return to crime. Rehabilitative, training, and work release programs during incarceration, along with parole supervision are vital to prisoners’ stability and reducing recidivism. The DOC only spends 2.4% of its budget on programming. However, individuals sentenced pursuant to Subsection (b) are foreclosed from participation in what few programs exist.
Adopt from S.2080 (Section 46) the Language of Subsection (a) of Chapter 279, §25
- The three criminal convictions qualifying a person as a habitual offender under Subsection (a) can be for any of the 688 felonies in Massachusetts.
- Both S.2080 and H.3818 provide the enhanced penalty of
parole eligibility at 2/3 of the maximum sentence, in contrast to current law,
which provides parole eligibility at 1/2 the maximum sentence.
- Delaying parole eligibility means that prisoners will have to remain in custody longer, increasing overcrowding and the costs of imprisonment.
- H.3818
reduces the length and sentence of the prior offenses from not less than three
years to any length of incarceration
in state prison.
- Expanding the habitual offender designation to the pool of people who receive state prison sentences of less than three years for two prior convictions substantially increases the number of individuals subject to maximum sentences and eligible for parole at 2/3 the sentence, rather than 1/2.
- Subsection (a) of H.3818 is too broad and more costly than Subsection (a) of S.2080.
Adopt from H.3818 (Section 3) the Language of Subsection (b) of Chapter 279, §25
- Subsection (b) of Chapter 279, §25 creates a new class of habitual offenders to target violent offenders convicted three times of certain listed crimes. Both S.2080 and H.3818 provide that all persons convicted as habitual offenders pursuant to Subsection (a) are ineligible for parole, work release, and deduction from their sentences for good conduct.
- S.2080 Subsection (b) provides a list of 59 qualifying crimes, 24 of which carry maximum sentences of life imprisonment. H.3818 Subsection (b) provides a more reasonable list of 55 crimes, 22 of which carry maximum life sentences.
- Under S.2080,
a person needs only to have served at least one
day of incarceration in any facility (county or state) on each of the two
prior convictions. Alternatively, H.3818 requires one day or more in state prison.
- This language means that an individual who has served as little as two days in a county jail may be sentenced from five years to life in prison without parole, depending on the maximum sentence allowed for the third conviction.
- Aside from a sentence of probation that is completed successfully, there is no lesser sentence than one day of incarceration. Because of mental illness, mental disabilities, homelessness, and substance abuse, among other issues, some individuals are unable to successfully complete probation.
- S.2080 ignores a reality faced by many low-income people who cannot post bail: although they are innocent, the prosecutor offers to let them go if they plead guilty to the time that they have already served awaiting trial and, in order to go home, they plead guilty. Many cannot make a $100 or even a $50 bail.
- S.2080 Subsection (b) ensures that some of the lowest level criminals will be sent to state prison to serve mandatory maximum sentences.
Remove Crimes from Subsection (b) of Chapter 279, §25
- Certain crimes in Subsection (b) are not suitable for inclusion based on the lack of seriousness of the actions required to meet the elements of the offenses.
- H.3818 appropriately eliminates the following from the list of qualifying crimes in Subsection (b): c.265, §13H and §13K; c.266, §17 and §18; and c.269, §12F(e).
- Chapter 265,
§13A(b)(ii) and (iii) and c.265, §13F should be removed from subsection (b) because
they allow for conviction based on the acts of assault and battery, absent any
injury, and simple assault.
- The only proof required to convict a person of assault and battery is that the assailant committed an intentional, unconsented touching, directly or indirectly. There is no injury or intent to harm required.
- To be convicted for simple assault, there must only be an attempted or threatened battery (touching). There is no physical contact involved, no intent to harm required, and no requirement that the individual assaulted was put in fear.
Allow Parole Eligibility for Subsection (b) Habitual Offenders after Serving 25 Years of a Life Sentence
- Subsection (b) calls for life without parole for
persons convicted of over 20 crimes as their third offense. The
difference in cost for taxpayers between life without parole and release after
25 years is approximately $900,000 per prisoner.[2]
- Even the notorious California Three Strikes law permits parole after 25 years.
- With more prisoners serving life without parole and other lengthy mandatory sentences, the number of elderly prisoners in the DOC will increase significantly. The National Institute of Corrections estimates that the cost of housing elderly prisoners is almost double that of younger prisoners due to their increased medical needs; annual medical expenses for elderly prisoners can reach over $100,000.
- It is a waste of taxpayer money to incarcerate prisoners for life if they have not committed murder and are no longer dangerous.
Include an Exception to the Application of Habitual Offender Provisions
- Both S.2080
and H.3818 fail to provide an exception to the application of the habitual
offender provisions for those individuals who technically meet the
prerequisites, but do not fit within the intended focus of the provisions.
- As an example, California law permits judges to vacate one or more of the prior convictions from consideration as strikes “in furtherance of justice” if the judge determines that the nature and circumstances of the defendant’s present felonies and prior convictions, and the particulars of his background, character, and prospects, make the defendant outside of the spirit of the habitual offender scheme, in whole or in part.
