After Horton case, Massachusetts fell behind on criminal justice
By Nancy Gertner
Anyone of a certain age remembers Willie Horton. Furloughed in 1986 from a life sentence for murder, Horton, who is black, raped a white woman and assaulted her fiancé. But Horton’s legacy extends beyond the horrific crime he committed.
Many have blamed Governor Michael Dukakis’s failed presidential bid that year on publicity surrounding the case. Less often discussed is how far Horton’s crime set back criminal justice reform in Massachusetts — and still does to this day.
We like to think of Massachusetts as a progressive state, and it was on crime, too — until Horton. Indeed, except for our prohibition of the death penalty, there is little to set us apart from the Southern states that many in the Commonwealth consider overly punitive. Mississippi, Texas, Arkansas, Georgia, and South Carolina have all gone farther to reduce prison populations than Massachusetts. Horton’s shadow persists, silencing politicians who would be smart on crime rather than mindlessly tough.
It was not always so. Before the Horton case, Dukakis met monthly with an Anti-Crime Council, composed of representatives from a wide range of government agencies, victim’s groups, lawyers, even academics — I served on this committee. Members often disagreed on policy, but we understood that crime was a complex phenomenon. Mental health policy, juvenile justice, family services, even labor and employment had to be incorporated into solutions. Public safety required more than building prisons.
This approach was derailed by Horton’s crime. State lawmakers enacted legislation increasing imprisonment, especially for drug crimes and repeat offenders. Mandatory sentences proliferated; alternatives to imprisonment were ignored. The media regularly attacked so-called lenient judges — ignoring those who were needlessly harsh.
Soon the state’s prison population skyrocketed, falling in like with America’s failed experiment in mass incarceration. By 2010, the United States boasted the world’s largest prison population, beating out countries we regularly criticize on human rights abuses including Russia, China, and Iran. Imprisonment, rather than one instrument of crime control, became our only response.
Mass incarceration has not made us safer. A recent report from the National Academy of Sciences found no correlation between imprisonment and the crime rate. As more people were put behind bars, violent crime rose, then fell, then rose, and now has declined rapidly. That decline as seen in Massachusetts mirrors what has happened both nationally and across the globe, even in states that resisted mandatory sentencing and in countries without high incarceration rates. Would-be offenders, the report found, are deterred more by the risk of being caught than the severity of the penalty. Even incapacitation — that is, locking up people who might otherwise commit crimes — has little impact, hardly worth the cost.
And the cost of imprisoning so many Americans is substantial. Racial disparities skewed what researchers called the “life chances and civic participation” of black prisoners as well as their partners and children. Ex-felons are disqualified from public benefits and limited to non-existent job prospects. Their lives continue to be characterized by “violence, joblessness, substance abuse, family breakdown, and neighborhood disadvantage.”
With these realizations, a new consensus is forming today around rehabilitation. Evidence-based efforts are achieving significant reductions in recidivism. Advances in neuroscience may inform treatment alternatives. As a federal judge, I saw firsthand what well-designed programs could achieve in the drug and re-entry courts at the federal and state level.
Massachusetts remains slow to adopt such reforms. After courts banned sentencing juveniles to life without parole, the state District Attorneys Association gained bipartisan support when it proposed a 35-year term for youth offenders before parole consideration. Other states, and hardly just progressive ones, have gone in the opposite direction.
After a parolee killed a respected police officer, Massachusetts enacted a “three strikes” bill in 2012, just as other states began abandoning such laws. When a new parole board was “overhauled” in 2011 — the five members who had voted for that parolee’s release were purged — release rates plummeted, just as other states were reducing prison populations. US Attorney General Eric Holder has called for the commutation of sentences for non-violent federal drug offenders, but no similar system-wide approach has been proposed in the Bay State — no gubernatorial initiative nor change in parole practices.
Even on wrongful convictions, Massachusetts has lagged behind the rest of the country. Two years ago, we became the 49th state to enact a post-conviction DNA testing statue, and still prosecutors are working hard to limit strictly its application.
Yet real reform could be on the horizon. Proposed legislation could eliminate mandatory minimums for drug offenses as well as school-zone sentencing enhancements. (In Boston, where no location is far from a school, nearly every arrestee qualified.) A second pending bill would allow drug offenders serving mandatory minimum sentences to be eligible for parole, work release, and time off for good behavior. Compassionate release for aged prisoners, long overdue, has started to be discussed.
There are no excuses — not the crime rate, not even public opinion. Recent polls overwhelmingly support sending fewer people to prison. It’s time for Massachusetts to follow the lead of the rest of the country on criminal justice— indeed, the civilized world — and finally escape Horton’s shadow.
Nancy Gertner is a former United States District Court judge. She teaches at Harvard Law School.