Joint Committee Hearing
Senate Judicial Proceedings & House Judiciary
Briefing on the Status of Implementation of the Justice Reinvestment Act (JRA)
January 19, 2017
Participants:
The Justice Reinvestment Oversight Board (JROB) and Required Reports Overview
- Daniel Long, Chair, Justice Reinvestment Oversight Board
- Glenn Fueston, Executive Director, Governor’s Office of Crime Control & Prevention
- Dennis Schrader, Secretary, Department of Health and Mental Hygiene (DHMH)
- Don Hogan, Director of Legislation, Governor’s Office of Crime Control and Prevention (GOCCP)
Collateral Consequences Report
- Alex Williams, Chair, Workgroup on Collateral Consequences of Convictions (CCCW)
Forensic Services for Drug Treatment
- Shannon McMahon, Deputy Secretary, Department of Health and Mental Hygiene
- Barbara Bazron, Behavioral Health Administration, Department of Health and Mental Hygiene
Supervisions and Corrections Implementation Status
- Stephen Moyer, Secretary, Department of Public Safety and Correctional Services
Implementation Status – Judiciary
- John Morrissey, Chief Judge, District Court of Maryland
Implementation Status and Perspective – Office of the Public Defender
- Paul B. DeWolfe, Public Defender for the State of Maryland
Mediation
- Jonathon Rosenthal, Director of Md. Courts’ Mediation and Conflict Resolution Office (MACRO)
Members of both Senate Judicial Proceedings and House Judiciary Committees were present.
1. Justice Reinvestment Oversight Board Report
JROB chair Judge Long gave a history of the JRA, describing it as “the most important piece of legislation I have ever seen in my lifetime.” He described it as a collaborative effort of all three branches of government that passed with bipartisan support. He emphasized the need to maintain momentum in implementation of the JRA, but estimated that, initially, only four JROB meetings per year may be needed. He plans to travel the state to see if the JRA is being implemented.
The JRA reduced penalties for minor offenses and increased penalties for a few serious offences such child abuse. Importantly, there is more emphasis on risk assessment treatment, restitution, and immediate placement in drug treatment. “Technical violations of probation” are streamlined and expungement opportunities are expanded.
The Executive Director of the Governor’s Office of Crime Control and Prevention said that his office is ready to provide technical and financial assistance to JROB and both General Assembly committees. He anticipates that, eventually, there should be JRA savings from reducing prison beds for non-violent offenders. These savings will be used for treatment, re-entry programs, and other JROP-approved initiatives. GOCCP still is working on four JRA-mandated reports:
- The restitution report will study the restitution process. It calls for a new unit which will focus on restitution.
- The organized retail theft report may recommend a bill to redefine organized retail crimes under state law and will collect data from other states.
- The substance abuse report will address the gap between needs and resources. There is a need for more data regarding mentally ill inmates to identify spots for intervention to keep people out of the criminal justice system.
- The local corrections facilities report will look at budgets. More data still must be gathered for this purpose.
Department of Health and Mental Hygiene Secretary Schrader said that the two key JRA elements are treatment for drug and mental health problems and re-entry services. He stated that Maryland has obtained a waiver for use of Medicaid funds for these purposes, although there is concern that this could be lost under the Trump administration.
Sen. Muse commented: There is inadequate representation on the board of those who are disproportionately impacted. Why are there only two persons of color on the board? GOCCP staff Hogan responded: There are 25 members with diverse backgrounds and the JROB related advisory board may have better representation.
Sen. Muse also asked whether plans are underway to increase the possible use of expungement.
Judge Long suggested that the legislature should avoid making wholesale changes until the JRA expungement system adopted in 2016 has been implemented so that its impact could be assessed.
Del. Anderson asked several questions, initially about risk assessment and JRA savings via smaller prison populations: What is the level of use of a risk assessment tool? What are the savings from different levels of use? Is there a mechanism for recognizing savings? Where money is saved, will a prison be closed? Will people be fired?
GOCCP staff Hogan responded that the JRA requires specific, dated performance measures before savings can be calculated.
Del. Anderson turned to the question of possible pretrial savings, asking: Could local jails also obtain savings by improvements in risk assessment and community supervision from changing the bail system?