- Putting individuals not appropriately deemed habitual offenders in prison based on a uniformly applied rule is wasteful and not in the public interest.
Completed: December 9, 2011
Updated: January 17, 2012
[1] See Survey of Sentencing Practices Report, available at http://www.mass.gov/courts/admin/sentcomm.html, assuming that persons with a third strike would be in Category D or E, and that all of Levels 7-9 and 50% of Level 6 crimes would count as a strike.
[2] Based on a conservative estimate that prisoners serving mandatory life sentences, rather than 25 years, will serve an additional 20 years in prison and the DOC’s average cost per prisoner of $46,000 per year.
Skyrocketing Costs Caused by S.2080[1] and H.3818
“Three Strikes” Provisions in S.2080 & H.3818
The amendments to the habitual offender statute in S.2080 and H.3818, or “three strikes” provisions, will dramatically increase the length of prison sentences and will overwhelm the criminal justice system.
- The
Department of Correction Already Faces a Budgetary Crisis
- The number of prisoners in Department of Correction (DOC) custody is now at an all-time high. Overcrowding averages 143% of design capacity, with a unit at MCI Framingham at 345%. The DOC has projected annual prison population growth of 2.7% from 2009 to 2019. Due to a 56% reduction in parole releases in 2011 as compared to 2010, the DOC also projected in December 2011 that it would have an additional 550 prisoners by the end of the year. Applying the DOC’s average annual cost of approximately $46,000 to house a prisoner, the cost to taxpayers resulting from the drop in parole releases is over $25 million per year (550 people x $46,000 per year). This does not include the capital costs of new prison construction. Therefore, even without the passage of S.2080 and H.3818, the Commonwealth is facing a rapidly-increasing DOC budget that already stands at over $530 million for fiscal year 2012.
- Subsection
(b) Alone of the “Three Strikes” Provisions Could Cost $75-125 Million Per Year
- There are currently over 5,000 of the DOC’s 11,800 prisoners serving sentences for one of the listed crimes in Subsection (b) of S.2080 and H.3818. Each year about 1,500 new prisoners are sentenced to state prison for a Subsection (b) crime. Based on an analysis of data in the Massachusetts Sentencing Commission’s “Survey of Sentencing Practices FY 2010,” 150-250 of these prisoners could be sentenced under Subsection (b) of Section 46, some to life without parole.[2]
- Even if each prisoner ‘only’ serves an average of 10 additional years when sentenced pursuant to Subsection (b), this will result in 1,500-2,500 more DOC prisoners once the law has fully taken effect. Therefore, Subsection (b) could cost taxpayers between $75-125 million per year once the law has fully taken effect, not including the capital costs of building new prisons required to accommodate the expanding prison population.
Other Costly Provisions Found Only in S. 2080
- Mandatory Post-Release Supervision Could Cost Approximately $6-11.5 Million Per Year
- Mandatory post-release supervision parolees can be
re-incarcerated for violating a condition of supervision based on criminal
or non-criminal conduct. If,
every year, 15% of the 1,700 people placed on mandatory post-release
supervision are re-incarcerated for 2 months, this will result in additional
costs of approximately $2 million per
year (255 people x $7,600 cost of 2 months).
- The Elimination of Parole Eligibility at 15 Years for Those Serving Multiple Life Sentences Could Cost Approximately $9 Million Per Year
- Roughly 1,700 people are released from DOC custody each year at the conclusion of their sentences without supervision. If all 1,700 people were subject to mandatory post-release supervision for 1 year, half of the maximum 2 year term permitted, it would cost taxpayers approximately $8.5 million per year based on the Parole Board’s estimate that the annual cost of supervising one parolee is $5,000 (1,700 people x $5,000 annual cost).
- 39 new parole officers would need to be hired to supervise 1,700 people, using the Parole Board’s 2009 report setting parole officer caseloads at 44 parolees per officer.
- People subject to probation supervision as part of their sentence will have both probation and parole officers, causing duplicative and wasteful overlap.
- If 10 of the 32 people serving second degree life sentences are serving multiple life sentences and must serve an additional 20 years due to the elimination of parole eligibility, this would result in an additional 200 people in DOC custody once the law has fully taken effect.[3] As such, the elimination of parole eligibility for people serving multiple second degree life sentences will cost the Commonwealth approximately $9.2 million per year once the law has fully taken effect (10 people serving on average 20 extra years x $46,000 per year).
- Between 2000 and 2009, the group of Massachusetts prisoners age 65 and older increased by 84%. This trend of aging inmates is sure to continue as sentences get longer and longer. Older prisoners require more costly medical care, often at least $100,000 per prisoner per year. Keeping older prisoners, who are statistically least likely to reoffend, incarcerated without any possibility of parole will dramatically increase costs as the prison population ages.
