Jail and Prison Construction Moratorium Policy Memo for the Infrastructure Bond Bill Conference Committee

Summary: Families for Justice as Healing, The National Council for Incarcerated and Formerly Incarcerated Women, our incarcerated and formerly incarcerated members, directly affected community members, volunteers, and a coalition of more than 90 organizations across the state ask that the Infrastructure Bond Bill Conference Committee include the House language in the final bill for these reasons:

1. The Senate language does not restrict jail construction;
2. The Senate language includes an overbroad and unnecessary exemption that will allow DOC to build additional cells, including cells which are not temporary;
3. The Senate language uses “the net aggregate capacity of the department of correction based on existing design, operational, or rated capacity measurements as of July 1, 2022” as its metric for expansion which is not a meaningful restriction. The net aggregate capacity is an enormous number of beds including MCI-Cedar Junction which is scheduled to be taken offline and MCI-Framingham, which by any capacity measure includes many more beds than the number of women currently incarcerated there. The Senate language would therefore allow those prisons or any other to be rebuilt up to this very high ceiling;
4. The House language already adequately allows for necessary renovations and repairs, and is even more permissive than the original Jail and Prison Construction Moratorium Bills (H.1905/S.2030).

Background on the women’s prison project: For years, the Commonwealth’s women’s prison project has been shrouded in secrecy with fleeting public accountability. In October of 2019, almost 200 women were moved with no warning from MCI-Framingham to the Suffolk County House of Correction. Sheriff Tompkins claimed this was because of plans to eventually close or renovate Framingham; the DOC denied it. Just two months later in December 2019, the initial RFP to study and design the women’s prison was released. That RFP included links to two facility condition assessments that had been completed in July and September 2019, indicating that DOC had been planning for months to consider a women’s prison project while simultaneously refusing to admit that publicly. The RFP was ultimately withdrawn before a contract was formed after Families for Justice as Healing filed a bid protest with the Attorney General’s Bid Unit because the request for proposals had not been advertised as statutorily required.

This RFP finally publicly acknowledged, "The purpose of the study is to develop an implementable project to bring [the Bay State] correctional campus, which is currently occupied by DOC employees only, back into operational mode in order to accommodate approximately 200 female inmates [SIC] (from medium and maximum security levels) who will be relocated from MCI Framingham." Note that while the public would consider this a “new women’s prison” - DOC and DCAMM have always billed the Bay State project as a “renovation,” which is why a strict Moratorium policy is essential.

DOC and DCAMM secretly proceeded to solicit a strategic plan for the women’s prison project a second time through a House Doctor contract between certain architecture firms and the Massachusetts Trial Court - a totally separate state agency - in order to avoid scrutiny and pushback during a public bidding process. This information was leaked, and Families for Justice as Healing again filed a protest with the Attorney General’s Bid Unit. An administrative hearing was scheduled for December 2020 due to the merits of the protest, but DCAMM again withdrew the proposal before the hearing to avoid a ruling.

Later in December 2020, the state then issued a new RFP for the strategic plan for incarcerated women, this time targeting policy consultants instead of architecture firms who had been retained to study, design, and construct courthouses. DCAMM contracted with boutique consulting firm The Ripples Group to produce this “Strategic plan for women incarcerated in the state.” The RFP for the report read, “At this stage, we have decided to take the opportunity to look more broadly at the needs of women in the system, evaluate the potential impacts of the 2018 Criminal Justice Reform Law, and develop a strategic plan prior to hiring a designer to address the facility needs.” The report, which was produced more than a year later in June 2022, was rife with inaccuracies - including basic facts about criminal legal policy affecting women - and recommended building a new women’s prison without considering any alternatives.

Despite the stated intention of the Dec. 2020 RFP for the Strategic Plan - to hire a designer only after the completion of a strategic planning process - in March 2021 the Commonwealth hired HDR Inc. to study and design the women’s prison project pursuant to yet another RFP. DCAMM hired HDR Inc. fifteen months before the Ripples Report was finalized and released. HDR Inc. is a multi-billion international architecture firm that has designed 275 jails and prisons in the United States. In addition to this active contract with the Commonwealth, HDR was hired to design a $79 million women’s jail in Texas. Hiring HDR for the initial design phase is a clear sign that the Commonwealth is serious about doing a massive women’s prison construction project.