GOCCP staff Hogan responded: There currently is no state-mandated pretrial program to reduce local jail populations, but there may be JRA pilot programs. We should wait to see what pretrial systems work best.
Del. Anderson returned to the question of costs for supervison, asking: Won’t there be a need for more parole officers as more offenders are released?
GOCCP Director Fueston stated that it is expected “low risk” offenders will need minimal supervision under JRA and that “higher risk” offenders will need more. Caseloads of parole and probation officers will be examined as JRA proceeds. Even if more are needed, it costs $3,600 a month to house one inmate and $177.00 a month for one on probation so there still will be savings.
Del. Anderson asked: 58% of 20,000 are reported in Md. prisons for non-violent crimes. How many are in for drugs?
GOCCP director Fueston stated: Maybe 1,000—a minority are there for simple drug possession. The rest are in for felony theft and felony drug offences.
Stephen Moyer discussed how the Department of Public Safety and Correctional Services will be implementing the JRA. Although the main portions of the Act do not take effect until October, they are already anticipating their work. There will be ten teams to respond to the ten areas they have identified. They will meet twice a month.
Del. Vallario asked: How many HG 8-507 treatment beds now are available?
The DHMH Secretary: 245 beds. He noted that this year’s waiting list at 67 to 91 days now is much shorter than last year’s 167 days, but that further improvements still will be needed by JRA’s 10/1/17 implementation so that a bed will be available for each offender within 21 days. (He also noted that Baltimore County has its own contract for 9 treatment beds so there are no delays in that county.)
2. Collateral Consequences Workgroup Report
CCCW chair Judge Williams discussed the Collateral Consequences Workgroup (CCW), noting that it was initiated with the narrow focus of occupational licenses. Permitting greater access to such licenses could help implement re-entry without jeopardizing public safety. The CCW report makes 13 specific recommendations including: 1) further data collection and reporting; 2) publishing information about licensing not readily available, 3) establishing uniform standards between licensing boards, 4) revising all blanket and permanent bans of licensing, 5) considering the possibility of an employment discrimination statute for ex-offenders who have earned JRA certificates of rehabilitation, 6) providing state identification cards to all inmates on release from prison, e.g., from the MVA in preference to current DOC cards, 7) removing other legal barriers for ex-offender hiring, 8) review of Maryland programs providing incentives for private employers, 9) publishing “best practices” for employers. providing improved “certificates of rehabilitation” that might be issued by courts, 10)completing a Maryland-specific study of all statutory and regulatory collateral consequences, 11) designing a program for Maryland prisons to work with local reentry programs, including a “gap assessment” to ensure smooth transition from prisons back to community employment and involvement for ex-offenders, and 12) Md. Judiciary Case Search should be revised to permit removal of nonconvictions, as well as stale and erroneous information that causes negative impacts on employment for many.
Question: How many more parole officers will be needed? Are they involved in this process?
Answer (Moyer): Other states were looked at. The law is not in effect until Oct. 1. It costs $3,600 a month to house one inmate and $177.00 a month for one on probation.
Sen. Kelley stated: Here’s one problem. Many adult offenders started as minor offenders. Many get into the system at an early age. Information about them is not secret; it follows them, with the result that they can’t, for instance, get Pell grants.
CCW Judge Williams agreed that this can be an issue, especially where the juvenile was convicted in adult court.
Del. Sydnor asked: Do some states have penalties for discrimination by private employers in the hiring of ex-offenders?
Judge Williams said his report called for looking into this, perhaps finding a model statute, and giving employers more incentives for hiring ex-offenders.
Question: How will a risk assessment tool be validated? Who will do the assessment?
GOCCP staff Hogan explained that, under JRA, DPSCS has adopted the LSI-R assessment which is nationally and internationally recognized as the most effective assessment. The LSI-R has been validated on Maryland prison populations.
Del. Anderson: How and when would savings actually occur?
Answer GOCCP staff Hogan: It will take large-scale changes, for instance, 500 inmates gone and prison units closed to realize the largest savings. This could take years.
Sen. Smith: What about state incentives for private employers beyond the present federal tax credit and bonding?
CCW chair Judge Williams: We did not develop a specific proposal. Perhaps there might be a consideration of other states’ systems.