- Changing Parole Eligibility for Prisoners Serving Second Degree Life Sentences from 15 Years to a Court-Determined Parole Eligibility Date of Between 15 and 25 Years Could Cost Approximately $7 Million Per Year
- In general, Massachusetts taxpayers will pay nearly half a million dollars for each prisoner sentenced to 10 extra years (10 years x $46,000).
- Assuming that changing parole eligibility from 15 years to 15-25 years would entail that the average offender serves 5 more years, the change would give rise to 160 additional people in DOC custody once the law has fully taken effect. The resulting cost would be approximately $7.4 million per year once the law has fully taken effect (32 people serving an average of 5 extra years x $46,000 per year).
Recommendations – To Reduce Costs, the Conference Committee Should:
(1) Adopt H.3818’s version of Subsection (b) of Chapter 279, §25;
(2) Adopt S.2080’s version of Subsection (a) of Chapter 279, §25;
(3) Remove less serious crimes from Subsection (b) of Chapter 279, §25;
(4) Make habitual offenders sentenced to life imprisonment pursuant to Subsection (b) eligible for parole after serving 25 years;
(5) Include an exception to the habitual offender provisions that can be used by judges in limited circumstances to remove a prior conviction from consideration as a “strike” in the interests of justice;
(6) Eliminate any provision calling for mandatory-post release supervision;
(7) Adopt the reductions to the mandatory minimum sentences provided in S.2080 Sections 6-20;
(8) Adopt the earned good time provision in S.2080 Sections 24, 25, 26 to help reduce overcrowding; and
(9) Adopt the medical parole provision in S.2080 Section 23.
Completed: December 9, 2011
Updated: January 17, 2012
[1] See “Summary of S.2080 with Cost Information” for a more detailed analysis of the costs associated with S.2080.
[2] See Sentencing Commission, “Survey of Sentencing Practices FY 2010,” Figure 1: Sentencing Guidelines Grid at p.3, Table 24: Grid Cell Assignment by Court Department at p.37; Criminal History Group at p.70; Selecting a Governing Offense, p.71 (explaining that the statistics “may underestimate the number of defendants in the highest criminal history group”); and Table 41: Governing Offense by Grid Cell Assignment and Incarceration Status, All Courts, pp.86-87, available at http://www.mass.gov/courts/admin/sentcomm/fy2010survey.pdf. The range of 150-250 was estimated by assuming that all people convicted of a third strike would be in criminal history group D or E, and that all crimes of Levels 7-9 and 50% of Level 6 crimes would count as strikes. The range also includes a rough estimate of the number of people who have served at least one day in county facilities for their previous two “strikes,” under Subsection (b) of S.2080.
[3] The DOC reports that 32 people received second degree life sentences in 2010. Department of Correction, “Prison Population Trends 2010,” August 2011, p.21, available at http://www.mass.gov/eopss/docs/doc/research-reports/pop-trends/prison-pop-trends-2010.pdf.
Crimes that Qualify as “Strikes” in Subsection (b) of M.G.L. c. 279, §25
as Proposed by S.2080 and H.3818[1]
Brief Explanation of Common Terms:
- Assault and Battery - Anyone can be convicted of assault and battery if they intentionally touch another person, however slightly, without that person’s consent. The physical contact may be made directly or indirectly. There is no injury or intent to harm required.
- Assault - Anyone can be convicted of assault if they attempt or threaten to commit an assault and battery, as defined above. There is no physical contact involved, no intent to harm required, and no requirement that the individual assaulted was put in fear.
- Dangerous Weapon - There are two categories of dangerous weapons: things that are dangerous per se and things that appear to be reasonably capable of inflicting bodily harm as used. Dangerous weapons per se are objects commonly understood to be weapons, such as firearms and knives. However, the second category permits virtually any ordinarily innocuous object to be considered a dangerous weapon based on the circumstances. Examples of objects considered dangerous weapons include: a shoe on a foot, a large ring on a hand, hot coffee, a phone, a stone, a hairbrush, a dog, a door, and the ground.
Chapter 140:
- §131M
- Sale, transfer, or
possession of assault weapon or large capacity feeding device not lawfully
possessed on September 13, 1994
- Punishment: First offense maximum 10 years in state prison, minimum 1year. Second offense maximum 15 years in state prison, minimum 5 years.
Chapter 265:
- §1- Murder
- Punishment: Maximum life in state prison.
- §13 -
Manslaughter
- Punishment: Maximum 20 years in state prison or 2½ years in a house of correction (HOC).
- §13½
- Manslaughter while
operating a motor vehicle
- Punishment: Maximum 20 years in state prison, minimum 5 years.
- §13A(b) - Assault and assault and battery
- Description: (i) Assault and battery on another causing serious bodily injury; (ii) Assault or assault and battery on another knowing or having reason to know that the person is pregnant with no touching or injury required; or (iii) Assault or assault and battery knowing that the person has an active restraining order or no contact order against the defendant with no touching or injury required.
- Punishment: Maximum 5 years in state prison or 2½ years in house of correction (HOC).
