Re: Conference Committee on House Bill 4043 and Senate Bill 2200

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1 Criminal Justice Policy Program Harvard Law School Austin Hall Massachusetts Avenue Cambridge, MA Charles Hamilton Houston Institute for Race & Justice Harvard Law School 1557 Massachusetts Ave. Lewis Hall 203 Cambridge, MA Hon. Claire Cronin, House Chair, Joint Committee on the Judiciary Hon. William Brownsberger, Senate Chair, Joint Committee on the Judiciary Hon. Ronald Mariano, House Majority Leader Hon. Cynthia Creem, Assistant Senate Majority Leader Hon. Sheila Harrington, Ranking Minority Member, Joint Committee on the Judiciary Hon. Bruce Tarr, Senate Minority Leader February 8, 2018 Re: Conference Committee on House Bill 4043 and Senate Bill 2200 Dear Members of the Criminal Justice Conference Committee, Thank you for your hard work to pass comprehensive criminal justice reform in the Commonwealth of Massachusetts. Our organizations, the Criminal Justice Policy Program and the Charles Hamilton Houston Institute are based at Harvard Law School and work on criminal justice reform. The Criminal Justice Policy Program advises governments implementing reforms targeted at criminal justice debt, or fees, fines, and other financial penalties charged to individuals in the criminal justice system. The Charles Hamilton Houston Institute facilitates dialogue between practitioners and scholars to work towards equal access to opportunities for all. Across the country, we have seen the devastating consequences for individuals and communities of ever-increasing criminal justice debt. When individuals are unable to pay, they often face additional monetary sanctions, supervision consequences, driver s license revocation, warrants, and incarceration. Last year, the Senate Post Audit and Oversight Committee released Fine Time Massachusetts: Judges, Poor People, and Debtors Prison in the 21st Century ( Fine-Time Report ), a report showing that Massachusetts residents face many of these very problems. The report detailed Massachusetts s two-tiered criminal justice system, in which individuals too poor to pay their fines and fees end up in the state s jails. The Senate and House have both included reforms responding to this report s findings in the criminal justice bills before this Committee. In addressing criminal justice debt reform, Massachusetts will join states across the country in trying to end the criminalization of poverty. In the wake of Michael Brown s killing in Ferguson, Missouri, the Department of Justice issued a report that found that the municipality was disproportionately imposing 1

2 fines and fees on people of color. These fines and fees were entrapping people in poverty and leading to jail time for many. Since the Ferguson report raised awareness of these issues, states have mobilized to enact criminal justice debt reform through their legislatures and courts. For example, this past May, Texas enacted legislation providing judges with tools to take into account an individual s financial resources at sentencing such as a requirement for upfront ability-to-pay determinations, and flexibility to impose payment plans and community service. Oklahoma and Louisiana also recently passed legislative reforms, and many states, including Arizona, Ohio, Michigan, and Missouri, have enacted judicial rule changes. While both the Massachusetts Senate and House bills effectuate long-held Supreme Court precedent and include additional reforms to end modern-day debtors prisons, the bills also have important differences. We respectfully submit the following recommendations to the Criminal Justice Conference Committee as you reconcile the bills. Prohibit incarceration for inability to pay criminal justice debt. In 1983, the Supreme Court held that judges cannot incarcerate defendants for non-payment of criminal justice debt unless an individual willfully chose not to pay. Bearden v. Georgia, 461 U.S. 660, 668 (1983). The House and the Senate codify the constitutional standard set forth in Bearden by prohibiting the imprisonment of an individual if the individual can show that they cannot pay without imposing a substantial financial hardship on them or their family. This is a helpful reminder of this Constitutional standard. House Bill 37, Ch (a); Senate Bill 188, Ch (a). As required by Bearden, the House and Senate bills direct a judge to consider alternatives to incarceration when committing someone to jail solely for non-payment of criminal justice debt. However, the final bill should use language from the Senate bill, which more clearly requires such a consideration. House Bill 37, Ch (c); Senate Bill 188, Ch (c). The final bill should also use language from the Senate bill expressly prohibiting sentencing a minor to jail or the department of youth services solely for nonpayment of money. Senate Bill 188, Ch (d). Clearly require the procedural protections of counsel and notice at fine-time hearings. When a person fails to pay, they often appear in court for a fine-time hearing, at which it is determined whether the individual has willfully withheld payment or made bona fide efforts to pay. We are pleased that both the House and Senate bills include language that recognizes it is crucial that counsel be provided at fine-time hearings at no cost to the individual to achieve justice and to make best use of everyone s time. Id. Additionally, it is important that both bills protect a defendant s right to due process by including a clear notice provision that requires courts, at sentencing, to inform defendants of all potential consequences of failing to pay their financial penalties. House Bill 91, Ch ; Senate Bill 316, Ch Increase consideration of ability-to-pay upfront. When courts impose financial penalties that an individual cannot afford to pay, it sets off a chain of inevitable consequences that a wealthier individual who committed the same offense does not face. This can include a suspended driver s 2

