2018 Massachusetts District Attorney Questionnaire

Local and state prosecutors hold extraordinary power in the criminal justice system. How they exercise discretion at each stage of criminal proceedings—from initial charging decisions to the sentences they seek to impose—determines whether the local justice system is fair and just. They also wield significant influence as policymakers and civic leaders, and can work with legislators, judges, public defenders, law enforcement, and other community stakeholders to advance justice through policy reforms.

Prosecutors can and should use this power to end the scourge of mass incarceration in America. The United States has the largest prison population in the world, many of whom are held in state or local prisons and jails. The United States’ over-reliance on incarceration and harsh punishment is both costly and ineffective; it exacts enormous financial, emotional, and social costs on communities across the country while exacerbating recidivism and leading to more crime.

This questionnaire evaluates whether local prosecutors are committed to addressing the key drivers of mass incarceration. The questions fall broadly into five different principles:

  1. End Wealth-Based Disparities.

  2. End the War on Drugs.

  3. Eliminate Excessive Punishments.

  4. Increase Transparency and Accountability.

  5. Promote Policies that Aid Undocumented Communities.

 

Principle #1: End Wealth-Based Disparities

1. End the Use of Money Bail

Massachusetts’s continued use of unjust money bail policies contributes to the overall incarceration of poor people and disproportionately harms people of color by keeping them incarcerated simply because they cannot afford to pay bail.  

  • How will you ensure that the Massachusetts bail statute is not applied in a way that punishes poor people before they have been convicted of a crime?

  • Will you presume, and affirmatively recommend, release on personal recognizance for all defendants unless there is a high likelihood of flight or substantial likelihood of danger to any person or the community under M.G.L.ch. 276 §58A?

  • Will you track and make public data so as to assist in system-wide efforts to reduce unnecessary pretrial detention?

  • Would you consider adopting a policy of affirmatively asking for release in the case of a specific number of identifiable MA offenses, so as to change the culture that presumes money bail is appropriate in most cases?

  • Will you issue public statements in support of statewide legislation, local ordinances, and/or litigation aimed at ending money bail?

 

2. Make Diversion Programs Accessible to All

Pretrial diversion creates opportunities for people charged with an offense to get the support and education necessary for rehabilitation, and allows successful individuals to avoid the collateral consequences of a conviction, which can be detrimental to future employment, housing, and education. Pretrial diversion should be available to anyone eligible to participate in the program, irrespective of an individual’s ability to pay a fine or fee.

  • Will you oppose all fees, court costs, and fines associated with pretrial diversion programs?

  • Will you oppose making admission or successful completion of a CWOF (or other form of diversion or deferral) contingent on paying financial obligations where an individual is unable to pay?

  • Will you commit to collecting demographic data on defendants who are diverted, including such things as charges, race, ethnicity, gender, zip code, and age?

 

3. Adopt Policies to Avoid the Criminalization of Poverty & End Debtor’s Prison

Local criminal justice systems disproportionately harm people living in poverty. Whether through the imposition of fines and fees as a condition to resolving cases, or through laws that effectively criminalize homelessness, local actors have imposed a poverty penalty on many people within our communities.

  • Will you make pretrial release, plea agreements, and other favorable sentencing programs available to all defendants, regardless of ability to pay?

  • Will you oppose the use of a pre-disposition restitution agreement and waiver of a hearing as a bargaining tool for a more favorable plea agreement?

  • Will you oppose incarceration based upon the failure to pay fines, fees, court costs, or restitution unless there is uncontroverted proof the individual is able but willfully refusing to pay?

  • Will you refuse to prosecute quality-of-life conduct that is a byproduct of an individual’s homelessness or poverty?

 

4. End Civil Asset Forfeiture

Throughout Massachusetts, law enforcement can seize money, personal belongings, and property from people without even charging them with a crime or obtaining a conviction. Often, the money seized is then used to pad law enforcement budgets. There is no place for this practice, which has received criticism from across the ideological spectrum. Prosecutors must resolve to put an end to asset forfeiture in their counties.

  • Will you support statewide legislation to end the use of civil asset forfeiture, and work with local officials to end the practice in Massachusetts?

  • Prior to the elimination of asset forfeiture, will you commit to using the practice only in criminal cases after a conviction has been obtained, where the amount in question exceeds $40,000, and after members of the community have had an opportunity to contest, with the aid of a lawyer, a potential seizure?

  • Will you dismiss all forfeiture cases where the accompanying criminal case did not result in a conviction?

 

Principle #2: End the War on Drugs.

1. Keep People Out of Jail for Drug-Related Offenses

Years of experience with ineffective drug laws and the latest medical research on addiction suggest that treating drug use as a public health issue, as opposed to a criminal justice issue, is a more effective approach to reducing harm.

