Justice, Equity and Accountability in Law Enforcement: What’s at Stake

Responding to the calls across the Commonwealth to dismantle structural racism and address police misconduct, the Massachusetts legislature passed race equity and law enforcement accountability legislation on November 30, 2020.  Governor Baker signed the bill after the legislature adopted his amendments placing limits on the law.  This legislation offers concrete, necessary first steps to increase police accountability and racial equity in the Commonwealth, including specific, concrete steps to address harms that young people face from overzealous and biased policing in the areas of expungement, school policing, use of deadly force and a right to bias-free policing.

The legislation expands expungement eligibility of records charged prior to age 21 to rectify the over-criminalization of Massachusetts’ youth of color, by removing barriers to full integration in society in their adulthood. Whether someone wants to work in law enforcement, human services or be a foster parent, a juvenile record makes it hard to impossible to give back to society in these roles. The policing bill proposes three positive changes:
(1) distinguishes between charges that resulted in a conviction or adjudication and those with a more favorable disposition;
(2) increases the number of cases eligible for expungement to no more than two cases resulting in a conviction/adjudication and two cases resulting in a non-conviction/non-adjudication; and
(3) clarifies that multiple charges resulting from the same incident will count as one, recognizing the over-charging of youth.

Unfortunately the bill maintains the list of over 160 offenses that have a life-time ban on expungement eligibility, rejecting language that would have limited the exclusion to “felony convictions” of these offenses.

The legislation also proposes bold reforms heeding the calls of students and parents to shrink the school-to-prison pipeline. From our years of research and work on this issue, a consistent theme is that the triggering incident for school-based arrests is rarely, if ever, criminal in nature. However, the response of those in authority – including cases where school administration calls the police, or the SRO directly intervenes – results in criminal charges. In a prior report, Arrested Futures, CfJJ quoted the frustration individual officers feel about being used as disciplinarians stating, “Police in particular acknowledged that arrest was not a useful way to address underlying discipline issues, one noting that you ‘can’t arrest yourself out of [disciplinary] problem[s]’.”

The legislation:
(1) limits the sharing of student information with city, state and federal law enforcement;
(2) removes the state mandate for every school district to have an SRO;
(3) requires more transparency on the performance of SRO’s and how school resources are spent; and
(4) requires training to ensure than in the future, SRO’s that do work with students understand how children are different than adults.

Unfortunately the bill reiterates qualified immunity protections for employers of SROs and creates a 25-member commission to re-create a model memorandum of understanding (MOU) between school districts and police departments even though such a model MOU was developed in 2018 with key protections for students.

The legislation creates standards on the use of deadly force, no-knock warrants, dogs, tear gas, pellet guns requiring that such use of force be a necessary last resort to prevent an immediate threat of serious injury or death, and that alternative techniques have been tried and failed based on the totality of circumstances that take contextual factors in the decision to use the above law enforcement tactics. The bill also creates a “duty to intervene” and report unreasonable or unnecessary use of force based on the above standards witnessed by another law enforcement officer.

The bill adopted the Governor’s amendments removing key definitions of “necessary”, “immediate threat” and “totality of circumstances” that weaken standards on use of force and the duty to intervene.

The legislation creates an affirmative right to bias-free policing under the Massachusetts Civil Rights Act, which could result in the decertification of the law enforcement officer found to have violated that right.

The bill adopted the Governor’s amendments allowing demographics to be used in policing decisions if they "are an element of the crime" or if the law enforcement officer states that the difference in treatment was not due to bias.

What comes next?