By Patrice Brymner

The Massachusetts Sentencing Commission publishes a report each year cataloging sentencing practices throughout the state. The Survey of Sentencing Practices for fiscal year 2004, published in April 2005, evaluates current practices compared to what sentencing would be under the commission’s proposed, but not enacted, sentencing guidelines. The report includes, among other things, statewide statistics regarding offenses charged, conviction and incarceration rates, defendant characteristics, sentence length, and conviction statistics by district or superior court.

The Sentencing Commission’s proposed guidelines, introduced in 1996, employ a sentencing “grid,” providing sentence ranges according to the seriousness of an offense and a defendant’s criminal history. Under the proposed grid system, sentences for some drug offenses, which carry mandatory minimums, can be reduced under certain circumstances. Other mandatory minimums, for drunk driving and firearms offenses, cannot be reduced. The proposed guidelines would also create parole eligibility at two-thirds a maximum sentence for state and county sentences. Several versions including a grid system have been proposed since then, but none has been enacted by the legislature.¹

Many courts currently use the commission’s proposed sentencing grid on a voluntary basis. Most sentences surveyed for FY04, 88.5%, fell within proposed grid ranges. Of the 11.5% of sentences that fell outside the grid ranges, 3.5% were shorter than the grid guidelines, and 8% were longer.

The following is a brief showing of some highlights from the report, focusing on conviction and incarceration rates, sentence length, defendant characteristics, offenses charged, and mandatory minimum sentences. The report covers much beyond what is discussed here, and readers are encouraged to view the entire 148-page report, and reports for previous years, at www.mass.gov/courts/admin/sentcomm.html.

Conviction and Incarceration Rates

In FY04, less than 40% of convictions resulted in incarceration. According to the commission’s report, about 56,286 defendants were convicted in Massachusetts, and about 36%, nearly 20,000 individuals, were sentenced to incarceration in either a state prison (DOC) or a county house of correction (HOC).² Nearly all incarcerated defendants were sentenced to county facilities: 90.9%, or 17,644, were sentenced to HOCs (county facilities), and only 9.1% or about 1,716 were sentenced to the DOC. Nearly 37,000 were convicted, but not incarcerated; they were ordered to probation, fined, or given some other non-incarceration punishment.

The report includes a breakdown of convictions by court department throughout the fourteen counties. The number of convictions in a given county ranged from only 71 in Nantucket County to 8,928 in Worcester County. Eight of the fourteen counties, Worcester, Suffolk, Middlesex, Essex, Hampden, Bristol, Plymouth, and Norfolk accounted for 88.8% of all convictions.

Barnstable had 2,340 convictions for 4% of the statewide total; Berkshire: 1,639 for 3%; Bristol: 5,442 for 10%; Dukes: 128 for 0%; Essex: 6,292 for 11%; Franklin: 734 for 1%; Hampden: 5,577 for 10%; Hampshire: 1,405 for 2%; Middlesex: 7,709 for 14%; Nantucket: 71 for 0%; Norfolk: 3,632 for 6%; Plymouth: 4,016 for 7%; Suffolk: 8,373 for 15%; and Worcester: 8,928 for 17%.

Sentence Length

Under current law, judges have broad discretion when imposing minimum/maximum ratios for state prison sentences. A sentence can be for five to fifteen years, with the minimum sentence (five years) set at 33% of the maximum (fifteen years). A sentence ratio can also be five years to five years and one day, with the minimum sentence 99% of the maximum. This one-day difference in minimum/maximum sentence ratio is a common practice today, and precludes parole eligibility. This type of sentencing, employing a minimum/maximum range, is not available for county sentences.

Under the commission’s proposed guidelines, a minimum sentence would always be set at two-thirds the maximum, and parole eligibility would always be set at the minimum sentence. Judges would no longer have the option of the one-day minimum/maximum difference.

In FY04, most mandatory drug offenses carried the one-day difference in sentence ratio. Of the 429 state prison sentences for mandatory drug offenses, 252 (58.7%) of them were given a one-day difference. The rate was lower for other offenses: 448 of 1,149, or 39%, received a one-day difference in sentence. Overall, 44.4% of state prison sentences had a one-day difference, meaning that only 56.6% of defendants could be considered for parole release at the end of their minimum sentence.

The median minimum DOC sentence was 41 months, and the median maximum DOC sentence was 60 months. Of those sentenced to the DOC, 43 defendants received life sentences.

