MIDDLESEX COUNTY PRISON COORDINATING
COMMITTEE NEWSLETTER
MCPCC met on February 8, 2006 in
West Newton. Present were Mary Ann Donaldson, Beverly Wilkins, Tom Crowther,
Elizabeth Woodbridge, Bill Bergquist, Toby Frost, Wesley Frost and Marjorie
Moerschner. We welcomed back attorney Lee Gartenburg as our guest speaker.
Lee had three things that he
particularly wanted to talk about:
1)
The
new drunk driving law which was passed recently (Melanie's Law)
2) Anti-gang violence
legislation now being considered by house and senate
3)
CORI reform.
1) Previous drunk driving legislation usually
focused on increasing the penalties for DWI offenses. Melanie's Law aims at
putting more restrictions on people if they refuse to take a breathalyzer test
after being stopped. People have a constitutional right to refuse
(self-incrimination) and this refusal cannot be brought out in trial (it would
be prejudicial) but this law makes refusal a very unpleasant option.
Refusal to take the breathalyzer
test always brought a license suspension, but suspensions are much longer now.
If you are over 21 and have no prior drunk driving offense you lose your
license for 6 months; with a prior offense it's 3 years; two prior offenses
gets you a five year suspension; 3 or more prior offenses and you lose your
license for life- all for refusing to take the test. This is an administrative
penalty, not a sentence after trial.
This bill requires an interlock
ignition device to be attached to the car of a person convicted of DWI. The
driver blows into it and the car won't start if the device detects alcohol.
It's a criminal offense for someone to do this for you.
There is also now a mandatory
1-year prison sentence for anyone who drives drunk after a license suspension.
It is a criminal offense to employ anyone with a suspended license to drive for
you or to allow such a person to drive your car, or to lend your car to someone
whose own car has an interlock device. It is a crime to drive drunk with a
child in the car- this was never spelled out before- which carries a stronger
penalty than simply driving drunk. There are stronger penalties for motor
vehicle homicide and a new offense called motor vehicle manslaughter has been
created.
These new laws will increase the prison population
and the age of the prison population. The average age of Billerica inmates is
already going up for various reasons, including domestic violence. It's not
just the young who commit these offenses.
Laws will help to get drunk
drivers off the road, but the greatest deterrent is undoubtedly cultural, when
things like peer pressure make not driving drunk a standard norm of behavior.
2)
Anti-gang
legislation. Boston and to some extent most major
Massachusetts
cities have several serious problems that affect the crime rate: there are a
lot of guns around, there are a lot of gangs, and there is a culture of intimidation of
which those "don't snitch" T-shirts are just a small example. It's
hard to convict offenders if no one will testify against them. Ideally, these
problems should be solved proactively rather than reactively, starting when a
child is in nursery school or earlier, and ideally someone, parent or other,
should know where a child is all day every day. There should be after-school
programs, community centers, boys and girls clubs, to keep a child
constructively busy and off the street when he is not in school or at home. A
child without a nurturing family structure and spending unsupervised time on
the street is drawn into a gang; it becomes his family and its values become
his. The result is mini societies based on guns, violence and drugs. In Boston
those boys and girls clubs and community centers are failing to do what they
could and should do.
Senator Barrios, chairman of the public safety and homeland security
committee got a grant of $11,000,000 to fund community based initiatives to cut
down on gang violence.
In addition
anti-gang bills were proposed in the House (#4615) and Senate(#2242) of which
Sen. Barrios was a main proponent. Both bills have common themes and some
differences. A version of these bills passed each chamber and are now in
conference committee.
Each bill set up a board to provide a system and funds for witness
protection, something Massachusetts has never had. This would include armed
escort during the criminal proceedings,
relocation,
etc. The witness would also have the right to seek a restraining order against
a threatening or intimidating person. Previously, restraining orders were
essentially confined to domestic violence situations. There are also penalties
for intimidating a witness.