- §13B - Indecent assault and battery on a child under
14
- Description: Intentional touching of a child under 14 years old that “the common sense of society would regard as immodest, immoral, and improper.” This can include the touching of the mouth, abdomen, buttocks, thighs, breasts, and pubic area, whether over clothing or under clothing. There is no requisite age difference between the victim and the defendant. Consent is not a defense. Defendant’s reasonable belief that the victim was fourteen or older is immaterial. There is no physical injury required.
- Punishment: Maximum 10 years in state prison or 2½ years in HOC.
- §13B½
- Indecent assault and
battery on a child under the age of 14 during commission of certain
offenses or by mandated reporters
- Description: Indecent assault and battery on a child under 14 years committed (a) during the commission of crimes including burglary, kidnapping, robbery, and assault and battery with a dangerous weapon; or (b) by a defendant who is a mandatory reporter.
- Punishment: Maximum life in state prison, minimum 10 years.
- §13B¾ - Indecent assault and battery on a child under the age of 14 by
certain previously convicted offenders
- Description: Indecent assault and battery on a child under 14 years committed by a defendant previously convicted or adjudicated delinquent as a juvenile of a sexual assault.
- Punishment: Maximum life in state prison, minimum 15 years.
- §13F
- Assault and battery
and indecent assault and battery on a person with an intellectual
disability
- Description: Assault and battery on a person defendant knows to have an intellectual disability with no requirement of injury; AND indecent assault and battery on a person defendant knows to have an intellectual disability.
- Punishment: For assault and battery first offense maximum 5 years in state prison or 2½ years in HOC; subsequent offense maximum 10 years in state prison. Indecent assault and battery first offense maximum 10 years in state prison, minimum 5 years; subsequent offense minimum 10 years in state prison.
- §13H[2]- Indecent assault and battery on a person 14
years or older
- Description: Indecent assault and battery on a person 14 years old or older. This can include the touching of the mouth, abdomen, buttocks, thighs, breasts, and pubic area, whether over clothing or under clothing. There is no injury required.
- Punishment: Maximum 5 years in state prison, maximum 2½ in house of correction. However, if the victim is elderly or has a disability, maximum 10 years in state prison or 2½ years in HOC; subsequent offense maximum 20 years in state prison.
- §13J
- Assault and battery on
a child
- Description: Assault and battery of a child causing bodily injury; and a defendant caring for a child “wantonly or recklessly” allowing bodily injury to that child. Proving the wanton or reckless conduct does not require any proof of who actually hurt the child or how it occurred; it can be proven by inference that an ordinary person would have recognized that the child was being exposed to bodily injuries by their acts or omissions.
- Punishment: Assault and battery causing bodily injury maximum 5 years in state prison or 2½ years in HOC; substantial bodily injury maximum 15 years in state prison or 2½ years in HOC. Wanton or recklessly permitting bodily injury maximum 2½ years in HOC; substantial bodily injury maximum 5 years in state prison, 2½ years in HOC.
- §13K[3]
- Assault and battery
upon an elderly or disabled person
- Description: Assault and battery of an elderly or disabled person: (a½) causing no bodily injury; (b) causing bodily injury; or (c) causing serious bodily injury; AND a caretaker of an elderly or disabled person “wantonly or recklessly”: (d) allowing bodily injury to that person; or (d½) committing or allowing abuse or neglect of that person; or (e) allowing serious bodily injury to that person.
- Punishment: (a½) Maximum 3years in state prison or 2½ years in HOC; (b) Maximum 5 years in state prison or 2½ years HOC; (c) Maximum 10 years in state prison or 2½ years HOC; (d) Maximum 5 years in state prison or 2½ years in HOC; (d½) Maximum 3 years in state prison or 2½ years HOC; (e) Maximum 10 years in state prison or 2½ in HOC.
- §14 - Mayhem
- Description: Assault and battery that is intentional, unjustified, and committed with the reasonable appreciation by defendant that a disabling or disfiguring injury would result.
- Punishment: Maximum 20 years in state prison.
- §15 - Assault with intent to murder or maim
- Description: Attempted or completed battery committed with the intent to murder or maim.
- Punishment: Maximum 10 years in state prison or 2½ years in HOC.
- §15A(a)
and (c) - Assault and
battery with dangerous weapon; victim 60 years or older
- Description: (a) Assault and battery by means of a dangerous weapon on a person 60 years or older with no requirement of injury or intent to injure; (c) Assault and battery with dangerous weapon: (i) causing serious bodily injury; (ii) on a person defendant knows or has reason to know is pregnant with no requirement of injury or intent to injure; (iii) on a person defendant knows has a restraining or no contact order against him with no requirement of injury or intent to injure; (iv) by a defendant 17 years of age or older on a child under 14 years with no requirement of injury or intent to injure. The broad definition of dangerous weapon applies to each subsection described above.
- Punishment: (a) First offense maximum 10 years in state prison or 2½ years in HOC, subsequent offense minimum 2 years; (c) Maximum 15 years in state prison or 2½ in HOC.