Sentences to HOCs do not have a minimum and maximum sentence and range from one day to thirty months (2½ years). For most HOC sentences of 60 days or more, parole eligibility is set at one-half the sentence length. Under the commission’s proposed guidelines, HOC sentences would have a minimum and maximum; the minimum would be set at two-thirds the maximum and would represent parole eligibility. The mean HOC sentence for FY04 was 6.8 months, and the median HOC sentence was 4.3 months. Just over half of the HOC sentences, 51.3%, were five months or less, and another 19.4% were between six and eight months.

Defendant and Offense Characteristics

For all persons convicted in FY04:

• 47,845 (85%) were men, and 8,441 (15%) were women
• The mean age was 32.7 years and ranged from 17 to 91 years
• The largest group by age was 20 to 24 years, with 11,982 convictions
• Most, 61.5%, were white; 17.6% were African-American; 16.9% were Latino; 2.3% were “other” races; and race was unknown for 1.8%
• Nearly all defendants, 90.1%, were born in the United States: 36,410 (64.7%) born in Massachusetts and 14,299 (25.4%) born in other U.S. states (mostly in the Northeast). In addition, 4,652 (8.2%) were born outside the U.S., and place of birth was unknown for 952 (1.7%)

For all convictions in FY04:

• 11,944 (24.3%) were for property offenses
• 11,183 (22.8%) were for person offenses
• 10,674 (21.7%) were for motor vehicle offenses
• 8,936 (18.2%) were for drug offenses
• 5,771 (11.8%) were classified as “other” offenses, including weapons and public order, among other offenses
• 574 (1.2%) were for sex offenses

Missing from the above percentages are another 6,308 convictions for OUI, or operating under the influence (drunk driving) offenses and 186 convictions for mandatory firearms offenses.

Drug Offenses and Mandatory Minimum Sentences

There were 8,936 defendants convicted of drug offenses. Not all drug offenses carry mandatory minimum sentences. In fact, only 766 convictions were for mandatory drug offenses. A little over half, 54.1%, of these convictions were for possession offenses, and 43.8% were for distribution offenses. Another 2.1% are listed as “other.”

Of the 766 defendants convicted of mandatory drug offenses, about 43.9% (336) were sentenced to a HOC, and about 56.1% (430) went to the DOC. Most drug sentences were for one of four offenses: distribution within a school zone (298 convictions; two-year sentence), distribution of cocaine (158 convictions; one- to two-year sentence), trafficking cocaine - 14 to 28 grams (110 convictions; three-year sentence), and trafficking cocaine - 28 to 100 grams (70 convictions; five-year sentence). The longest sentence for a mandatory drug offense was 15 years for trafficking 200-plus grams of cocaine; 13 people received that sentence.

By far, the most common mandatory drug sentence was for distribution within a school zone, with 298 convictions (38.9% of all mandatory drug convictions) sentenced to the two-year minimum. This figure includes only those convictions where the school zone violation was the “governing offense;” other school zone convictions, where another charged offense carried a greater sentence, are not included.

Other Mandatory Minimum Sentences

Drunk driving and firearms offenses also carry mandatory minimums, but are treated separately in the report. Under the commission’s proposed guidelines, these offenses would not be eligible for grid sentencing. In 2004, there were 6,308 convictions for OUI offenses, making this the most common conviction carrying a mandatory minimum sentence. Most sentences, 60% (3,782), resulted in probation, and 18.5% (1,159) resulted in fines. Only 19.9% of OUI convictions (1,2357) resulted in incarceration, with sentences ranging from less than one month to thirty months. Most of those sentences fell between two and fourteen months. All OUI incarceration sentences were to HOCs, although some women may serve their HOC sentences at a state prison.

For more information about the Massachusetts Sentencing Commission, go to http://www.mass.gov/courts/admin/sentcomm/mscoverview.html

¹ For more information on various proposed sentencing guidelines, the grid, see “Current Proposals for Sentencing Guidelines: Background and Basics” on the CJPC website.
² This number excludes OUI and firearms offenses.

By Patrice Brymner

On November 15, 2005, the Massachusetts House of Representatives concluded four hours of debate over reviving capital punishment with a decisive “no” vote (99 – 53). Thus, Governor Mitt Romney’s self-proclaimed “gold standard” of death penalties was defeated and we were spared a backward slide on behalf of his political aspirations.¹

As Romney positions himself for a possible presidential run, he appears to have attempted to co-opt our legislature to bolster his electability. Success was not necessary for Romney to benefit; he now has proof of his commitment to capital punishment for use on the national stage. Thankfully, the legislature’s swift action offered little stage time during the debate.