The bills have a provision that potentially restricts the dissemination
of grand jury minutes. A felony charge constitutionally requires an indictment
before the case can go to
trial. A grand
jury hears evidence presented by a district attorney that a crime was committed
and that the person charged probably committed it. If the grand jury is
satisfied by the evidence it makes a finding of probable cause and an
indictment is handed down. (Misdemeanors, handled by the District Courts, do
not require an indictment.) After indictment, the case will go to trial in
Superior Court. The minutes of the grand jury proceedings, showing who
testified and what they said, traditionally are then given to the defense
attorney, who is never present during proceedings. This access to the minutes
is necessary because they allow the defense attorney to get an idea of the case
against his (or her) client in order to prepare a proper defense. It also
allows him to challenge the finding of probable cause if the evidence presented
to the grand jury does not seem to warrant such a finding. Further, witness
testimony at trial can be challenged if it is inconsistent with prior
statements the witness may have made, such as those to the grand jury.
Since the minutes identify witnesses, there is obvious opportunity for
intimidation if the minutes fall into the wrong hands, so the proposed
legislation has provisions to restrict dissemination of the minutes in various
ways. There are penalties for illegal dissemination, a good thing. One proposal
would require court approval before the minutes are given to the defense
lawyer. Lee is not happy about the language of some of these proposals that may
go too far in restricting access. Defense access to the minutes is essential to
ensure a fair trial.
The proposed legislation would increase the mandatory sentence for
unlicensed gun possession to 18 months. It is now 1 year. Under present laws a
person in prison for a drug or firearm violation can't get into a work release
or community work project program. Since work release is a very positive tool
for starting people on a better path, Lee would rather see this restriction
removed in the proposed legislation than to see an increase in the mandatory
sentence for unlicensed gun possession.
Lee has some concerns about the anti-gang legislation that he has
expressed to Sen. Barios, but he feels it has merit if it doesn't go to
extremes. The bill is necessary, but it's reactive.
Prevention is proactive and the best solution. Very early intervention,
mandatory after-school programs, improved parenting skills are all necessary
and all would help.
The Dept. of Revenue, which handles child support,
is going to offer parenting classes at Billerica. Framingham already has
parenting classes.
3)
CORI
reform.
CORI (Criminal Offender Record Information) involves
two issues, the criminal record information itself, and the right to
disseminate it. The Criminal History Systems Board keeps information about all
court appearances, even if the charge was dismissed, and about the disposition
of each case. It disseminates this information widely to government agencies
like the Dept of Revenue and Housing Boards, and to victims and witnesses- but
for $25., anyone can get this information on any individual.
One result is that people with CORIS don't
get/hired, which is not the way to give them a new start in life. There is now
a movement to find a rational way to restrict access to this information.
There are several problems to be considered: what
information should be kept; who gets access; how to restrict access; how to
make the information accurate. It is extremely difficult to correct
misinformation. There are several ways that someone else's bad record can end
up under your name. Some states require fingerprint verification before
information is entered under a person's name. Massachusetts does not require
this. Verification should be part of reform legislation.
There are many
proposals for reform. Tony Winsor of MA Law Reform, who has studied this
problem for a long time, has one. So far, though the need is recognized and is
of concern, not much has happened.
In Massachusetts, records can be sealed after 10
years for a misdemeanor, 15 for a felony, assuming the person has not had any
involvement with the criminal justice system during that time.
Applications
for information would then come back marked "information sealed" and
in this case a person applying for a job would have the right to say "no
convictions." Records cannot be expunged.
Lee is currently Chairman of the Criminal Justice Section of the MA Bar Assn., and the Criminal Justice Section has set up a subcommittee to consider CORI. The subcommittee has decided that the formulation of a set of principles would be an orderly way to start dealing with this very complex and disturbing issue, and it is working on that now.
Lee is still involved with the Russian-American Rule of Law Consortium that has tried to foster the concepts of jury trials and fair trials within the Russian judicial system. Though he is rather pessimistic right now about conditions in Russia, he still hopes that those principles have taken hold.
Lee then gave a wonderful tribute to Beverly, our retiring coordinator. He mentioned her ability to reach out to people in many different ways, her commitment to trying to make the world a better place, and the energy and passion she brings to everything she does. We thank Lee for coming to talk to us. It is always a highlight of our year!
NEXT MEETING: MARCH 8, 2006 AT & 7 PM
SECOND CHURCH IN NEWTON 60 HIGHLAND STREET, WEST NEWTON