It is an old bromide that you never have a second chance to make a first impression. This is a lesson Massachusetts lawmakers should have learned in the aftermath of the sudden death of rising Celtics star Len Bias from a cocaine overdose in 1986. In response to that tragedy, Congress, led by our own Tip O’Neil, rushed to enact tough mandatory sentences for drug offenses, including huge differences between sentences mandated for crack and powder cocaine possession. The Anti-Drug Abuse Act of 1986 was passed almost immediately by a Congress terrified of being labeled “soft on crime.”
Massachusetts and the nation have been haunted by the unintended consequences of this disastrous bill ever since, which has compounded one tragedy with millions more. Perhaps more than any other single piece of legislation, it contributed to the massive build up of our nation’s prisons, to the failed “War on Drugs,” and to shameful racial disparities that have become a defining feature of our current system of mass incarceration.
Congress’ rush to “do something” in the aftermath of Bias’ death should be a cautionary tale about how a “cure” — if fueled almost exclusively by emotion — can exact more damage than the original problem. And yet, the Massachusetts Legislature has positioned the Commonwealth to fall into the same trap, leading us down a path away from which the rest of the nation is fleeing.
The “three strikes” legislation recently sent to Governor Patrick for his signature was written in response to a tragic crime. It will combine some relief in sentencing with an expansion of mandatory extended sentences for repeat offenders. The bill is the result of months of wrangling by a joint committee of the House and Senate. As is so often the case, the compromise will satisfy no one, least of all the governor, who has long insisted on a “balanced” approach to sentencing reforms. Among its myriad of problems, it omits the critical safety valve of judicial discretion that the governor has rightly insisted upon (and which even California’s notorious “three strikes” law contained). If the past is prelude, this law will exacerbate the crisis of overcrowded prisons, exert additional pressure on our tightly constrained budget, and increase racial disparities among those most harshly sanctioned, all with little likelihood of increasing overall public safety.
Once again, communities of color, which already experience disproportionately high rates of incarceration, crime and violence, will pay the steepest price. There is a growing consensus, shared by many law enforcement officials, that we can no longer arrest or imprison our way to safety. For some time, research and direct experience have persuaded even hard-nosed “tough on crime” proponents that front end interventions such as early childhood education, mental health counseling and job training are critical components of any sensible public safety strategy. But this bill will make it harder to fund these programs because it will eat up an increasing percentage of our state resources on housing and caring for an expanding number of aging prisoners.
Fortunately, we can learn from other states about smarter and more cost-effective alternatives. Of the 25 states that have passed habitual offender laws, at least 16 have amended the legislation to allow for greater flexibility in sentencing. Others, including Texas, South Carolina, Arkansas and Kentucky, are enacting comprehensive reforms based on data and evidence-based analysis. This spring, in Georgia — one of the heaviest users of three strikes penalties — a Republican legislature passed a bill signed by the Republican governor providing for tougher post-release supervision, expanded community-based sentencing options and systematic data collection and performance measurement systems. The five-year savings of these reforms to the state are projected to be $264 million. Contrast those savings to the known cost of $2.3 billion to Massachusetts over the next decade to house the 10,000 prisoners we will have under current laws.
These states are benefiting from the expertise provided by the non-partisan Pew Center for the States and Justice Reinvestment Initiative of the Bureau of Justice Assistance. Both organizations stand ready to offer the same support to Massachusetts, if we can demonstrate we are serious about enacting evidence-based solutions.
The governor has three options. He can veto the bill and risk an override. He can return the bill with amendments aimed at achieving the balance he seeks. Or, he can seek a third path. He can urge the Legislature to join him in inviting Pew to assist us in crafting reforms that can be embraced by all of the major stakeholders in the state.
In the aftermath of a brutal crime, we understand the impulse of policymakers to move swiftly to ensure that such horrific acts never happen again. But the best way to honor the victims and their families is not to enact bad laws. Let’s resist the urge to swing at a wild pitch, and work together instead to create safe communities based on reliable information and proven methods.