3 license, which impedes an individual s ability to go to work, an arrest warrant, and even jail time. In Commonwealth v. Henry, the Supreme Judicial Court of Massachusetts agreed: Burdening a defendant with these risks by imposing restitution that the defendant will be unable to pay violates the fundamental principle that a defendant should not face additional punishment solely because of his or her poverty. 475 Mass. 117, 122 (2016). The Conference Committee should select for its final bill the Senate bill s codification of Henry in the context of restitution as a condition of probation. The Senate bill requires a court to consider the defendant s financial resources when setting the amount of restitution. Senate Bill 291, Ch (c). It also includes a presumption of indigence and inability to pay for a defendant under the age of criminal majority. Id. Additionally, the bill requires that the amount of restitution ordered must be less than either the amount of economic loss or the amount of restitution that the defendant has the ability to pay monthly without causing substantial financial hardship, multiplied by the total number of months of probation, whichever is lower. Senate Bill 291, Ch (d). The Conference Committee should include in its final bill the presumption of inability to pay for juveniles and the requirement for setting a proportionate amount as restitution. The Conference Committee should add language to the final bill to ensure that no legal financial obligation causes substantial hardship by requiring courts to consider a defendant s financial resources when imposing any financial obligation. The court in Henry was clear that the payment of restitution was not unique, but rather like any court-imposed fee, [it] should not cause a defendant substantial hardship. Henry, 475 Mass at 127. The Conference Committee should preserve the Senate bill s provision allowing for payment plans in civil motor vehicle infractions; however, the Conference Committee should add clarification as to how payment plans will be requested and set. Under the Senate bill, when a police officer assesses a fine with a motor vehicle infraction, an individual may request to be placed on a payment plan. The final bill should add a requirement that individuals be given notice of this option so that they may request it if needed. The Senate bill then requires the registrar to take the individual s ability to pay into account when setting the monthly payment amount. Senate Bill 85, Ch. 90C 3(A)(d). The Senate bill also ensures that a person is not required to stay on a payment plan for an amount of time disproportionate to the offense by limiting the permissible length of a payment plan to twelve months. The final bill should include these provisions that recognize that many individuals want to pay their traffic fines but cannot afford to do so all at once. But, the final bill must be clearer that if the full amount of imposed financial obligations cannot be paid within twelve months without substantial hardship to the individual, the total amount should be tailored to the individual s ability to pay. 3

4 Fines and fees should all be made waivable under a uniform and comprehensive substantial hardship standard. The final bill should create a uniform substantial hardship standard that allows a judge to waive all fines and fees. Permitting judges to waive all fines and fees gives them the discretion to tailor a sentence to the individual and the offense. Without the ability to waive fines and fees, judges are forced to engage in one-size-fits-all justice, which inevitably over-punishes defendants who are unable to pay their criminal justice debt. Additionally, a uniform standard will create more certainty and usability for judges, DAs, and public defenders. The Conference Committee should preserve language from both the House and Senate bills, which adds a waiver to fines and fees mentioned throughout the state code. It is only by combining the language in both bills that waiver language will be added to every fine and fee. The final bill should also provide additional clarification that judges should use these waivers to tailor criminal justice debt to individuals ability to pay. The best way to accomplish this would be to add language that requires that judges inquire into ability to pay at sentencing and tailor criminal justice debt to the person before them. We agree with the House that a statutory definition of substantial financial hardship will increase clarity and consistency in the application of these important waivers. House Bill 1, Ch However, the House s definition, an inability to meet the basic human needs of food, shelter and clothing for an individual, an individual s immediate family or an individual s dependents, omits many basic human needs. Instead, the final bill should adopt the definition in Supreme Judicial Court Rule 3.10, which is used to evaluate a person s indigence for appointed counsel, and offers a more comprehensive definition. Rule 3.10 includes utilities, healthcare, transportation, childcare, alimony and child support payment, and payments on loans. This more inclusive definition will give judges the power to accurately evaluate the financial resources of the individuals before them and those individuals ability to pay fines and fees. Eliminate or make waivable the most burdensome fees. Massachusetts must reduce its reliance on fees, which serve as regressive taxes with no penological purpose. It should start by eliminating two of the State s most pernicious fees. First, as explained above, the indigent counsel fee charges individuals already found indigent a $150 fee to exercise their constitutional right to counsel. The Conference Committee should select language from the Senate bill eliminating the indigent counsel fee. This fee imposes additional punishment on individuals the court has already found too poor to afford an attorney and discourages individuals from exercising their right to counsel, which is integral to receiving a fair trial. Without an attorney, defendants are left to fend for themselves in a complex, adversarial system that requires a well-trained advocate to navigate. The Senate bill phases out the indigent counsel fee over a three-year period. Senate Bill , Ch. 211D 2A(f). The Senate bill also immediately 4