  • Will you refuse to prosecute individuals charged with simple possession of controlled substances?  

  • If not, will you commit to offering diversion to all defendants charged with possession of controlled substances, and commit to never seeking jail time in the event of a conviction?

  • Will you make diversion the default path of prosecution in cases where the criminal charges stem from the defendant’s drug addiction?

  • Will you refrain from charging defendants with possession with the intent to distribute a controlled substance based solely on drug quantity or packaging?

  • Will you adopt a policy prohibiting the prosecution of individuals as habitual offenders whenever one or more of the predicate offenses is for simple possession of a controlled substance?

  • Will you publicly support legislation that reclassifies all drug possession offenses as low-level offenses?

 

2. Treat Opioid Addiction as a Public Health Problem

The opioid crisis claims tens of thousands of lives every year,and has shown few signs of abating. Prohibitionist policies did not win the war on drugs, and they will not end this crisis. Prosecutors can play an important role in ending the crisis, but only if they treat addiction as a public health crisis, rather than a criminal justice concern.

  • Will you adopt an office-wide policy stating that drug overdoses will not be prosecuted as homicides cases except when there is sufficient evidence of intent to cause death?

  • Will you publicly support the creation of supervised injection facilities?

  • Will you adopt an office-wide Good Samaritan policy stating that individuals who call the police in response to an overdose will not be prosecuted?

 

Principle #3: Eliminate Excessive Punishments.

1. Treat Kids Like Kids.

Children’s brains continue developing until around the age of 25 and research supports their enhanced capacity for rehabilitation. As a result, children should not be prosecuted in adult court, nor should they be given punishments that preclude the opportunity for redemption.

  • Will you adopt an office-wide policy stating that your office will never seek a sentence greater than 20 years, de facto life without parole, for any person under the age of 18?

  • In the extremely rare circumstances when a juvenile is tried as a Youthful Offender or sent to adult court, do you agree that their youthful status and unique circumstances should be taken into account as mitigating factors at each stage of the process, from charging decisions through final disposition?

  • Will you refuse to prosecute school-based offenses where there is no use or threat of force resulting in serious physical harm?

  • Will you publicly support legislation that raises the age of adult criminal responsibility to 21?

 

2. Promote Proportionate Sentencing and Pathways to Second Chances

People are more than their worst acts, and even people who commit the most serious offenses often change their lives profoundly over time. To recognize the worth and potential for growth in all people, it is important for local prosecutors to provide individualized consideration to the character and background of each person and to the circumstances surrounding the commission of the offense. It also is critical for elected prosecutors to promote opportunities for release, through parole or clemency, and to help remove barriers to reentering society for those who are released from incarceration.

  • Will you require prosecutors to state on the record the costs of their recommended sentence and why those costs are necessary?

  • Will you commit to not limiting diversion to first-time offenders?  How many times would you be willing to divert an individual? What criteria would you use?

  • Will you commit to not limiting diversion to misdemeanors and lesser felonies?

  • Will you establish an office policy against increasing or threatening to increase the number or severity of charges in order to secure more favorable plea dispositions or waivers of rights?

  • Will you commit to establishing an office policy of seeking no more than one or two years of probation, absent extraordinary circumstances?

  • Will you establish an office-wide presumption that the lower range of the sentencing guidelines should apply as a default?  

  • Would you also adopt an office-wide presumption in favor of intermediate sanctions over incarceration for cases in the discretionary range?

  • Will you require prosecutors to justify departures to their supervisors, and require that the chief assistant prosecutor approve all maximum sentences sought?

  • Will you publicly oppose any proposed legislation that would create new mandatory minimum sentences or lengthen existing minimum sentences, and support legislation aiming to eliminate such sentences?

  • Will you support second chances, even for those who commit serious offenses, by limiting parole opposition to those cases in which there is a demonstrable and serious risk of future violence?  

  • Will you also commit to affirmatively advocate for parole on behalf of those who demonstrate growth and maturity during their incarceration?

  • Will you commit to advocating for the Parole Board to act as though there is a presumption of parole?

 

Principle # 4: Promote Transparency and Accountability to the Community

1. Engage with the Community You Represent

Enhancing transparency and accountability within the district attorney’s office is critical to ending the win-at-any-cost pursuit of high conviction rates that fails communities and to ensuring community accountability.  Providing the community with information about arrest rates, charging decisions, and sentencing policies will help build and maintain trust between the office and the community it serves.

  • Will you maintain and publish an electronic case management system to measure the overall effectiveness of the office—including the number of low-level and serious cases filed each month, disposition statistics, pretrial incarceration rates and length of stay by offense category, and average bail for each class of offense—so that the community can study the effectiveness of policies aimed at reform?