Given DOC’s demonstrated pattern of avoiding transparency and accountability as well as the active HDR contract, passing the House Jail and Prison Construction Moratorium language is an essential oversight mechanism.

Number of women incarcerated in MCI-Framingham: There are less than 200 women incarcerated at MCI-Framingham right now. South Middlesex Correctional Center (SMCC) has an occupational capacity of 185 and is currently empty after being temporarily shuttered during the height of the COVID-19 pandemic. Given this relatively small number of incarcerated women, there is no reason to include the Senate exception to build additional cells in order to accommodate women. Instead, there can be a focus on pragmatic opportunities for decarceration.

The population of incarcerated women is significantly lower right now than at any point in recent history:

• 2002-2003 - 624 total women in Framingham, 471 sentenced women
• January 1, 2014 - 672 total women in Framingham, 390 sentenced women
• January 1, 2018 - 434 total women in Framingham, 264 sentenced women
• January 3, 2022 -  179 total women in Framingham, 134 sentenced women

Here is a snapshot of the women currently incarcerated at MCI-Framingham:

Women from Middlesex County [43 women total] as of June 13, 2022

• 27 women in pre-trial detention (sources of detention likely bail, bail revocation, probation detainers, parole detainers, 58A detention)
• 16 women serving county sentences
  

During the height of the COVID19 crisis, the Middlesex County Sheriff’s Department released nearly all of the county-sentenced women at MCI-Framingham to community placements during their sentences. This recent precedent (April 2020) shows it’s entirely possible to release women for their safety and well-being through proactive work by system stakeholders. The legislature should not allow the DOC to build additional cells when system actors can and should pursue reasonable decarceration.  

Women serving state sentences at MCI-Framingham according to DOC Institutional Fact Card, January 2022:

• 28 women serving less than 6 years
• 48 women serving 6+ years
• 23 women serving 2nd degree life sentences and eligible for parole
• 25 women serving life without parole, many of them elders with illnesses and disabilities who have already served decades^[1]

The legislature passed medical parole as part of the 2018 Criminal Justice Reform Act and many feel the DOC has not honored the spirit of the law. There are also glaring racial disparities in who has been granted versus denied relief. Women inside Framingham are aging and suffering from significant disabilities and illnesses - including dementia. Many conditions have been exacerbated by COVID19. Rather than codifying permission for DOC to build additional cells as the Senate language does, the legislature should pass the House language and focus on implementation and expansion of medical parole for elderly and sick women.

Aging and sick women could be released to relatives; adult/Elder Foster care is also a possibility for aging women released from prison in addition to nursing homes and hospitals.

The real threat of new jail construction: The House language addresses “correctional facilities” which includes both jails and prisons. Just last year the Middlesex County Sheriff’s Department opened a new unit for women in the Billerica jail, timed to open exactly when South Middlesex Correctional Center was temporarily shuttered. Families for Justice as Healing and aligned organizations coordinated a massive public push to release women from SMCC on pre-release status directly to home or community placements, which was safest and best for women during the ongoing pandemic. As a result of the public push, DOC released five women to home confinement.

Several women were transferred to the Chicopee jail, and eleven women were moved to the Billerica jail instead of to a safer home or community placement given the ongoing COVID-19 pandemic. Without a strong moratorium that prohibits jail construction, the Commonwealth will remain preoccupied with incarceration projects rather than exploring and implementing  existing, viable, and desperately needed alternatives.

There have also been multiple attempts in recent years to advance a new women’s jail in Middlesex County and regional lockups across the Commonwealth - and vocal public opposition to these projects. There is a rumor of a desire to build a new jail in Duke’s County, where the current population of incarcerated people is 13. We ask the legislature to press pause and avert any contemplated new jail construction projects for five years by including the House language in the final Infrastructure Bond Bill.