5 eliminates the indigent counsel fee for juveniles. Senate Bill 192, Ch. 211D 2A. The final bill should select both of these Senate provisions. Second, the Senate and House bills address the punitive nature of parole supervision fees. The Conference Committee should select the Senate s provisions for its final bill to eliminate the parole supervision fee. Despite some protections, individuals with a criminal history face difficulty finding employment. 1 Individuals released from confinement have an unexplained time-gap on their resumes and in their skill-building. Given these barriers to employment, individuals returning to communities after incarceration should not face the additional pressure of needing money for their supervision fee. The Senate Bill recognizes the immense difficulty an additional monthly fee adds to a parolee s life. The Senate bill, therefore, eliminates the parole supervision fee. Senate Bill 323; 183, Ch The final bill should do the same. The House bill instead provides an opportunity for a six-month waiver, with an extension every six-months as long as the parolee is determined unable to pay. House Bill 94, Ch This places a burden on the parolee to continually prove his inability to pay, perhaps indefinitely. Given the difficulty of assimilating back into society post-incarceration, the House Bill s solution wastes resources by requiring waiver requests every six months while placing an unnecessary burden on the individual during an already difficult time in his life. Both bills also address the harm caused by the probation supervision fee. The final bill should select the Senate s language, waiving the probation fee for as long as an individual cannot afford the fee. As mentioned above, individuals with a criminal record face discrimination when trying to find a job. Additionally, individuals on probation may be required to complete treatment programs or community service, or may be prohibited from driving a car. All of these conditions of probation make it nearly impossible to hold a job, and the additional monthly payment of a probation supervision fee is an additional punishment most individuals on probation cannot meet. Supervision fees also misuse probation officers, by making them appear as collection agents and distracting them from their primary role of supporting reentry and rehabilitation. 2 The Senate bill gives judges the ability to waive the probation fee after a finding that it would impose substantial hardship on the person or his family. Senate Bill 287, Ch A. This waiver remains in place so long as an individual is unable to pay the fee. Senate Bill 288, Ch A. The House bill similarly recognizes the difficulty of paying this fee, but it requires reevaluation of the substantial hardship every six-months. House Bill 74, Ch A. As explained above, this six-month check in places an additional burden on poor individuals on probation and places unnecessary work on the system. We reiterate our gratitude to the House and the Senate for including these reforms in their criminal justice bills. As the Conference Committee moves towards reconciling the House and Senate bills, we urge 1 Despite 2010 changes to help individuals with criminal records, within the first two years, the average employment rate dropped 2.6 percentage points compared with the employment rate of individuals without a criminal record. Katie Johnston, Ex-Offenders Are Still Having Trouble Getting Jobs, Boston Globe (March 21, 2017). 2 Alicia Bannon et al., Criminal Justice Debt: A Barrier to Reentry, Brennan Center for Justice, 11 (2010). 5

6 the Committee to include criminal justice debt reform in your final bill. Massachusetts prides itself on being a leader of civil rights and in the movement for a fair and just criminal justice system. As last year s Fine-Time Report showed, Massachusetts still has work to do to create an equal criminal justice system. As a start, we hope the Conference Committee includes the above recommendations in the final bill. Please do not hesitate to reach out with any questions you may have. Sincerely, Mitali Nagrecha, Director, National Criminal Justice Debt Initiative, Criminal Justice Policy Program at Harvard Law School David Harris, Executive Director, Charles Hamilton Houston House for Race and Justice at Harvard Law School Ranit Patel, Fellow, Criminal Justice Policy Program at Harvard Law School 6