  • Will you track and publish racial, ethnic, age, and gender information at all decision points of the prosecution process?

  • Will you build a staff that reflects the diversity of the community the office serves?

  • Will you conduct open sessions with the community at least once every month, and create other public channels for community members and organizations to engage with the office?

 

2.  Create an Independent Public Integrity Unit

The district attorney must be committed to rigorously and independently investigating and prosecuting police and other official misconduct. An independent Public Integrity Unit tasked with investigating and prosecuting alleged instances of public corruption, fraud, police shootings, or other abuses of power will help avoid concerns about bias in cases involving police misconduct.

  • Will you develop clear procedures and staff responsibilities whenever an officer-involved shooting occurs, including a robust investigatory protocol and an independent investigatory team that has no regular contact with the law enforcement agency in question?

  • Will you release dash-cam recordings and audio or video surveillance related to police-involved shootings within 30 days of any incident?

  • Will you commit to requiring a full investigation of any allegation involving police corruption or violence by the Public Integrity Unit, to include indictment?

  • Will you commit to building a list of all officers under investigation, and providing that list to defense counsel?

  • Will you maintain a no-call list for officers who have testified untruthfully and share this information with defense counsel?

 

3. Develop Policies that Ensure the Integrity of Convictions

Law enforcement officials and prosecutors will inevitably make mistakes. The consequences of wrongful convictions are manifold; the innocent person spends years in prison for a crime he did not commit, and justice continues to elude the victim’s family. Prosecutors must be vigorous in re-examining prior cases whenever there is credible evidence of innocence, and must develop policies that limit the possibility of future wrongful convictions.

  • Will you establish and fully support a Conviction Integrity Unit that examines post-conviction cases to identify and correct wrongful prosecutions, independent from any appellate division?

  • Will you create a review process where senior staff examine whether there is sufficient evidence to support charging decisions and ensure that such decisions are made consistent with the office’s policies against overcharging?

  • Will you develop clear guidelines regarding the use of informant testimony?

  • Will you prohibit staff from relying on discredited scientific techniques, such as bite mark analysis or hair strand matching?

  • Will you adopt an open-file policy that provides defense counsel with access to all non-privileged information from the moment the charges are filed?

  • Will you conduct regular Brady training, require prosecutors to turn over all evidence that arguably falls within the Brady rule, and discipline prosecutors who fail to comply with their Brady obligations?

  • Will you refrain from using information from gang databases unless independent verification provides clear and convincing evidence to support the information?

  • Will you commit to holding Probable Cause hearings on all life felonies?

 

4. Address Racial Disparities in the Criminal Justice System

Across the nation, data reveals substantial and well-documented disparities in the impact of various police and prosecution practices on communities of color. Disparate enforcement and prosecution of the law is not only unfair to the specific individuals impacted, it also undermines the relationship between the police, the prosecutor, and members of those communities.

  • Studies demonstrate that when police departments refrain from conducting stops for minor infractions such as burnt-out taillights, license plate violations, tinted windows and similar equipment and low-level regulatory issues, racial disparities are reduced.  Would you consider adopting a policy of declining to prosecute certain cases that stem from such stops?

  • Would you consider declining to prosecute cases that arise from fishing expedition searches that far exceed the reason for the initial stop?

  • Would you consider declining to prosecute cases arising from so-called “consensual encounters,” which occur predominantly in poor and minority neighborhoods, unless video footage from bodycam/dashcam affirmatively shows that the encounter was not coercive?

 

Principle #5: Promote Policies that Aid Undocumented Communities

Massachusetts is home to a large and diverse immigrant population. In the last year, undocumented communities have come under increasing attack because of increasingly vicious federal immigration laws. These policies not only allow for deportation because of minor allegations like possession of drugs, but they also make communities less safe, as undocumented victims fear going to court or speaking to law enforcement.  

  • Will you hire an immigration attorney who can advise line DAs on how to minimize the collateral impact of pleas on immigration status?

  • Will you publicly support local ordinances and statewide legislation that affirmatively limits law enforcement’s cooperation with ICE, and oppose any effort to enlist local law enforcement as federal immigration agents?

  • Will you educate subordinates about immigration consequences of continuance without a final (CWOF) disposition?

  • Will you encourage subordinates to offer “guilty filed” dispositions in cases with immigration consequences?

  • Will you expand pre-plea diversion programs that allow individuals to obtain dismissals of their charges without entering a guilty plea?

  • Will you affirmatively support post-conviction litigation from non-citizens who pled guilty without being advised of the potential immigration consequences of their plea?