- §15C(b)
- Assault and battery by means of a hypodermic needle
- Punishment: (b) Maximum 15 years in state prison or 2½ years in HOC.
- §15D[4] - Assault and battery by means of discharging a
firearm
- Punishment: (a) First offense maximum 15 years in state prison or 2½ years in HOC; (b) Subsequent offense maximum 20 years in state prison, 10 years minimum.
- §16 - Attempt to murder
- Description: Attempt to commit murder by poisoning, drowning, or strangling or by any means not constituting an assault with intent to commit murder.
- Punishment: Maximum 20 years in state prison or 2½ years in HOC.
- §17 - Armed robbery
- Description: Assaulting and robbing or taking money or other property from the person of another while armed with a dangerous weapon. There is no requirement of actual force, physical contact, or injury. The broad definition of dangerous weapon applies. The weapon the defendant possesses need not have been used during the incident and the victim need not be aware of any weapon.
- Punishment: Maximum life in state prison. Minimum 5 years if committed while masked or while armed with a firearm. Subsequent offense minimum 10 years if masked and minimum 15 years with a firearm.
- §18 - Armed assault with intent to rob or murder
- Description: Assaulting another while armed with a dangerous weapon with the intent to rob or murder them. The intended crime is not completed. There is no requirement of actual force, physical contact, or injury. The broad definition of dangerous weapon applies. The weapon need not have been used. Intent may be proven by inference alone.
- Punishment: (a) If committed on a person over 60years old, maximum 20 years in state prison, minimum of 10 years if committed with a firearm; (b) Otherwise, maximum 20 years in state prison, minimum of 5 years if committed with a firearm.
- §18A - Assault in dwelling house with dangerous
weapon
- Description: Entering a dwelling house while armed with a dangerous weapon and therein assaulting another with intent to commit a felony. There is no requirement of actual force, physical contact, or injury. The broad definition of dangerous weapon applies. The weapon need not have been used in the incident, only possessed by the defendant.
- Punishment: Maximum life in state prison, minimum 10 years.
- §18B - Use of firearm while committing a felony
- Description: Commission or attempted commission of a crime that can, per statute, be punished by imprisonment in state prison while in possession of a firearm. The weapon need not have been used, only possessed.
- Punishment: In addition to the punishment for the underlying offense, minimum of 5 years in state prison if in possession of a firearm and minimum of 10 years if firearm is a large capacity weapon. Subsequent offense minimum 20 years or 25 years if in possession of a large capacity weapon.
- §18C
- Armed home invasion
- Description: Knowingly entering or remaining in a dwelling place of another while armed with a dangerous weapon knowing or having reason to know that one or more persons are present or remaining and using force, threatening imminent use of force, or injuring any person in the dwelling. The broad definition of dangerous weapon applies. The weapon need not have been used, only possessed.
- Punishment: Maximum life in state prison, minimum 20 years.
- §21 - Stealing by confining or putting in fear
- Description: Confining, injuring, threatening to injure, or putting in fear any person for the purpose of stealing from a bank, vault, or other depository of money, bonds, or valuables. Generally, bank robbery.
- Punishment: Maximum life in state prison.
- §21A - Carjacking
- Description: Assaulting, confining, maiming, or putting any person in fear for the purpose of stealing a motor vehicle, whether successfully or unsuccessfully.
- Punishment: If unarmed, maximum 15 years in state prison or 2½ years in HOC. If armed with dangerous weapon, maximum 20 years in state prison, minimum 1year in HOC. If armed with firearm, minimum 5 years in state prison.
- §22 - Rape
- Description: Sexual intercourse committed by means of physical force, constructive force, or threats of bodily harm and without consent.
- Punishment: Maximum 20 years in state prison. If victim sustained serious bodily injury or was subjected to other felonious conduct during the same criminal episode, maximum life in state prison. If committed with a firearm, minimum 10 years. Subsequent offense minimum 15 years.
- §22A - Rape of child
- Description: Sexual intercourse with a child under 16 years old committed by means of force, constructive force, or threats of bodily harm and without consent.
- Punishment: Maximum life in state prison.
- §22B - Rape of child during commission of certain
other offenses or by use of force
- Description: (a) Rape of child committed where victim sustained serious bodily injury; committed during the commission of crimes including burglary, kidnapping, robbery, and assault and battery with a dangerous weapon; (b) Rape of child resulting in substantial bodily injury; (c)....
- Punishment: Maximum life in state prison, minimum 15 years.
- §22C - Rape of a child through use of force by certain
previously convicted offenders
- Description: Rape of child under 16 years committed by a defendant previously convicted or adjudicated delinquent as a juvenile of a sexual assault.
- Punishment: Maximum life in state prison, minimum 20 years.
- §23A - Statutory rape aggravated by age difference or
when committed by mandatory reporter
- Description: Sexual intercourse with a child under 16 years old committed by a mandatory reporter, when the victim is under 12 and the defendant is more than 5 years older, or when the victim is between 12 and 16 years of age and the defendant is more 10 years older.