Romney claimed we needed capital punishment to reduce crime. His self-dubbed “model for the nation” would have limited execution to cases of deadly terrorism, killing sprees, murders involving torture, and the killing of law enforcement authorities. Our criminal justice system, however, has survived nearly 60 years without a single execution. Over those decades, we have not tried many deadly terrorists, have not witnessed a rising number of spree killings, and have not prosecuted growing numbers of torturing murderers. Law enforcement personnel, who must be given the highest degree of protection possible, for their sake and the sake of public safety, have not become particular targets for murder.²

The governor claimed his plan was “fool proof” because it would have used tight legal standards and required advanced scientific proof. However, current and former prosecutors opposed the bill, citing the severe lack of scientific evidence in murder cases, the risk of flawed convictions, and a shortage of adequate counsel to defend capital cases in Massachusetts. Suffolk Sheriff Andrea Cabral (former Assistant District Attorney), Norfolk District Attorney Bill Keating, Middlesex District Attorney Martha Coakley, and Essex District Attorney Jonathan Blodgett all testified against the bill at a Statehouse hearing on July 15, 2005.

Compelling arguments against capital punishment are widely understood and well documented. Capital punishment does not deter crime, is not cost-effective, does not provide closure to victims’ families³, is used disproportionately against racial minorities and the poor, and always risks wrongful conviction and execution.

Beyond practical failures and obvious dangers, Romney’s bill would have reversed our evolution as a just and fair society. The trend in this country and across the world is decidedly away from execution.

While the number of states with capital punishment remains high (38), execution rates are low or non-existent in most of those states. Since 2000, states and the federal government have performed 399 executions. The vast majority (359) were in only 10 states;⁴ Texas alone performed 156 executions. The remaining 40 executions were performed by 14 other states and the federal government.⁵

Massachusetts is among the seventeen states, in addition to the District of Columbia and the U.S. Military, that either do not have or do not use capital punishment. Twelve states, including Massachusetts and the District of Columbia do not have death penalties at all.⁶ Five other states and the U.S. Military officially have death penalties, but do not execute prisoners. After the U.S. Supreme Court reinstated capital punishment in 1976, Kansas, New Hampshire, New Jersey, New York, and South Dakota did not resume execution,⁷ nor has the U.S. Military.

Globally, societies have evolved away from capital punishment for the last 100-plus years. Only a handful of countries are now responsible for the majority of the world’s executions: China, Iran, Saudi Arabia, and the U.S. Thankfully, Massachusetts will not contribute to that distinction for the sake of Romney’s political career. Perhaps the Commonwealth has learned from its own long history. After three hundred years of experience in capital punishment, the Commonwealth performed its last execution 1947, long before the Supreme Judicial Court ended execution legally in 1984.⁸ Continued legislative courage can render capital punishment obsolete as a political tool, and our politicians can then build healthier platforms for criminal justice.

Links to several comprehensive death penalty websites are available at www.cjpc.org/dp_organizations.htm.

