Massachusetts Gov. Charlie Baker, a Republican, signed into law a criminal justice reform package representing significant progress for our state, including many progressive youth justice reforms, in April. Here’s how we helped engineer that.
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By 2014, Massachusetts had raised the age of juvenile jurisdiction to include 17-year-olds, and fair sentencing reforms were advanced through Massachusetts’ Supreme Judicial Council ruling as well as legislative reforms. With these successes, a new coalition turned to the various reforms we could potentially pursue.
Citizens for Juvenile Justice (CfJJ), a member of the National Juvenile Justice Network, convened a statewide Juvenile Justice Reform Coalition that grew out of the Massachusetts Campaign for the Fair Sentencing of Youth. Many of our individual organizations had been advocating for various reforms separately. The coalition chose to join forces and have the coalition take on these individual reforms as a package.
In July 2016, the Massachusetts Senate passed comprehensive juvenile justice reforms, but they were not taken up by the House. During this same period, Gov. Charlie Baker; Ralph Gants, the chief justice of the state Supreme Judicial Court; House Speaker Robert DeLeo, and then-Senate President Stan Rosenberg publicly committed to pursue data-driven criminal justice reform. They invited the Council on State Governments to analyze and recommend reforms to address recidivism and reentry in the adult criminal justice system.
Massachusetts has one of the lowest incarceration rates — for children and adults — in the country. That argument created a barrier to pursuing more comprehensive reforms. However, it also has the distinction that our racial disparities in incarceration is one of the worst in the nation. These two competing arguments laid the groundwork for pursuing more comprehensive reforms.
A significant barrier to advocating for reforms was the lack of transparency in the legal system. Basic demographic data at key decision points — particularly diversion, prosecution, arraignment and court process and disposition data — is inaccessible to the public and advocates.
We pursued four major strategies:
- Young people, who are most impacted, were key voices in the campaign. We allied with youth-led organizations who prioritized justice reforms, particularly around the expungement of records.
- To expand our geographic and field-of-expertise diversity we organized a statewide coalition of allies pursuing juvenile justice reforms. By including in the omnibus legislation many priorities that would prevent young people’s entry into the justice system, we were able to expand coalition membership to bring in allies from the education, mental health, medical and other nonjustice-related fields.
- One benefit to filing standalone as well as omnibus legislation was that we increased the number of legislative champions who are passionate on these issues.
- We expanded our grassroots outreach on adult system reforms to include these advocates. Our coalitions worked closely to ensure our advocacy supported each other, and we did not stay in our own silos.
Effective justice policy must be based on reliable and publicly accessible data. We are excited that this law supports continued research and debate, including bringing together key stakeholders to make data- and science-informed recommendations on improving outcomes for young adults. For them the criminal legal system creates the worst outcomes at the highest cost.
These reforms were based on four guiding principles:
Most kids commit low-level crimes and nearly all age out of criminal behavior. More than half of Massachusetts adolescent engage in behavior that is potentially chargeable at some point during their teen years. Few of these teens are referred to the police. Those who are arrested tend to be youth of color, youth who live in poorer, more heavily policed neighborhoods and youth in the child welfare system.
The new law:
- Excludes elementary-age children from delinquency proceedings by raising the lower age of juvenile jurisdiction from 7 years to 12 years, placing Massachusetts in line with international children’s rights standards. The law ends the arrest, prosecution and incarceration of very young children between the ages of 7 and 11. Introducing a child at such a young age to the justice system can cause substantial harm, derail a young child's development and increase future offending.
- Decriminalizes nonviolent school-based public order offenses by students under age 18. Students are arrested for “disturbing a lawful assembly” or “disorderly conduct.” Children are routinely handcuffed, booked and required to appear in court for behavior that is best addressed by teachers, school administrators and parents.
- Decriminalizes certain low-level offenses, including violations of local ordinances, for all kids.
Court processing and out-of-home confinement increase recidivism and increase costs. Unnecessary prosecution and incarceration harm youth, undermine public safety and cost tens of millions of dollars annually. Arrest and formal court processing — controlling for all other factors — significantly increase a young person’s risk of dropping out of high school and of committing more offenses. Court processing also increases the risk of further delinquency when compared to diversion from formal processing. The new law:
- Authorizes juvenile court judges, in partnership with probation, to divert cases prior to arraignment before the creation of a juvenile record. Police, district attorneys and court personnel offer a discretionary and disparate array of programs and practices, with no requirements to follow best practices or track what they do. The result is that children across the commonwealth receive starkly different opportunities to avoid court involvement depending on where they live. By authorizing judges to divert a young person from further court processing, the law creates statewide opportunities for young people.
Developmentally appropriate interventions help kids and reduce crime. Research shows that interventions that promote normative adolescent behavior (as opposed to punitive measures) work best to minimize recidivism for youth with both low-level and serious offenses. The new law:
- Creates opportunities to expunge juvenile and criminal records for offenses charged before age 21 (eligibility limited to someone with only one offense on their court record), including records with nonconvictions or adjudications, or records based on misidentification or errors. By requiring a three-year wait for misdemeanor convictions and seven-year wait for felony convictions, the law is in line with research that found that the predictive value of a record diminishes over time.
- Creates a parent-child privilege so parents can help their minor children in the court system without the pressure to testify against their child about these conversations. Our state laws recognize that certain relationships are fundamental to both a person’s well-being and to his ability to exercise his fundamental and constitutional rights. Accordingly, it protects the confidentiality of conversations between spouses and between a person and his attorney, therapist and clergy. While these relationships are important, it is difficult to believe that any could be more essential to a child’s well-being than their relationship to their parents.
- Clarifies that juvenile court records of young people indicted as “youthful offender” cases would be treated as juvenile records and not CORI (court arraignment) records, which will have tremendous implications on housing and employment opportunities.
- Prohibits indiscriminate shackling of children in juvenile court proceedings.
- Codifies DYS' involuntary room confinement policy, prohibiting the use of room confinement as retaliation, harassment or punishment
A fair and effective justice system must rely on transparency and accountability. The new law creates a Juvenile Justice Policy and Data Board to evaluate juvenile justice data collection and reporting, study the implementation of statutory changes including raising the age to under 21 and make recommendations on childhood trauma leading to juvenile justice involvement. This board is modeled after Connecticut’s Juvenile Justice Policy Oversight Committee.
What should come next
Finally, while the passage of this law represents significant reforms to our legal systems, we are looking ahead to the next phase of our advocacy:
- Though Massachusetts’ incarceration rate for young people is among the lowest in the country, our state is plagued by pervasive racial and ethnic disparities at every decision point. We will continue to advocate for greater data transparency and continue to advocate for greater racial equity in our systems.
- The limitations on expungement to records with only “one court appearance” is a missed opportunity in addressing recidivism.
- Young adults in Massachusetts have the worst outcomes in our adult criminal system — they are incarcerated 10 percent longer than other adults and recidivate at the highest rate of any age group. CfJJ is campaigning to raise the age of juvenile jurisdiction to gradually include 18-, 19- and 20-year-olds. This law creates a task force to recommend young adult justice reforms. Young people in this critical period of development are highly amenable to rehabilitation when provided with developmentally appropriate programming, education, vocational training and support for their families. The juvenile justice system in Massachusetts has far more developmentally appropriate programming and capacity to provide the necessary support to improve outcomes for both public safety and for young people.
Sana Fadel is the acting executive director of Citizens for Juvenile Justice.