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Some Question Whether 'Three Strikes' Legislation Is Right For Mass. 08:20
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Key Beacon Hill lawmakers say that a controversial "three-strikes" crime bill is on track for approval by the Legislature before the end of the current session in July. The sweeping overhaul of the state's sentencing laws would bar parole for three-time violent offenders, while abolishing mandatory minimum sentences for non-violent drug offenders.

Versions of the bill have been supported for the last decade by the family of Melissa Gosule. Gosule was raped and murdered in 1999 by a man with 27 prior convictions. Public support has also soared in response to the 2010 shooting death of a Woburn police officer, whose assailant was out on parole despite a history of violent crime.

But not everyone is on board with the proposal. Harvard Law professor and retired U.S. District Judge Nancy Gertner is among those who think the three strikes law will result in crowded prisons and no fewer violent crimes.


Meghna Chakrabarti: So you've sat on the bench at the federal level, what is your view as a former judge about the three strikes legislation?

Nancy Gertner: The first question is, do we need it? Why do we need it? Violent crime is down, the crime rate in general is down. Overcrowding is up, the incarceration rate continues to climb without any additional three strikes you’re out because judges feel the political pressure from the street to put people away. So why do you need a three strikes bill to make it even worse?

Higher incarceration, more overcrowding, all the while violent crime is already down. And the reasons why politicians believe they need it is because of two high profile cases, that’s one reason and the other reason is that somehow the price that we have to pay for meaningful changes in the criminal justice system — which was in the governor’s bill, reducing sentences for non-violent offenders — somehow we believe the price we have to pay for that is additional three strikes legislation. And that makes no sense.

The two cases that are the poster children for this legation, the legislation far outstrips anything having to do with these two cases. So one was the horrible murder of Melissa Gosule where the perpetrator had a non-violent record. If this bill covers people like him, we will be incarcerating people way out of proportion to what we should.

If the bill covers non-violent offenders?

Right. And I understand that they've attempted to restrict it to violent offenders. I make this point only because the Melissa Gosule case has become the rationale for the bill. And of course it isn't. That was not something that would’ve been addressed by this bill.

The second rationale for the bill is the Cinelli case, and Cinelli was an issue of supervision. He was released from prison, perhaps people might think he shouldn't have been, he was released he was doing fine for two years and then he fell off the wagon and went back to using drugs. It was an issue of supervision and as I’ve said many times before, the more money you put into walls the less money you have to supervise people.

But in the case of Cinelli falling off the wagon and ended up in the death of a Woburn police officer.

Absolutely and so the question becomes how is that prevented? One would be, perhaps, a three strikes law that says if you have multiple life terms, you know, you go away for life. That deals with Cinelli. The other thing we might do is to say we put money into supervision so when parolees who have been in jail for a long time, and need lots of help, begin to have trouble, we can catch them.

Judge Gertner, let me ask you, I mean, regarding that Cinelli case, we have spoken in the past to Rep. David Linsky of Natick, who was on the conference committee that was dealing with this three strikes legislation, and he said something to the effect that what you just echoed that if the bill ends up focusing on those repeat violent offenders, that a small number of people who may cause a disproportionate amount of violent crime are the only ones that would fall into this net. And in that way it would be a successful law because by removing those people permanently from the streets of the Commonwealth of Massachusetts, you may have a quite profound effect on the overall crime rate.

Well the crime rate is already down with out this, so we’re now legislating for a single case, well we’re legislation for two cases and we’re legislating generically. We’re putting way more into that category than just multiple life crimes. So you address that. You don’t deal with assault and battery, you don’t deal with breaking and entering, you don’t deal with stalking, you don’t deal with child pornography, I’m dealing with an earlier version of the bill, but this is where the politics come in. You don’t deal with all the myriad categories that are in this bill, which is far outstripping anything we need.

The other point that has to be said is that what the public is doing is trading judicial discretion for prosecutorial discretion. The prosecutor chooses what the category of crime is, and therefore whether someone is going away for a long time. In a mandatory minimum situation, the judge is a bystander, and you know, there are wonderful prosecutors in this state but I would rather have a judge exercising discretion, subject to appeal and accountability, in a transparent way, rather than a prosecutor deciding that this is a three strikes case.

Judge Gertner if I may just play devil’s advocate here, in this conversation, other people look upon judicial discretion as exactly the thing that’s led to repeat violent offenders being out on the street, being in a parole system that has so many holes in it.

You see, but that, that’s an allusion. Massachusetts, I have the statistics in front of me, Massachusetts incarceration rate, without this additional legislation has grown. The incarceration was at 3.2 percent when 1.7 was the national rate. Judges feeling the heat from the public have in fact been incarcerating more.

So the notion of using a thermo-nuclear or a three strikes bill for the purpose of targeting the one or two people, who are slipping through the cracks, makes no sense and it’s not costless. I’m not just talking about the cost in terms of money. It’s not costless to send people away for a long time, they get out at some point and then we are dealing with, you know, the rubble of their lives… Massachusetts now has a geriatric prison wing, for people who have been 40 and 50 years. It’s not costless to over generalize in the way these bills do.

Well, Judge Gertner, many people have looked at California as the poster child in terms of states that over generalize regarding three strikes legislation. I mean, I believe even for misdemeanors there, you could end up serving a life sentence for your third strike, but I mean Massachusetts is not California can’t states not have learned from the California example?

It’s a great example because the politics of that is exactly what is reflected here. There was a horrible kidnapping, Polly Klaas, if you recall, was kidnapped, a horrible, horrible case. It triggered a three strikes statute, which was much broader than the Polly Klaas case, just as this statue is broader than Cinelli. So there is a statue that is much broader than the problem that gave rise to the discussion. And it was so broad that in a case that went up to the Supreme Court, a man who had stolen $17,000 of golf equipment wound up with a 25-year term

Is there no version of a three strikes bill which you think would be satisfactory?

Well, you know, I’m opposed in general but if people wanted to address the Cinelli situation, craft a bill that says that any one with multiple life terms does not get out,. But you don’t jump into it particularly in this economy and particularly given the statistics that violent crime is down.

This segment aired on March 21, 2012.

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