Patrick’s Folly

Photo by Brian Snyder/Reuters/Landov

In what looks like a converted warehouse in Natick, seven men and women sit behind a long table. In front of them, in leg irons and a waist chain, is a prisoner in blues. He’s here to convince them that, after 15 years, he’s no longer the man who stabbed someone to death in a drug fight. He wants them to know that he’s unlikely to commit another crime and is not a danger to society, that he’s a good bet for parole.

Rows of chairs are set up facing the panel, like at a wedding. The man’s brother has come from Puerto Rico. His sister sits quietly crying. An assistant district attorney in a starched suit on the other side of the aisle chats with lawyers. The man barely reaches the microphone. He was young and angry, he says. He apologizes to the victim’s family and asks God for mercy. The panelists stare at him. Some ruffle papers. There’s an occasional yawn. They’ve heard this before.

[sidebar]At first glance, this scene seems like business as usual. But dig a little deeper and what you’ll find is a chilling and wrong-headed new approach to parole. In Massachusetts, these hearings have traditionally been evenhanded assessments of a prisoner’s potential for success in the community. But under the leadership of the board’s new chairman, longtime prosecutor Josh Wall, they have recently come to seem like trials with the prosecutor at the helm. Wall has been on the job just seven months — he took over amid fallout from the tragic shooting of a police officer in December by a convict who was out on early release — and already parole rates at state prisons and houses of correction have plummeted. The message is coming through loud and clear: There will be no more parole mishaps in Massachusetts.

In an article this summer in the Boston Bar Journal, defense lawyer Patricia Garin found that between January 14 and May 10, the parole rate at Massachusetts state prisons was just 31 percent, down from 66 percent in 2009. During that same span, parole approvals at houses of correction dropped to 40 percent, down from 68 percent in 2009.

So what’s wrong with that, you ask? Wall insisted in an interview that the new rate “shows that people have a fair and meaningful opportunity for parole.” And anyway, didn’t the fact that Domenic Cinelli, a career criminal out on parole, shot officer John Maguire to death during a burglary attempt at a Kohl’s department store in Woburn prove beyond a reasonable doubt that our system was broken? To read the papers or listen to our politicians after the shooting, you’d certainly have thought so. Governor Deval Patrick, in fact, made a series of sweeping reforms to the Massachusetts parole system following Maguire’s death, including installing Wall as the head of the parole board. But here’s the thing: All those hastily implemented “improvements” could wind up making our state less safe, cost us billions, and potentially set us up for significant legal challenges. We know this because that’s exactly what has happened to other states that have allowed passion rather than reason to dictate changes to their parole policies.

Immediately after Maguire was killed, and amid understandable public outrage, Patrick ordered the Executive Office of Public Safety and Security (EOPSS) to conduct a review of the case. The investigation uncovered some disturbing mistakes, such as poor parole supervision for Cinelli. But the EOPSS — which was asked to examine the case for Cinelli’s parole, not the underlying problems in the parole system — wrapped up its work in just over two weeks. The review, in other words, was hardly the type of comprehensive study that some states have undertaken before attempting to fix parole problems. Yet the EOPSS report became the basis for the governor to start overhauling our entire system.

With complete disregard for the kind of reasoned inquiry that has historically set Massachusetts apart, Patrick engineered the resignations of five of the seven parole-board members. He then quickly replaced them with handpicked tough-on-crimers. But the governor was just getting warmed up. He disposed of three other parole officials. And he went after Donald Giancioppo — who’d been the executive director of the parole board when Cinelli was released — even though Giancioppo had resigned his post a few months earlier to take a different government job…from which Patrick promptly forced his resignation. All of this, believe it or not, took place in just one month.

Compare that with the careful and deliberate approach Pennsylvania recently took before reworking its system after a lapse that had deadly consequences. That state spent two years reviewing the problems with its parole system, conducting a thorough analysis that led to the implementation of what are known as evidence-based practices — the kind that are promoted by respected organizations such as he American Probation and Parole Association and the National Institute of Corrections.

By responding to the shooting death of a police officer with emotion — and, yes, with an eye on politics — instead of with dispassionate investigation, this most enlightened and progressive of states has started down a decidedly backward path.

While far from perfect, the parole system in Massachusetts has historically served the state quite well. According to EOPSS statistics, 78 percent of parolees complete their supervision in the community without returning to prison. The national average is 49 percent.

