Mandatory Minimum Jail Time In Drug Cases: Time For The Thirty Years’ War To Be Over

Fingers crossed, but it’s looking like the Legislature might be ready to think again about the wisdom (or folly) of the statutes it passed thirty-some years ago that require jail time of at least some minimum duration in drug cases.

Promising signs that reconsideration is underway: a special commission established in 2012 to study the state’s criminal justice system reported back in November with a recommendation that the Legislature eliminate mandatory minimum sentences for all drug offenses in Massachusetts. The Chief Justice of the state’s Supreme Judicial Court announced that the court system will be taking “a hard and honest look at how we sentence those convicted of crimes, with the goal of not only punishing and deterring criminal behavior, but also lowering recidivism by “treating the root of the problem behind many drug offenses — the problem of addiction.” And there’s always the bean-counter argument against mandatory minimums: the cost of housing an inmate now tops $47,000 per year.

The most encouraging signal may be coming from the our new Governor. Charlie Baker has said that he supports “repeal of mandatory minimum sentences as part of an overall strategy to rethink how those with substance abuse issues are treated.”

Baker’s support gives a Nixon-goes-to-China boost to the proposal that other Governors could not have provided. That’s because Charlie Baker was a key figure in the administration of Governor Bill Weld two decades ago. At that time, Weld was the state’s most resolute defender of mandatory incarceration laws. Even after a Globe spotlight series in 1995 demonstrated that most of the people sentenced under those laws were not the rich kingpins but lower level mules, first-time offenders and those too poor to have anything to offer in a plea bargain, and after it was pointed out that enforcement of the laws disproportionately affected racial minorities, he remained unmoved. “You hear the argument that mandatory minimums interfere with judges’ discretion. I say, ‘So what?'” he told the Massachusetts Police Association. So it helps to have the person whom Weld called the “soul” of his administration in the Corner Office now.

Not everybody was as enthusiastic as Governor Weld about mandatory minimum sentences back then. House Speaker Charlie Flaherty, for one, doubted their value. In 1995, Flaherty tried to capitalize on an opportunity for leverage that arose when Governor Weld requested $700 million from the legislature to build more jail cells (where are you going to put all those people serving mandatory minimums for drug crimes?). The House voted to give the Governor some of the money he was asking for, but only on the condition that state law be amended to give judges the discretion not to impose mandatory minimum jail sentences in drug cases if they stated in their reasons in writing. But, alas, the opportunity was lost when the Senate, siding with Weld, did not agree to restore discretion in sentencing to the judiciary.

So years later, yes, it’s great news that the topic of mandatory minimum sentences is up for discussion again. But it is hard not to think about what’s been lost while this ill-considered policy has been state law.

We’ve spent so much of money incarcerating people. A MassInc study estimates the cost at $35 to $90 million per year — money that was not available for other purposes. With policies like mandatory minimum sentences in place, it is hardly surprising that we spend 21 percent less on higher education these days than we spend on jails. Then there are collateral costs: former inmates have a harder time finding jobs, incarceration leads to higher rates of divorce, kids with parents in jail are more likely to enter the child welfare system. And grave issues of racial equity: the Supreme Judicial Court reports that in the most recent year of available data, 450 defendants received mandatory minimum sentences for drug offenses and three-quarters of those 450 defendants were members of racial and ethnic minorities.

Much has been lost. But we can stop the losses by calling an end to this disastrous thirty years’ war.

The Gaming Commission’s Hurry-Up Offense: Dispatch from the “ATM’s in Casinos” Battlefront

The latest episode in the drama concerning the legality of placing ATM’s in casinos here in Massachusetts.

Quick recap. At present, a state law says that no ATM “shall be located upon premises where there occurs legalized gambling.” This law presents an obstacle of major significance to the casino industry, under whose business model casino patrons must have ready access to all of their assets. In a very lightly attended legislative session on Christmas Eve, the State Senate included a repeal of that law in an amendment to a much larger bill concerning the regulation of state-chartered banks. The maneuver did not go undetected, and those who favored more careful deliberation on this policy question succeeded in removing the proposed repeal before allowing the bill to pass.