3. DHMH Report On Substance Abuse and Mental Health Resources
Shannon McMahon, Deputy Secretary of the Department of Health and Mental Hygiene, explained that, under the Medicaid program, one challenge has been to make a connection between the incarcerated population and Medicaid. Per a new section 1115 waiver, residential treatment for mental health and substance abuse now can be funded via Medicaid in Maryland. Returning state prison inmates can connect quickly to Medicaid by filling out an application on re-entry. More data is needed on how this is working. There also has begun to be better coordination between Medicaid and local jails.
Behavioral Health Administration (BHA) director Bazron explained that with increased funding, 245 treatment slots are available. There is a wait list of 91 days for residential treatment; some inmates need outpatient or other services. There are about 1200 section 8-505 assessments per year and about 400 section 8-507 placements per year. The wait time for assessments has been reduced by 56% in the past year.
Question: What if an inmate has his own health insurance?
Answer: He still has to go through the process.
Question: What are the numbers of those with and without their own coverage?
Answer: The number with their own health insurance coverage is very small.
Question: Is there data on how many tries it takes to get the attention of the offender?
Answer: Relapse is frequent. These problems are chronic.
Question: Who are the health care providers?
Answer: Currently, three private non-profits are used.
Question: How are new ones added?
Answer: So far grants have been used for funding, but they are concluding, and there is a move towards billable services under Medicaid.
Question: How much is spent on actual rehabilitation as opposed to administration?
Answer: We’re getting those answers.
Question: There is a concern about changes to ACA under the new administration. If there is no increase in funding, how will you comply with the mandate to place a person in a bed in 21 days?
Answer: It will be a challenge.
4. JRA Implementation in the Courts
Hon. John Morrissey, Chief Judge of the District Court of Maryland, noted that there are 6 main components to JRA: 1)changes to criminal penalties, 2) expungement expansion, 3)graduated sanctions for probation supervision, 4) “technical violation” standards for courts’ probation enforcement, 5) training for court personnel, and 6) consideration for mediation expansion. He noted that the District Courts are “on track” for complete compliance with JRA requirements.
Circuit Ct. conference chair Judge Cox agreed with Judge Morrissey’s assessment of progress, commenting that reporting is the biggest challenge, but this may become easier with ongoing implementation of the Courts’ new electronic filing system (known as MDEC). Currently, MDEC has been implemented in less than half the state’s counties, but complete implementation is expected by 2021.
Question: Thinking about expungement, on Oct. 1, how will it play out in terms of personnel needs?
Answer: The number of cases heard is down to 144,000 from 177,000 two years ago. We anticipate that the Courts will be able to handle the anticipated increase in volume.
5. Mediation Report
MACRO director Rosenthal has filed a report recommending 17 best practices to establish new criminal mediation offices across Maryland on a county-by-county basis. 12 out of 24 Md. counties now have criminal misdemeanor mediation programs; two of these are “in-house” run by the State’s Attorneys offices and the remainder are programs operated in cooperation with community mediation groups. Some of these programs offer “day of trial” mediation and others offer pretrial mediation.
MACRO recently has completed nationally-recognized research on which strategies of mediation are most effective. MACRO looks forward to working with counties to develop more criminal mediation around Maryland which can help in diversion of cases from trial and also can help to reduce recurrences for ongoing conflicts.
6. Pretrial / Bail Discussion
Although not technically part of the JROB discussion, Public Defender DeWolfe and legislators discussed the need for pretrial / bail reform in Maryland.
DeWolfe noted that, at the time of the 2014 Pretrial Commission study, only 14 of 24 Maryland jurisdictions had any pretrial community supervision option. Now, by the PD’s count, there are 20 programs but some are very minimal. Some are operated by county detention centers. Baltimore City’s is operated by the state, and some smaller programs are operated with cooperation from state probation offices. Charles, Dorcester, Somerset, and Worcester have no pretrial community supervision options. About six counties (including Baltimore City) use risk assessment, but not all risk assessment tools are validated.
DeWolfe noted that nationally-recognized research suggests that pretrial community supervision programs have results as good as or better than use of commercial bail bondsmen. He also noted that the Md. Court of Appeals still is considering revision of a Court Rule on the standard for use of bail bonds and, of course, the legislature is considering legislation on this topic.
Thanks to the following MAJR Reporters:
- Debbie Friese
- James Rose
- Karen Clark