That successful system is now under assault not just from Patrick’s rushed and ill-advised remaking of the parole board, but also from five bills currently working their way through the State House, each of them more punitive than the last. What all of these proposed laws — some put forth by the governor and others by legislators — have in common is that they would reduce or eliminate parole for some types of prisoners, and drastically increase prison time for people convicted of a third felony.

On the surface, that may sound like a good idea. But we really don’t have to dig far to discover that this approach would spell big trouble for Massachusetts. How do we know that? Because it’s caused all kinds of problems for other states.

Let’s start with the fact that Massachusetts state prisons are already at 140 percent of capacity. So even with previous parole success, we have been dealing with overcrowding. Now we plan to give more people more time behind bars? Leslie Walker, executive director of the nonprofit Prisoners’ Legal Services, estimates that “lengthier incarceration for violent offenders alone” could wind up costing the state an extra $267 million per year. Why? Because in Massachusetts it costs $5,000 per year to support and supervise a parolee, while the tab comes to $46,000 a year to keep a state prisoner incarcerated.

It’s worth the extra cost to keep our streets safer, right? It certainly would be — if keeping people locked away rather than letting them out early on supervised parole actually resulted in safer streets. It turns out, though, that it doesn’t.

Research shows that 95 percent of all men and women who are incarcerated will eventually return to the community. So what’s the best way to send them back? Prisoners who serve their entire sentence are returned to the streets without supervision of any kind. Those let out on parole, however, get strong oversight and support, which helps them succeed. There will probably always be disturbing exceptions like Cinelli, but as a 2002 Boston Bar Association task force found, supervised parolees are statistically less likely to reoffend than those released without oversight.

U.S. District Court Judge Nancy Gertner summed the whole thing up this way in a Globe op-ed piece: “No parole is a ticket to recidivism.” And more recidivism makes Massachusetts less safe.

Now let’s take a look at California, a state that shows us the worst-case scenario of reacting too quickly and with poor policy after a tragedy — this time, the heartbreaking case of 12-year-old Polly Klaas, who in 1993 was kidnapped and murdered by a parolee with a long criminal record.

Five months after Klaas was killed, California passed its famous “three strikes and you’re out” law. Criminals who committed second felonies would now receive double the time of their first sentence, while third strikes would result in sentences of 25 years to life. What the state wanted was to reduce violent crime by incarcerating its most serious and violent criminals. What it got was a disaster.

The “strikes” that triggered the tough new sentences could be for any felony, which in some states includes not just violent crimes but also drug distribution or larceny of more than a certain amount. So imagine a guy serves 10 years for a first strike, gets out only to be caught stealing, and then goes back to prison for 20 years. It started to happen just that way in California and, before long, the state’s prisons became overcrowded and filled with disease, violence, and death. That, in turn, led to years of litigation that recently resulted in a “cruel and unusual punishment” finding by the U.S. Supreme Court. California was ordered to limit its state prisons to 110,000 inmates, which meant cutting the population by 33,000 over two years.

“This was a perfect example of not using data to help make a good decision,” Len Engel, managing associate for policy at the Crime and Justice Institute, said of California’s three-strikes law. The California state auditor’s office in 2009 estimated that three-strikers spent on average nine more years behind bars and cost the state an additional $19.2 billion.

And because of its misguided reforms, California is facing still another potential correctional crisis that may well await Massachusetts if it decides to lock up prisoners for longer periods: an aging prison population. According to the Pew Center on the States, California’s correctional healthcare costs were $676 million in the fiscal year ending in 2001. By 2007, they had exploded to about $2.1 billion, an increase of 210 percent.

California shows us that locking up people for longer and longer is not the answer. But the proposed legislation in Massachusetts would do just that. The collective aim of the bills here is to keep people like Cinelli off the street. But as in California, they are too broad to ensure that only the truly dangerous will be denied early release.

In a report, Leslie Walker of Prisoners’ Legal Services points out that the governor’s two proposed House bills have some of the same three-strikes provisions that doomed California. Another of the proposed laws, Melissa’s Bill, has been kicking around for a while after being drafted in response to another tragedy, but has gained new attention since officer Maguire’s shooting. Among other provisions, this bill would totally remove parole for habitual offenders.

The most heavy-handed of the bunch in Massachusetts, though, is state Senator Bruce Tarr’s bill — which not only eliminates parole for habitual offenders, but also increases from 15 to 25 years the time that second-degree lifers — people who commit murder but without premeditation — must wait before being eligible for parole. Tarr’s proposed law, which might more accurately be named the “Build More Prisons” bill, would also: allow second-degree lifers to come before the parole board no more than once in a five-year period; require a two-thirds majority vote from the board to grant parole to a lifer rather than the current requirement of a simple majority; do away with the requirement that board members have at least a bachelor’s degree; and require that at least three of the seven members have five years of law enforcement experience within the previous 10 years.

