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Atty Lown provides testimony for Nat’l Lawyers Guild in support of “de-carceration” Bill

Updated: Jul 12, 2023

Jails and prisons in Mass. remain filled with hundreds of individuals who can’t afford bail or are nearing their wrap dates. Yet they remain petri dishes of infection with woefully inadequate safety measures.

  • The testimony submitted on behalf of the Guild was given to support House Bill H.4652 sponsored by North Hampton state rep Lindsay Sabadosa and others.

  • The Bill calls for release of people who are held because they cannot afford bail, are medically vulnerable or are held on technical violations of probation or parole. It also requires basic sanitation in detention centers, such as access to hand sanitizer and soap.

The Massachusetts Chapter of the National Lawyers Guild supports H.4652. Even before this pandemic hit, Massachusetts police officers and judges disproportionately jailed people of color, those living paycheck to paycheck, and individuals suffering from a substance use disorder. In early April, the Suffolk County sheriff’s department handed the Supreme Judicial Court data revealing that hundreds of individuals were jailed on petty crimes including simple drug possession and sex work. We have imposed on our most vulnerable neighbors coercion rather than care. This Bill moves in the right direction and goes beyond SJC Order 12926 by making eligible for release all individuals held on a cash bail of less than $10,000. In the best of times, cash bail mandates pretrial incarceration for the poor and liberty for those with money. As criminal defense attorneys in Massachusetts, we have all had clients held on bails as low as $500 who remain jailed for months. In many instances, their cases are later dismissed. No person would sit in a filthy cage for that long if they had any money at all. Incarceration, even for a short period of time, causes individuals to lose their job, disrupts family relationships, results in loss of housing, interrupts substance use treatment, puts medically vulnerable individuals at risk, removes parents from their children. The devastation wrought on the individual and their community is real and measurable. To take the case of those suffering from a substance use disorder – also a public health crisis – the opioid overdose death rate for those recently released from incarceration is nearly 120 times higher compared to the rest of the adult population. This Bill calls for the release of individuals jailed for failure to pay fines or fees. As such, it enacts the Due Process and Equal Protection principles recognized by our state and federal supreme courts which prohibit punishing a person for their poverty. See Bearden v. Georgia, 461 U.S. 660, 671 (1983) (federal constitution prohibits “punishing a person for his poverty”); and Commonwealth v. Henry, 475 Mass. 117, 122 (2016) (“a criminal defendant should not face additional punishment solely because of [an inability to pay].”). As defense attorneys we have seen courts issue warrants and police officers arrest individuals for failure to pay, and this occurs before the person has any opportunity to argue that the default was not willful. The SJC ordered an expedited review process for those held on probation violations, including fee defaults. This Bill rightfully calls for these persons’ immediate release. We hope it establishes a precedent to end “Fine Time” and “Cash Register Justice” once and for all.

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