The Gaming Commission, in sympathy with the casino industry, had earlier asked the state’s Division of Banks for its views, and last week the agency responded: no repeal of the law is necessary because it has already happened. Their argument goes like this: the 2011 gambling law included a directive to several state agencies to ensure that casinos do not allow “any credit card or automated teller machine that would allow a patron to obtain cash from a government-issued electronic benefits transfer [EBT] card.” This prohibition against EBT cards, the Division of Banks reasons, also operated to repeal the earlier law prohibiting the placement of ATM’s in casinos altogether. Despite the fact that the Legislature did not expressly repeal the ATM prohibition (as it did with seven other statutes it regarded as inconsistent with the gambling law), the repeal nevertheless occurred “by implication,” because no other interpretation is conceivable: the prohibition against the use of EBT cards can mean only that the Legislature intended that ATM’s capable of rejecting EBT cards are permissible.

Whether the Division of Banks is correct in its interpretation is certainly a matter of dispute. (Courts are very relucant to conclude that repeals “by implication” have occurred: the test for the principle of implied repeal is “whether the prior statute is so repugnant to, and inconsistent with, the later enactment that both cannot stand.”) For one thing, the Legislature evidently lacked confidence that the gambling law repealed the entire ATM prohibition “by implication,” or else it would not have attempted to repeal it expressly last month.

In any event, now that it believes it has a green light of sorts from the Division of Banks, the Gaming Commission has a hurry-up offense going. Draft regulations allowing ATM’s as long as they are 15 feet or more from the gaming area have been issued and the Commission is requesting comments from the public by 4:00 pm on this Monday, January 19 (yes, it’s a federal holiday).

The Commission’s decision on ATM’s is far from the final word. And they should know what you think. So this weekend, maybe while you’re watching the Patriots’ hurry-up offense, drop a line to the Commission with your thoughts — and remember, the wisdom of the ATM policy is fair game, too. Use ‘draft regulation comment’ in the subject line and email to mgccomments@state.ma.us.

The Patrick Administration’s Legacy on Poverty, Part One: “Flaws at DTA”

In a widely circulated December op-ed Governor Patrick offered us a balance sheet on his eight years in office. On the plus side of the ledger: economic growth, student achievement, health insurance, energy efficiency and lots lots more. The ledger’s much smaller minus list includes the scandal at the state crime lab, the tragedy at the Department of Children and Families and “flaws” at DTA (the Department of Transitional Assistance, the state agency that manages various public assistance programs including Food Stamps).

To most people, “flaws” at DTA would mean the ones that received enormous publicity following reports issued in 2013 by the Inspector General and the Auditor. Those reports pointed to risks that people not eligible for benefits were nevertheless receiving them, and that the improper use of the debit cards used to issue benefits — known as Electronic Benefits Transfer (EBT) cards — was increasing those risks.

The subject of welfare abuse being a form of catnip for some, pretty soon the Herald’s Holly Robichaud, among others, was sufficiently under the influence to inflate the problem into a matter of “hundreds of millions of dollars,” far beyond the potential losses identified by the Inspector General and Auditor. The notion that hundreds of millions of dollars were being wasted was a very convenient fiction for some legislators who, at the same time, were fighting against proposals to increase revenues by a similar amount — why raise taxes when you can stop welfare fraud instead? Ideas about how to foil abuse abounded, and a plan to put Photo ID’s on EBT cards emerged as one clear winner.

Thus a really dumb idea was born. Or, rather, reborn. Years earlier, Governor Mitt Romney had considered the idea of putting Photo ID’s on EBT cards, but ultimately rejected it as impractical and not cost-effective. Impractical, because, like all debit cards, security against EBT card theft comes through the use of a PIN number, not a photograph. Moreover, Food Stamp benefits are calculated based on the resources of all the members of a household, and so all the members of the household are allowed to use the card. Putting a photo of one of the household members on the card simply creates an erroneous impression that no one else in the household is permitted to use the card. And not cost-effective, because the federal government (which funds the Food Stamp program) won’t pay for the extra cost of Photo ID’s, and so if the state wants them it has to pick up the tab. You would search in vain for another program that Mitt Romney thought was a waste of taxpayer money that was so enthusiastically embraced by so many of his supporters.