As a 2004 Association of Paroling Authorities International study shows, requiring three members to have a law enforcement background is unusual. Of the 43 states that took part in the study (Massachusetts did not), 27 said they have some statutory requirements for sitting on the parole board. The vast majority of those states mandate that members represent a wide variety of fields such as psychology, education, sociology, criminology, psychiatry, social work, medicine, and law enforcement. And in law-and-order Arizona, “no two members can share the same career discipline.” Those kinds of rules keep the board from being stacked one way or the other.

Add it all up and the proposed initiatives in Massachusetts are regressive, outside the mainstream, and an embarrassment. As we contemplate the overhaul of our parole system, we are teetering on the precipice of policy disaster.

Of course, we’ve been here before. In 1995, fifteen-year-old Eddie O’Brien committed a vicious murder — stabbing and slashing a Somerville mother 98 times — that enraged the state, and rightly so. Unfortunately, the reaction to the crime led to a regrettable change in the law. To this day, children as young as 14 who murder are automatically tried as adults. And Connecticut and Massachusetts are the only states that still sentence juvenile first-degree murderers to life without parole.

“While it’s important to keep the victim’s perspective in mind, I’m always concerned when laws are enacted in the wake of a high-profile case,” noted Northeastern University criminologist James Alan Fox said in an interview, adding that “bad laws” can result from such situations. Fox also objected to some of the overblown conclusions in a June Globe article headlined “Paroled Lifers Pose High Risk of New Crimes.” The article found that 34.3 percent of the 201 parolees it reviewed were sent back to prison. But Fox pointed out that more than half of them were returned for “technical violations” such as “associating with known gang members, smoking marijuana, or even missing scheduled appointments with a parole officer.”

So how can we keep our state safe and secure and save taxpayers money?

A start would be to listen to the Criminal Justice Policy Coalition, a local nonprofit group that seeks to get evidence-based practices committed to law. That would mean mandating comprehensive study and testing before instituting changes to our criminal justice system. That would also mean being “smart on crime,” says Ronald P. Corbett, the new commissioner of probation in Massachusetts. In a 2008 Criminology & Public Policy article, Corbett warned some of his colleagues about unresearched policy decisions: “If professionals in the field of health care gave equally scant attention to research,” he wrote, “they would likely run the risk of malpractice and their patients surely would suffer.”

We can also pay attention to what’s happened in other states. Returning to the Pennsylvania example from earlier, two police officers in that state were killed in 2008 by three men on parole, all originally convicted for violent crimes. Pennsylvania is hardly known as soft on crime — its prison population at the time was the fastest-growing in the country. In the immediate aftermath of the killings, just as in our state, the governor temporarily froze some parole hearings. However, unlike what would later happen in Massachusetts, Pennsylvania set up an independent review, tasking John Goldkamp, the criminal justice department chair at Temple University, to investigate the matter.

Goldkamp’s reports, some done quickly but some taking more than a year, found 58 parole issues that needed improvement. His reports paved the way for the state to create stricter supervision and more support for parolees, develop a new parole classification system, and implement a tool to measure parolees’ dangerousness. What the state did not do was pass a bill that eliminated the possibility of parole, or increase violent-offender sentencing for second and third strikes.

The Pennsylvania Commission on Sentencing estimated that if a three-strikes bill had been passed, the state would have had to build four new prisons, costing $800 million, to accommodate all the extra prisoners. And additional millions would have been required to house them behind bars.

We need to learn from Pennsylvania. More prison costs mean less money for education, healthcare, and other state services.

There is some hope on the horizon. This year, Cynthia Stone Creem, Senate chair of the Joint Committee on the Judiciary, and state Representative Kay Khan drafted separate legislation to create an oversight commission to study and make recommendations to improve the state’s criminal justice system. Recently, Creem’s proposal was signed into law. In an interview, Creem said she believes “we have some problems in our criminal assessment” of parole risk, but said that she does not want a three-strikes law like the one in California.

Massachusetts must move quickly to make sure parole reform is done in a sensible fashion. Time is short, after all — unless, that is, you visit a lonely room in Natick on Tuesdays, where lifers appearing before the parole board have nothing but time. Their hope is to be given a chance to join the 78 percent of successful parolees. Our hope should be a Massachusetts parole policy that works.