Massachusetts’ three strikes injustice

THIS SUMMER, Massachusetts became the 27th state to put a so-called "three strikes" law on the books. Signed by Democratic Gov. Deval Patrick on August 2, the law requires mandatory maximum sentences for those convicted three times of certain crimes, abolishing judicial discretion and revoking parole eligibility. It also expands the number of felonies punishable with life in prison without parole from one (first-degree murder) to 19.

The provisions in the bill have been touted as only affecting "habitual offenders," people convicted of a felony after two prior felony convictions. However, there are 688 felonies in Massachusetts, with the majority being nonviolent. The three strikes law creates a subsection of violent felonies, ranging from burglary and bank robbery to murder.

The law states, "Whoever has been convicted three or more times of an enumerated violent offense shall be considered a habitual offender and shall be punished by incarceration at a state prison for the maximum term provided by law." If convicted of any of the specified felonies three times, the accused is forced to serve the maximum sentence for their third "strike" and barred from parole eligibility or a reduction of their sentence time for any reason.

Under the law, judicial discretion is eradicated and a blind application of the three strikes model is mandatory. According to a report on the three strikes law by the Massachusetts Association of Criminal Defense Lawyers, judges will not be able to "strike a strike" from a defendant's record, unlike in California, which is home to one of the most regressive three strikes laws in the country.

Even in California, judges are permitted to eliminate a strike from a person's record based on a review of the "nature and circumstances of the present felonies or prior convictions" such as psychiatric needs, age or prospect for rehabilitation, in order to determine if the defendant's case falls outside of the "spirit of the three strikes scheme."

In Massachusetts, the possibility of judicial discretion is wholly absent. The law fails to account for the inevitable exceptions and inappropriate applications that will arise.

MOMENTUM FOR the three strikes law, also known as "Melissa's Bill," emerged in 1999 after the murder of Melissa Gosule by a formerly incarcerated person who was out on parole. For over a decade, the bill failed to gain traction in the legislature until 2010, when a Woburn police officer was murdered by a repeat offender who was free on parole.

Democrats and Republicans alike championed the bill the bill because of its pseudo-progressive rhetoric of only focusing on habitual, violent offenders ("the worst of the worst") and providing tokens of reform to those critical of the prison-industrial complex.
Piecemeal reforms in the law include a reduction in school zones from 1,000 feet to 300 feet (which triggers a mandatory minimum for some drug offenses) and a medical amnesty clause that protects a person from prosecution if they seek assistance for someone overdosing.

However, the provisions that have been conceded are incomparable to the draconian mandatory maximums, loss of judicial discretion and ineligibility of parole that are effective immediately.

Despite the decline of crime in Massachusetts, the bill sailed through the House (139-14) and Senate (31-7) and was signed into law by Gov. Patrick, a former NAACP Legal Defense Fund staff member. While Patrick stated that he was initially hesitant about the bill, due to the lack of judicial discretion, he signed it into law without the amendments he initially requested.

The implications for the implementation of a three strikes law in Massachusetts are dire for a state that already has life without parole for juveniles and a prison population that's expected to swell from 11,892 in 2011 to 14,753 by 2019.

The systematic racial oppression and criminalization of people of color within the criminal "justice" system is clear, even in a state that's perceived to be a haven for progressives. According to the Center for Church and Prison, while Latinos are only 9.7 percent of the Massachusetts population, they amount to approximately 28 percent of the prison population.

African Americans are 6.6 percent of the state population, yet account for 32 percent of the prison population (including juveniles). Although African Americans and Latinos are only 17 percent of the population in Massachusetts, they make up 55 percent of the prison population.

When and if the accused are released from prison, the formerly incarcerated face a form of legalized discrimination that authorizes the denial of their right to vote, secure employment, acquire housing, pursue education and receive public benefits.

Even without a three strikes law on the books in Massachusetts, prisons have been astonishingly overcrowded, on average being 143 percent over capacity. The correctional facility in Framingham an astonishing 331 percent over capacity.

In a report for the Boston Globe, Emily Sweeney revealed the abhorrent conditions of prison overcrowding in the state.

At the Norfolk County Correctional Facility in Dedham, three prisoners share a walk-in closet-sized cell with many inmates having to sleep on the floor in temporary Stack-A-Bunk plastic beds, innocuously named "canoes." The plastic beds were used in neighboring Bristol County, but the practice was ended in 1998 after inmates won a lawsuit against the department, banning the practice. Diane Wiffin, spokesperson for the Massachusetts Department of Correction confirmed the overcrowding, stating that "double-bunking of some sort exists in almost all DOC prisons."

In Norfolk County, the prison's gymnasium has been converted to a dormitory with triple-bunk beds with half of the population consisting of pretrial detainees whose families were unable to afford $50 or $100 for bail. Republican Bristol County Sherriff Thomas M. Hodgson defended the overcrowding and dire conditions in his facilities because they "are not a health club, not a Holiday Inn. Jail should be jail."

However, not unlike a health club, Hodgson charged inmates a daily $5 "cost of care" fee to cover necessities like medical appointments, GED tests and haircuts, until the Supreme Judicial Court deemed the practice unlawful.

THE STATE'S solution to a $1.3 billion shortfall is to enact austerity measures that decrease funds for education, health and human services while expanding the prison industrial complex. Instead of raising taxes on the wealthiest residents of the state (which would provide $3 billion in annual revenue), the legislature has slashed funding for Emergency Assistance (such as homeless shelters) by $40.8 million and child care subsidies by $8 million while increasing funding for the Department of Corrections (DOC) by $20.9 million.

In January the Massachusetts Division Capital of Asset Management released a master plan for the DOC that predicts a shortage of 12,100 bed spaces for prisoners by 2020. Their prescription: spending up to $2.3 billion on new prisons and increasing the annual budget for the DOC by $120 million.

Meanwhile, schools in predominantly Black and Latino neighborhoods are being closed or merged in order to cut costs and redirect funds to a slew of charter schools that are cropping up around the state. Massachusetts is emulating a national trend that prioritizes criminalizing young people of color above educating them, known as the "school-to-prison pipeline," another aspect of what author Michelle Alexander calls "the New Jim Crow."

Throughout the country, people are beginning to fight back en masse against a system that rewards and defends police for terrorizing and murdering Black and Brown people; against a society that has more Black men locked away in prison or on probation or parole today than were enslaved in 1850, even while a Black man is the president of the United States.

Now is the time to organize against this racist injustice system, as so many victims, their families and communities are doing. There is an urgent need for a movement strong enough to take on three strikes laws, stop-and-frisk policies and the numerous institutional mechanisms used to criminalize Black, Brown and poor people.

Jason Lydon, a community minister and founder of Black and Pink, a prison abolition group comprised of LGBTQ prisoners and allies, said of the "three strikes" bill, "We need a cohesive, grassroots, interracial, formerly incarcerated-led movement to stop the growth of the prison-industrial complex in Massachusetts."

Until then, the accused in Massachusetts, especially those who are Black and Brown, will only have little as a defense against the prison-industrial complex.