Additional practical steps to release women from MCI-Framingham: Decarceration of women from MCI-Framingham is not only possible under current law, it’s reasonable and necessary to protect women’s health and well-being given the current state of the women’s prison and the culture of punishment and violence inside. We urge legislators to consider: who can come home from Framingham right now? If a robust Moratorium policy is passed, over the next five years we can focus on making exit plans for women at Framingham while we pass policies and invest in programs that will stop the flow of women into incarceration.

Viable pathways to releasing women include:

• Clemency - the Baker administration recently granted clemency to two men and our organizations are urging him to release women before the end of his term. The incoming administration has the opportunity to set new clemency guidelines to address harsh and discriminatory sentencing of women, particularly Black and brown women. Legislators can support petitions for clemency with letters of recommendation for their incarcerated constituents.
• Parole - Too often women are repeatedly denied parole for reasons such as insufficient rehabilitative programming when they have completed and repeated everything offered at MCI-Framingham, which has fewer programs available then some of the men’s prisons. For example, 10 women out of 29 women from MCI-Framingham who saw the Board were denied parole in 2020. The legislature is currently considering important reforms to parole - such as prohibiting incarceration for technical violations of parole (H.1798 - which was given an extended deadline in the Joint Committee on the Judiciary until July 22). In 2020, parole revocations comprised 27% of admissions to MCI-Framingham, and according to the Parole Board’s own statistical reports, more than 80% of parole revocations are from technical violations, not new alleged crimes. Parole revocations do not always result in brief stints of re-imprisonment; a Families for Justice as Healing member recently spent 10 years back at Framingham for a technical violation due to a single recurrence of use related to substance use disorder, a health condition. The next gubernatorial administration will have an opportunity to appoint new parole board members to address low parole rates, the harmful practice of parole revocations, and gender and racial disparities in parole decisions. Women should be paroled at the earliest possible hearing date. Reforming parole would decrease the number of women incarcerated at Framingham.
• Community-Based Placements - Diverting women from sentences of incarceration and allowing women to serve their sentences in the community is a grossly underutilized yet established practice that can and should be widely expanded to reduce the population of incarcerated women at MCI-Framingham. In 2018, Families for Justice as Healing and The National Council drafted and advocated for the Primary Caretakers law, which the Legislature passed as part of the Criminal Justice Reform Act. The statute allows parents to motion the court for a community-based sentence so they can continue parenting their children. This is just one avenue of potential relief. For example, in 2021, DOC released five women from South Middlesex Correctional Center to home confinement to complete their sentences in order to temporarily close the facility.^[2]  Similarly, the Middlesex County Sheriff’s Department moved county-sentenced women out of MCI-Framingham and into the community during the height of COVID19. The Middlesex County Sheriff’s Department has a Memorandum of Understanding with at least one community-based organization called Megan’s House where women can be placed instead of being incarcerated. There are many existing programs and organizations in the Commonwealth that could provide women with support and services instead of incarceration and punishment. There are many more that could scale up with adequate resources. A non-exhaustive list of examples of organizations outside of the DOC and Sheriff’s Department serving impacted women include:

• Families for Justice as Healing and The National Council - guaranteed basic income program; guaranteed basic housing program; Reimagining Communities organizing; Women’s Circle;
• Black and Pink Massachusetts Alexa Norena House for Trans Women - a space for women to heal and gain stability after incarceration;
• New Beginnings Re-Entry Services - transitional house for women with a holistic healing approach and full wrap around services;
• Justice for Housing - advocacy for housing placement and vouchers for formerly incarcerated people;
• WE-CAN (Women’s Empowerment through Cape Area Networking) - supportive services including mentoring and personal development programs;
• Brookview House - multi-service organization that develops safe, affordable housing with support services including daycare on site;
• Wildflower Alliance - peer-to-peer support for people who have been impacted by psychiatric diagnosis, trauma, extreme states, homelessness, problems with substances and other life-interrupting challenges

Conclusion: Given this existing landscape, the Senate exceptions are unnecessary and harmful, ceding legislative control to the Department of Correction which has no track record of faithfully carrying out the progressive reforms enacted by this body. Therefore, please include the House version of the Jail and Prison Construction Moratorium in the final Infrastructure Bond Bill.