Fortunately, not everyone was buying the story that the state’s biggest problem was that public benefits might be going to ineligible people. Senator Dan Wolf, for example, told the Boston Chamber of Commerce that “to allow the conversation to turn once again to the few people on public assistance who may be abusing EBT cards is nothing more than blaming the victims, blaming the most vulnerable, and turning us away from the real issues we face.”

And for a time it seemed that Governor Patrick, like Senator Wolf, would resist the Photo ID mania. He suggested, for example, that its cost-effectiveness be measured, but when the Legislature rejected even that modest idea, he capitulated — and then some. His Department of Transitional Assistance got busy and Operation Photo ID started rolling out just before Christmas in 2013, weeks before the deadline the Legislature had set. Glitches depriving people of their Food Stamp benefits happened immediately, and they were sufficiently widespread and serious (8,200 EBT cards mistakenly deactivated, for example) for the federal government to step in with a warning letter to the state. Throughout 2014 the problems persisted, and once again last month, the federal government pressed the state for solutions.

Insisting, despite evidence and multiple warnings to the contrary, that its EBT card rollout had been “an overwhelming success,” DTA has pressed forward with more changes, including the launch of something called the “business process redesign” in late October. Under the redesign, food stamp clients no longer have an assigned case worker and instead are told to call a statewide assistance phone number. Likewise, applications are no longer handled at local offices and are all sent to Taunton for processing.

Another “overwhelming success?” Initial reports are very discouraging. Social service agencies and food pantries are reporting that when Food Stamp clients call the statewide phone number, no one is on the other end. Clients are turned away from local offices if they attempt to deliver an application there. Applications sent to Taunton often disappear, and those that do arrive join a growing backlog of unprocessed paperwork. As of this writing, DTA’s business process redesign looks to rival the Health Care Connector website and the online system for Unemployment Insurance as an information technology calamity.

Ominously, the rate of food stamp participation in Massachusetts appears to be confirming the bad news. Nationwide, the start of an economic recovery is lowering the number of food stamp recipients slightly, but as of September — even before DTA’s launch of its redesign, the decline in Massachusetts is 7.3 percent — four times the national rate. It seems inevitable that DTA’s practices will only accelerate that decline when the numbers for the last quarter of 2014 come in.

So, what “flaws” at DTA should we remember as the legacy of the Patrick administration? Just the ones that suggested that the wrong people were getting help, or also the ones that demonstrated that the right people were not getting help?

The answer might depend on whether, as Governor Patrick has often said, we grow a backbone and stand up for what it is we believe.

Three Quotes for Uneasy Times

For these uneasy times, here are three quotes from my favorite theologian, Reinhold Niebuhr.

It’s likely that most readers have not heard his name before, although most are familiar with his most famous prayer: “Lord, Grant me the serenity to accept the things I cannot change, Courage to change that I can, And wisdom to tell the difference.”

Reinhold_niebuhr

Niebuhr lived from 1892 to 1971. Few theologians exerted more influence in their time on the secular world. During the Great Depression, he championed workers’ rights and racial equality in Henry Ford’s Detroit. In the 1930’s, Adolf Hitler’s rise in Germany caused him to discard his pacifism. In the 1950’s, he was a foe of Soviet communism and equally the foe of American conservatives who were inclined to think that the evils of communism demonstrated the virtues of American democracy. And Martin Luther King, Jr. credited Niebuhr with curing his early “superficial optimism about human nature.”

  • On humor and its relation to faith:

“The intimate relation between humor and faith is derived from the fact that both deal with the incongruities of our existence. … Laughter is our reaction to immediate incongruities and those which do not affect us essentially. Faith is the only possible response to the ultimate incongruities of existence, which threaten the very meaning of our life.”

  • On America’s exceptionalism and aspirations to empire:

“The same strength which has extended our power beyond a continent has also interwoven our destiny with the destiny of many peoples and brought us into a vast web of history in which other wills, running in oblique or contrasting directions to our own, inevitably hinder or contradict what we most fervently desire. We cannot simply have our way, not even when we believe our way to have the “happiness of mankind” as its promise.”