- Punishment: Maximum life in state prison, minimum 10 years.
- §23B - Statutory rape by certain previously convicted
offenders
- Description: Sexual intercourse with a child under 16 years old committed by a defendant previously convicted or adjudicated delinquent as a juvenile of a sexual assault.
- Punishment: Maximum life in state prison, minimum 15 years.
- §24 - Assault with intent to commit rape
- Description: Assault on a person with a specific intent by defendant at the time of the assault to rape that person. Rape not accomplished. There is no requirement of actual force, physical contact, or injury. Intent can be proven by inference alone.
- Punishment: Maximum 20 years in state prison or 2½ years in HOC, with a subsequent offense maximum of life. If committed with a firearm minimum 5 years, with a subsequent offense minimum of 20 years.
- §24B - Assault of child with intent to commit rape
- Description: Assault on a child under 16 years old with the specific intent to rape the child.
- Punishment: Maximum life in state prison, subsequent offense by defendant over 18years old minimum 5 years. If committed with a firearm minimum 10 years, subsequent offense by defendant over 18 years old minimum 15 years.
- §26 - Kidnapping
- Description: Forcibly or secretly confining another person against his will or forcibly carrying or sending a person out of this commonwealth with the specific intent to do so, or attempting to do so.
- Punishment: Maximum 10 years in state prison or 2 years in HOC. If committed on a child under 16 years old, maximum 15 years. If committed with the intent to extort money, maximum life in prison. If committed with a firearm minimum 10 years in state prison, and with the intent to extort money minimum 20 years....
- §26B - Drugging persons for kidnapping
- Description: Administering or causing to be taken any drug, matter or thing with intent to stupefy or overpower by a person with the intent to kidnap the person.
- Punishment: Maximum life in state prison, minimum 10 years. If committed with the intent to extort money, minimum 15 years.
- §26C - Enticement of a child under 16 years
- Description: Luring, inducing, or soliciting a child under 16 years old, or someone defendant believes to be under 16 years, to enter, exit, or remain within a vehicle, building, or outdoor space with the intent to sexually assault or use force on the child.
- Punishment: Maximum 5 years in state prison or 2½ years in HOC.
- §28 - Use of poison with intent to injury
- Description: Mingling poison with food, drink or medicine with intent to kill or injure another person, or willfully poisoning any spring, well or reservoir of water with such intent.
- Punishment: Maximum life in state prison.
- §39(b) - Assault and battery for the purpose of
intimidation
- Description: (b) Assault or battery resulting in bodily injury committed with the intent to intimidate because of a person's race, color, religion, or national origin.
- Punishment: Maximum 5 years in state prison. If committed with a firearm, maximum 10 years or 2½ years in HOC.
- §43(b)
or (c) - Stalking
- Description: (b) Stalking in violation of a restraining or no contact order; (c) Subsequent offense.
- Punishment: (b) Maximum 5 years in state prison, minimum 1year; (c) Maximum 10 years in state prison, minimum 2 years.
Chapter 266
- §1 - Burning a dwelling house
- Description: Willfully and maliciously setting fire to, burning, or causing to be burned a dwelling house or an adjacent building or aiding in the burning, regardless of whether the dwelling house is occupied or is the property of the defendant.
- Punishment: Maximum 20 years in state prison or 2½ years in HOC.
- §14 - Armed burglary
- Description: Breaking and entering a dwelling house of another in the nighttime with the intent to commit a felony, a person being lawfully therein, while armed with a dangerous weapon or making an actual assault on a person lawfully therein. The broad definition of dangerous weapon applies.
- Punishment: Maximum life in state prison, minimum 10 years. If committed with a firearm, minimum 15 years. Subsequent offense minimum 20 years.
- §17[5]
- Entering without
breaking in the night, breaking and entering in the daytime
- Description: Entering in the nighttime or breaking and entering in the daytime a building, ship, vessel, or vehicle, with intent to commit a felony, the owner or any other person lawfully therein being put in fear.
- Punishment: Maximum 10 years. If committed with a firearm, minimum 5 years.
- §18[6]
- Entering in the
nighttime a dwelling house or breaking and entering in the daytime
- Description: Entering in the nighttime a dwelling house or breaking and entering in the daytime a building, ship or motor vehicle or vessel, with intent to commit a felony, no person lawfully therein being put in fear.
- Punishment: Maximum 10 years in state prison or 2 years in HOC.
- §102 - Possession of incendiary device or hoax device
- Description: (a) Possession of any substance or material that, alone or in combination, could be used to make an explosive or incendiary device or a chemical, biological, or nuclear weapon with the intent to make such a device; (b) Possessing or causing another to possess or place any hoax explosive or destructive device with the intent that such hoax weapon will be used to cause anxiety, unrest, fear or personal discomfort to any person; (c) Possession of an explosive or any destructive or incendiary device or substance.
