United States District Court, D. Massachusetts
MEMORANDUM AND ORDER
B. SARIS CHIEF U.S. DISTRICT JUDGE
February 21, 2018, this Court issued a Memorandum and Order
concerning the consent decrees governing the entry-level
hiring procedures for police and fire departments in certain
cities in Massachusetts. Boston Chapter, NAACP, Inc. v.
Beecher, 295 F.Supp.3d 26 (D. Mass. 2018). The Court
assumes familiarity with the opinion.
parties jointly moved to modify the consent decrees on the
ground that “the consent decrees were actually having
the adverse and unintended effect of ‘capping'
minority representation in certain remaining consent-decree
cities.” Id. at 29. While most of the proposed
modifications were agreed upon, the parties disagreed on the
methodology for determining the “qualified labor
pool” for purposes of measuring when “rough
parity” had been reached. Id. at 31. Both
parties agreed to hire Dr. Bryan Ricchetti, a well-qualified
labor economist who issued a report. Dkt. No. 15. The Court
ruled on most of the challenges to his calculations but had
questions about the data he relied on with respect to
criminal records. Specifically, my concern focused on the
data used to measure the statutory disqualification based on
an applicant's criminal record. I wrote:
Dr. Ricchetti adjusted the qualified labor pool population to
reflect the statutory disqualification based on a criminal
record. To determine the qualified labor pool population for
police officers, Dr. Ricchetti relies on the 2009 National
Longitudinal Survey of Youth (“NLSY”) which
calculates “the share of the population that has ever
been incarcerated by race, age, gender, and education”
and compares this nationwide data with the Bureau of Justice
Statistics inmate surveys from 1997 and 2003 for purposes of
robustness. Ricchetti Report at 9. Dr. Ricchetti opines that
“incarceration is typically associated with more
serious crimes, and is, thus a reasonable proxy” for
someone being disqualified from the labor pool. Id.
at 10. He acknowledges that incarceration rates are an
“imperfect proxy” because they can be both over-
and underinclusive. Id. “[I]t is possible that
an applicant who was previously incarcerated for a relatively
minor offense would not be disqualified from the labor pool.
On the flip side, it is also possible that some applicants
might have never been incarcerated in their life despite
having committed one of the crimes that disqualifies them
from the job.” Id. Notwithstanding these data
limitations, I agree with Dr. Ricchetti that incarceration is
typically associated with more serious crimes and is, thus, a
reasonable proxy for the likelihood of a person having
committed a serious crime that would disqualify her from
being a police officer. See Ricchetti Report at 10.
Plaintiffs challenge the data on the ground that the
incarceration rates are based on national statistics. Dr.
Ricchetti relies on the NLSY data, but he concedes that
consent-decree-city incarceration rates may differ from
national rates. However, he was not “aware of data that
could inform the direction of the potential bias, if
Based on the statistics from the 2016 Massachusetts
Sentencing Commission report, cited by Defendants, the Court
is not persuaded that the national incarceration rates are a
reasonable basis for evaluating the qualified pool for police
officers. The Commission's statistics indicate that 655
Blacks are incarcerated per 100, 000 in the population in
Massachusetts, compared to 1, 627 Blacks per 100, 000 in the
nation. However, 401 Hispanics are incarcerated per 100, 000
in Massachusetts, as opposed to 362 per 100, 000 in the
nation, Mass. Sent'g Comm'n, Selected Race Statistics
1, 2 (2016) available at
Thus, the combined statewide rate of incarceration of
minorities appears to be lower than the nationwide rate. The
Court does not understand the precise impact of this
Sentencing Commission data on the qualified labor pool, but a
supplemental report is necessary to reflect available
statewide data or to explain why that data is inapplicable or
unreliable. Plaintiffs also contend that Dr. Ricchetti's
incarceration analysis is inaccurate because he does not use
city-level incarceration data. The Court disagrees that such
localized data are necessary because there is no evidence
that the data vary from city to city.
Plaintiffs point out the criminal-record disqualification for
entry-level firefighters is much narrower than the factors
that lead to disqualification of entry-level police officers.
Individuals are only prohibited from becoming firefighters if
convicted of “any crime” within the last year
(with certain exceptions). Mass. Gen. L. ch. 31, § 50. I
agree with Plaintiffs that national data concerning the
population of minorities incarcerated is not a fair proxy for
the population convicted of any crime in the previous year.
It is unclear if the Massachusetts Sentencing Commission has
annual conviction statistics that would be helpful. If so,
the report may be supplemented.
Id. at 32-33.
response, on April 23, 2018, Dr. Ricchetti submitted a
Supplemental Report. Dkt. No. 65 (“Supp. Rep.”).
The Supplemental Report persuasively noted two shortcomings
of the Massachusetts Sentencing Commission data: 1) the data
did not report incarceration rates broken down by
“race, age, and education at the same time, ”
which were essential to defining the qualified labor pool;
and 2) the data only accounted for incarceration rates at a
single point in time, instead of the probability of ever
being incarcerated for people of a given race, age, and
education. As such, because an applicant's entire
criminal record is relevant when applying for police officer
jobs, Dr. Ricchetti opined that the Sentencing Commission
data would be underinclusive for purposes of calculating the
qualified labor pool for the police departments. He
corroborated his original eligibility adjustment with data
from the Massachusetts Department of Correction. Supp. Rep.
at 5. Therefore, he concluded that the NLSY data was more
reliable than the Massachusetts Sentencing Commission data
with respect to the qualified labor pool available for
entry-level police officer hiring.
respect to applicants for entry-level firefighter positions,
however, Dr. Ricchetti did find it was possible to use
Massachusetts-specific data. Id. at 4-5.
Specifically, he found that the Department of Corrections
data were reliable for calculating the labor pool for
firefighters in various age ranges on a year-to-year basis
from 2013 through 2017 because individuals are prohibited by
statute from becoming firefighters only if convicted of a
crime within the previous year. All parties agree with this
urge the Court to jettison any criminal history data from the
police qualified-labor-pool analysis since the only data
available is national. While state-wide data is preferable,
based on national data as well as data from the Massachusetts
Sentencing Commission and the Department of Corrections, I
find that failing to account for any criminal history for
police officer applicants would create a significantly
overinclusive qualified labor pool. Sadly, according to the
Department of Corrections data provided by the government,
minorities formed a majority of all prison releases in all
cities except Lowell over a six-year time period (2011-2016).
Dkt. No. 70-1. On average, more than seven out of every eight
inmates returning to Springfield and Holyoke are either Black
or Hispanic or both. The NLSY data, while imperfect, is the
best and most appropriate labor pool information available to
reflect the criminal record history of minorities in the
consent decree cities. In light of the Court's
constitutional obligation to adopt a narrowly tailored
remedy, see Mackin v. City of Boston, 969 F.2d 1273,
1275 (1st Cir. 1992), opinion corrected (July 20,
1992), the Court adopts the methodology proposed by the
expert both for the police and firefighter qualified labor
parties shall confer and file a joint proposed order
encompassing the relevant parity benchmarks for the remaining
consent-decree cities in ...