  • On religion and confidence:

Humanity is fond of thinking that religion is confidence in our highest social values. “Nothing could be further from the truth. True religion is a profound uneasiness about our highest social values.”

In a Coma? Don’t Forget to Keep Exercising Your Personal Responsibility.

From Columbus, Ohio, comes the story of a woman whose welfare and food stamp benefits were terminated because she failed to attend a job training program she was required to enroll in. The reason she missed the training was that she was in the hospital, in an induced coma, fighting for her life.

If you are thinking this must all have just been a big mistake, keep reading.

The woman, Kimberly Thompson, once had a warehouse job packing boxes that enabled her to support herself and her and her 15-year old daughter. But in May, 2013, she needed to have a hysterectomy. After the operation, she was unable to return to her physically demanding job right away. She applied for and began receiving cash assistance, Medicaid and food stamps, and she enrolled in a job training program to meet the work requirement that was a condition for receiving cash assistance. But shortly afterward, an infection she had contracted following her surgery worsened dramatically, and her doctors placed her in a coma in order to save her life.

When she awakened from the coma, she discovered that her cash assistance and food stamps had been terminated. She called the welfare agency to find out why and learned that the reason was that she had missed her training class. The agency gave her two days to prove that she had a good reason not attending. Weak, unable to move (seven of her toes had been amputated) and only slowly regaining her cognitive capacities, she was unable to do so before the agency ended her benefits.

In agency-speak, Thompson had violated the Self Sufficiency Contract that she had signed. That contract, which set out a timetable for her to attain “self-sufficiency and personal responsibility,” said that she would face sanctions if she did not comply in full with her work assignments. And when she missed her training class, the agency ended her cash assistance immediately. Ohio law allowed her to appeal the agency’s sanction, and at that appeal she was able to convince the agency that being in a coma was a satisfactory reason for missing class. Eventually her benefits were restored, but by that time — unable to work and without any other income — she became homeless.

If you are thinking that the welfare agency in Ohio, whose policy is to terminate benefits first and entertain pleas from desperate people later, is made up of particularly mean-spirited people, keep reading.

Under federal law, states are required to show that at least half of their recipients of cash assistance are employed or engaged in job training. Any state that falls short faces the loss of federal funding.

The obvious way for a state to meet this requirement is to ensure that cash assistance recipients get jobs or job training. But that’s not the easiest way. The easiest way is simply to eliminate people from the welfare rolls altogether — decreasing the denominator of a fraction can yield the same result as increasing the numerator. The cash assistance caseload in Ohio has fallen by more than 30 percent since 2011, a result in part of its policy of terminating benefits first and entertaining pleas from desperate people later. And Ohio is only one of many states using strict work requirements to reduce caseloads.

*****

Could something similar happen in Massachusetts? It may have already started. The cash assistance caseload here has fallen by 19 percent since 2011, not too far behind Ohio’s 30 percent reduction. State welfare agencies do not keep track of how families fare after they stop receiving cash assistance, so we have no assurances that these families are living in stable situations. Inquiring minds would be interested to know whether this caseload decline (numbering 10,000 families), is contributing to the dramatic rise in family homelessness in Massachusetts over the same time.

And our welfare agency is getting more authority to terminate cash assistance benefits. In the past, families that include a disabled family member have generally not been subject to a work requirement. A new law, which was enacted by the Legislature this summer and which has not yet been implemented, allows the agency to adopt a stricter standard of disability, which would have the effect of making more families subject to a work requirement. In passing this law, the Legislature acknowledged the extra difficulties disabled parents would have in meeting a work requirement, so it also provided funds for services to help families receiving cash assistance make their transitions to work. But when the state encountered a budget shortfall recently, funding for these services was cut by more than 90 percent.

Our incoming Governor, therefore, will have a lot of choices to make — between reducing caseloads and reducing poverty.

Charlie: You Can Help Barack Preserve the EITC!

Here’s an idea for Charlie Baker: Congress is now considering a bill that would make permanent many tax credits and deductions that are now only temporary. How about supporting President Obama’s threat to veto that legislation because it fails to extend expansions of the Earned Income Tax Credit program?