- Punishment: (a) Maximum 10 years is state prison, minimum 5 years or maximum 2½ years in HOC; (b) Maximum 5 years in state prison or 2½ years in HOC; (c) Maximum 20 years in state prison, minimum 10 years or maximum 2½ years in HOC.
- §102A - Throwing, launching, or placing incendiary
device
- Description: Throwing, launching, or otherwise placing an explosive or a destructive or incendiary device or substance with the intent to cause fear, panic or apprehension in any person; or to ignite, explode or discharge such explosive or such destructive or incendiary device or substance; or to release or discharge a chemical, biological or nuclear weapon.
- Punishment: Maximum 25 years in state prison, minimum 10 years or maximum 2½ years in HOC.
- §102B - Malicious explosion
- Description: Willfully discharging or igniting a destructive or incendiary device or substance.
- Punishment: Maximum 25 years in state prison, minimum 15 years.
- §102C - Biological, chemical, or nuclear weapon or
delivery system
- Description: Knowingly developing, producing, acquiring, transporting, possessing, placing, or using any biological, chemical or nuclear weapon or delivery system, with the intent to cause death, bodily injury or property damage.
- Punishment: Maximum 25 years in state prison or 2½ years in HOC.
Chapter 269
- §10 - Carrying dangerous weapons
- Description: Knowingly possessing or having under control in a vehicle (a) a firearm without a license to carry firearms in that manner in effect; (b) a knife with a blade over 1½ inches, a knife having any automatic spring release, a switch blade, brass knuckles, nunchaku, a throwing star, etc; (c) a machinegun or a sawed-off shotgun; (d) subsequent offenses....
- Punishment: (a) Maximum 5 years in state prison, minimum 2½ years or maximum 2½ years in HOC, minimum 18 months; (b) Maximum 5 years in state prison, minimum 2½ years or maximum 2½ years in HOC, minimum 6 months; (c) Maximum life in state prison, minimum 2½ years;
(d) Second offense maximum 7 years in state prison, minimum 5 years, third offense maximum 10 years, minimum 7 years, fourth offence maximum 15 years, minimum 10 years....
- §10E - Firearms sales, distribution, and transfers
- Description: Knowingly or intentionally distributing, selling, or transferring possession of a quantity of firearms, except as provided by law.
- Punishment: (1) From 3 to 10 firearms maximum 10 years in state prison, minimum 3 years; (2) From 10 to 20 firearms maximum 10 years, minimum 5 years; (3) 20 or more firearms maximum life, minimum 10 years.
- §12F(e)[7] - Possession or placement of cutting device,
prohibited weapon in airport secure areas
- Description: (b) Occupying or attempting to occupy a secure area of an airport or airplane cabin knowingly in possession of and concealing a cutting device or prohibited weapon without a license; (c) entering or occupying or attempting to enter of occupy said area said weapons with the intent to commit a felony; (d) placing or attempting to place said weapons in said areas.
- Punishment: (b) Maximum 5 years in state prison or 2½ years in HOC; (c) Maximum 10 years in state prison or 2 years in HOC; (d) Maximum 10 years in state prison or 2½ years in HOC
Chapter 272
- §3 - Drugging person for sexual intercourse
- Description: Administering of causing to be a taken by a person any drug with the intent to stupefy or overpower such person in order to have sexual intercourse.
- Punishment: Maximum life in state prison, minimum 10 years.
- §4A - Inducing minor into prostitution
- Description: Inducing or knowingly aiding in the inducement of a minor into prostitution.
- Punishment: Maximum 5 years in state prison, minimum 3 years.
- §13 - Detaining or drugging to detain a person in
place for prostitution or aiding therein
- Description: Illegally detaining, attempting to detain, or aiding in detaining or providing or aiding in providing any drug or liquor in order to detain a person in a place of prostitution.
- Punishment: Maximum 5 years in state prison or maximum 2½ years in HOC, minimum 1year.
- §17 - Incest
- Description: Marriage, sexual intercourse, or sexual activities between persons with degrees of consanguinity.
- Punishment: Maximum 20 years in state prison, 2½ years in HOC.
- §29A - Posing or exhibiting
child under 18 in state of nudity or sexual conduct
- Punishment: Maximum 20 years in state prison, minimum 10 years.
- §29B - Knowingly disseminating pornography depicting
child under 18
- Punishment: Maximum 20 years in state prison, minimum 10 years.
- §29C - Knowingly possessing pornography depicting
child under 18
- Punishment: First offense maximum 5 years in state prison or 2½ years in HOC. Second offense minimum 5 years. Third offense minimum 10 years.
- §35A - Unnatural and lascivious acts with child under
16
- Punishment: Maximum 5 years in state prison or 2½ years in HOC. Subsequent offense by a defendant over 18 years old minimum 5 years.