A quick recap: this tax bill was negotiated between House Republicans and the office of Democratic Senator Harry Reid (who will no longer be the Senate majority leader when the Republican majority takes over in January). The $440 billion worth of tax breaks that it would make permanent include some programs that are popular with Democrats as well as Republicans, such as the American Opportunity Tax Credit for higher education costs, but two thirds of the tax benefits in the bill would go to businesses. Last week, President Obama threatened to veto the bill because it does not give permanent status to expansions of certain tax provisions, including the Earned Income Tax Credit Program, that are important to low-income families with children. In a provocative display of candor, the Republican negotiators said that the exclusion of the Earned Income Tax Credit program from the bill was “payback” for the president’s executive order on immigration.

The EITC expansions at issue were put into place five years ago, as part of the economic stimulus bill to counter the Great Recession. They provide, for example, a higher credit for larger families (those with 3 or more children). The expansions are scheduled to expire in 2017, and if they do, the credit for these larger families will fall by more than $700 per year. According to the Center on Budget and Policy Priorities, allowing the expansions to expire will push a quarter-million Massachusetts residents into poverty or make them poorer.

Allowing these expansions to expire would affect not only the federal EITC program, but also the 25 state EITC programs that provide some portion (currently 15 percent in Massachusetts) of the taxpayer’s federal credit. Which is where the Governor-elect comes in. Baker’s campaign platform proposed to increase the state’s EITC program — a more specific anti-poverty agenda than anything his opponent offered. (It must be said, however, that Baker was most likely to talk up this idea when campaigning in urban areas and communities of color. In the rest of the state, one heard far less about this “carrot” of encouraging work and far more about the “stick” of welfare reform.)

Given the state’s current budgetary red ink, it will be challenging enough to deliver an increase in the state EITC program. If the federal EITC expansions expire, any state increase would go in part toward making up for those federal cuts. So maybe Governor-elect Baker will repeat, for the benefit of the Republicans in Congress, what he told the Globe the day after his election:

“I would hope that one of the lessons that some of the Republicans nationally would take from this race is that it’s a good idea to chase 100 percent of the vote and to make the case in as many forums and as many places as they possibly can.”

Send them back to the drawing board to include the EITC. How about it?

A Budget Fix That Dares Not Speak Its Name

There’s a hole in the state budget, and yesterday Governor Patrick announced his plan to plug it. He’s using authority he already has to order immediate cuts to Executive Branch agencies. These cuts will make up most of the $329 million shortfall. His proposal for the remainder of the problem, however, requires the approval of the Legislature, and to judge from the early returns, that approval is unlikely.

The Governor would like the Legislature to agree to cut the amount of money that goes from the state directly to cities and towns for municipal services like public safety, schools and libraries. That money, known as unrestricted local aid, is understandably popular with legislators. And among Republican lawmakers, it is safe to say, only tax cuts are a more popular policy idea than local aid spending.

As in: yesterday, Representative Brad Jones, the House minority leader, called Patrick’s plan to cut local aid a “non-starter,” and Governor-elect Charlie Baker said through a spokesperson that “Massachusetts cities and towns deserve a dependable source of funding for crucial projects. As the transition process continues, Gov.-elect Baker looks forward to developing a responsible budget that delivers the services the people of Massachusetts need and protects taxpayers.”

And then this morning, House Speaker Robert DeLeo announced that he, too, opposes any local aid cuts.

The Governor’s budget chief is defending the proposal as a “balanced and thoughtful approach,” and says the administration has no alternative solutions. So it looks like we are heading for a stalemate.

But wait. Part of the budget hole — about $70 million — is attributable to a very tiny reduction in the state income tax that will take effect next year under an automatic formula the legislature devised. The reduction of .05 percent (from 5.2 percent to 5.15 percent) will mean about $50 extra per year for a family with an income of $100,000 and much less for families of lesser means. A similar tiny cut (from 5.25 percent to 5.2 percent) happened last year — how many of us even noticed?

The Legislature could act to defer this income tax reduction, which would reduce the budget hole by $70 million and would preserve local aid funding — and more. And even though we are as far away from an election (and the possibility of voter retribution) as we will ever be, nobody appears even willing to mention this possibility. Not even the guy who once wanted to have an adult conversation about taxes.