- §53A(b) – Soliciting child prostitute under the age of
14 with the intent to engage in sexual conduct
- Punishment: Maximum 10 years in state prison or 2½ years in HOC
Completed: December 14, 2011
Updated: December 20, 2011
[1] This list includes all of the crimes incorporated into Chapter 279, §25(b) by both the Senate (S.2080) and House (H.3818) bills. Discrepancies between the statutory provisions included in the bills are clarified by footnote. Descriptions of crimes are provided only where the nature of the crime is not apparent from its name or further information regarding the actions and results required for conviction is helpful.
[2] Chapter 265, §13H is included in S.2054. It is not included in H.3818.
[3] S. 2054 includes the entirety of Chapter 265, §13K, while H. 3818 appropriately limits inclusion to subsections (b) and (c) requiring intentional infliction of injury by the defendant.
[4] Chapter 265, §15D is a new crime created by S. 2054.
[5] Chapter 266, §17 is included in S.2054. It is not included in H.3818.
[6] Chapter 266, §18 is included in S.2054. It is not included in H.3818.
[7] Chapter 269, §12F(e) is included in S.2054. It is not included in H.3818.
Use of the Habitual Offender Law
Under the current law, there are approximately 8 people convicted as habitual offenders each year. Although District Attorneys’ offices presently choose not to indict every defendant who qualifies for indictment as a habitual offender, a number of reasons related to the language of the statute and the goals of the prosecution can account for this exercise of discretion. However, it is unreasonable to maintain that the number of convictions and the overall prison population will remain the same if the habitual offender provisions proposed in S.2080 or H.3818 are adopted. In both bills, the provisions delay and eliminate parole eligibility, necessarily resulting in longer sentences, and greatly expand the class of people who can be indicted as habitual offenders. Moreover, the increased notoriety and politicization of the “three strikes” law will create more public pressure to pursue habitual offender indictments and convictions.
- Not All Qualifying Defendants Are
Convicted as Habitual Offenders Under the Current Law
- District Attorneys’ offices use the habitual
offender law sparingly due, in part, to the current language of Chapter 279,
§25.
- The habitual offender law applies to defendants who have been previously twice convicted of felonies and served at least 3 years in state prison for each prior conviction. The indictment is a sentencing enhancement, requiring that the defendant receive the maximum sentence permitted by law for the third offense and be parole eligible after serving 1/2 of the maximum sentence.
- As a result, the prosecution may often choose not to indict a defendant as a habitual offender because sentencing in accordance with Chapter 279, §25 could result in earlier parole eligibility.
- District Attorneys’ offices use the habitual
offender law sparingly due, in part, to the current language of Chapter 279,
§25.
EXAMPLE: Defendant’s third offense is armed assault with the intent to rob. If convicted as a habitual offender, the judge must sentence defendant to 20 years with parole eligibility at 10 years. Otherwise, the prosecution can request and the judge can impose a sentence of, for instance, 19-20 years in state prison, making defendant eligible for parole release after serving 19 years.
- Habitual offender indictments are used as a tool by the prosecution to compel defendants to forgo a trial and plead guilty in exchange for dismissal of the habitual offender indictment.
- The New Law Will Result in More Habitual
Offender Convictions
- If the habitual offender provisions proposed in S.2080 and H.3818 become law, District Attorneys will be under pressure from constituents made aware of the law – due to the work of “tough on crime” organizations, victims’ advocates, and greater media coverage – to indict people as habitual offenders at every opportunity.
- The changes to parole eligibility in the proposed habitual
offender provisions create a greater incentive for District Attorneys’ offices to
pursue habitual offender indictments and convictions.
- In both bills, defendants indicted pursuant to Subsection (a) are parole eligible after serving 2/3 of the maximum sentence. If the indictment is pursuant to Subsection (b), defendants are not eligible for parole, meaning that they are sentenced to the maximum for the third offense as a mandatory term.
EXAMPLE: Defendant’s third offense is armed assault with the intent to rob. If convicted as a habitual offender, the judge must sentence defendant to 20 years. If defendant was indicted under Subsection (a), he would be parole eligible after serving 13 and 1/3 years. Under Subsection (b), he would have to serve the entire 20 years with no sentence reductions for good behavior.
- The habitual offender provisions proposed in S.2080
and H.3818 apply to more people.
- Under S.2080: Subsection (a) mirrors current law. Subsection (b) applies to people charged with one of 59 listed crimes if they have, on 2 prior occasions, been convicted of listed crimes and served 1 day or more in county jail or state prison. Therefore, Subsection (b) of S.2080 extends mandatory maximum state prison sentences to many low-level offenders, including people who have never been indicted before, have never been to state prison before, and may have served as little as 2 days in county jail prior to being sentenced as a habitual offender.
- Under H.3818: Subsection (a) applies to people charged with any felony who have 2 prior convictions for which they received sentences of 1 year or more in state prison, rather than the 3 years currently required. Subsection (b) applies to people charged with one of 55 listed crimes if they have, on 2 prior occasions, been convicted of listed crimes and served 1day or more in state prison. While not as overinclusive as S.2080 Subsection (b), H.3818 broadly increases the number of people who can be indicted as habitual offenders as well.
Completed: January 18, 2012