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¹ CJPC’s statement of guiding principles includes opposition to the death penalty. See http://www.cjpc.org/about_us.htm. Also see CJPC’s previous analysis of Romney’s bill and CJPC’s position against capital punishment as adopted May 23, 2003.
² According to the FBI, between 1995 and 2004, three law enforcement officers were feloniously killed in Massachusetts. Officers killed during that 10-year period in the Northeast: Connecticut, 2 (death penalty); Maine, 0 (no death penalty); Massachusetts, 3 (no death penalty); New Hampshire, 3 (death penalty, but not in use); New Jersey, 9 (death penalty, but not in use); New York, 22 (death penalty, but not in use); Pennsylvania (death penalty), 14; Rhode Island, 0 (no death penalty); Vermont, 0 (no death penalty). Based on information from Law Enforcement Officers Killed or Assaulted, FBI, at www.fbi.gov/ucr/ucr.htm#leoka.
³ Research indicates that witnessing an execution can be extremely traumatic; this “secondary trauma” can affect victim’s families, prison officials, members of the media, and victim/witness assistants. For testimony regarding the secondary trauma of witnessing executions, see: www.njadp.org/forms/secondarytrauma.html.
The Texas Department of Criminal Justice recognizes trauma to victim/witnesses and provides pre- and post-execution assistance. See www.tdcj.state.tx.us/victim/victim-viewexec.htm. For first-hand anecdotal accounts see Carroll Pickett with Carlton Stowers, Within these Walls: Memoirs of a Death House Chaplain (New York: St. Martin’s Press, 2002).
⁴ From 2000 to date in 2005, the following states have executed the following numbers of people: South Carolina, 10; Alabama, 15; Florida, 16; Georgia, 16; Ohio, 17; Virginia, 21; North Carolina, 23; Missouri, 25; Oklahoma, 60; and Texas, 156, based on information from the Death Penalty Information Center at www.deathpenaltyinfo.org.
⁵ Connecticut, 1; Maryland, 1; New Mexico, 1; Tennessee, 1; Washington, 1; Louisiana, 2; Mississippi, 2; Arizona, 3; Federal Government, 3; Nevada, 3; California, 4; Delaware, 4; Arkansas, 5; and Indiana, 9. Based on information from the Death Penalty Information Center at www.deathpenaltyinfo.org.
⁶ Alaska, Hawaii, Iowa, Maine, Massachusetts, Michigan, Minnesota, North Dakota, Rhode Island, Vermont, West Virginia, Wisconsin, and the District of Columbia.
⁷ Capital punishment in Kansas and New York was declared unconstitutional in 2004.
⁸ See http://www.deathpenaltyinfo.org/ESPYstate.pdf.

By Eric Blumenson

We are proud that CJPC members represent a diverse cross section of activists, academics and people directly affected by the policies we work to improve. The following is testimony submitted to the Judiciary Committee by Eric Blumenson, a professor at Suffolk University Law School. Eric Blumenson and Eva Nilsen are co-authors of “Policing for Profit” 65 U. Chi. L. Rev. 35 (1998).

I am a Professor of Law at Suffolk Law School. I am writing to urge you to support House Bill 1843, which would expand the Commonwealth’s Drug Treatment Program and provide for funding in part through funds forfeited from drug offenders. I believe strongly that passage of House 1843 is essential if we are to turn the war on drugs into an effective drug policy -- one with better prospects of curbing drug abuse, helping its victims recover, and removing the distortions in the law enforcement agenda that our present forfeiture law encourages. In this letter, however, I want to concentrate on one aspect of the bill: the redirection of 50% of forfeited assets from its current destination -- directly into law enforcement, with a large share going to the very police agency that seized it – into a drug treatment fund.

For the past several years I have been studying the consequences of giving law enforcement the power to fund itself in whatever amount its agents can seize, and reported many of these findings in an article published in 1998 in the Univ. of Chicago Law Review.¹ (I enclose a copy of that article should it be of interest.) My focus was primarily the federal law, but with respect to funneling seized assets back into the budgets of the police agency that seized them, our state law and the federal law are alike. Along with my co-author, I concluded that this arrangement poses real threats to effective crime control and evenhanded justice -- and also to core constitutional principles.

The effect of this asset disposition arrangement is that small police forces that transfer their officers to drug law enforcement, and away from other pressing law enforcement needs, can enhance their annual budget by a factor of two or three times, or in the case of Little Compton, R.I., ten times thanks to a single operation. At the federal level, a 1993 Justice Department commissioned study heralded the prospect of “free” drug law enforcement, noting that “one 'big bust' can provide a [drug] task force with the resources to become financially independent. Once financially independent, a task force can choose to operate without Federal or state assistance." But law enforcement agencies that can finance themselves through asset seizures need not justify their activities through any regular budgetary process. The threat is the creation of self-financing law enforcement agencies, largely able to set their own agenda, and accountable to no one -- not a legitimate organ in a democracy. Such a prospect was an anathema to the framers, who warned that “the purse and the sword ought never to get into the same hands, whether legislative or executive," and therefore designed a government of separate branches which serve to check and balance each other.

Whether forfeiture’s financial rewards will ultimately prove large enough to spawn the kind of permanent, independent sector of unaccountable law enforcement agencies that the Justice Dept. envisions is not yet clear. What is clear is that these rewards already have influenced the law enforcement agenda of agencies that have grown dependent on them. The risk, and according to our study increasingly the reality, is that the criminal justice system can be held hostage to the exigencies of law enforcement’s self-financing efforts, endangering the public welfare in at least two ways:

First, burdening law enforcement with this conflict of interest can badly distort law enforcement policies. Economic temptation hovers over all drug enforcement decisions. Indeed, the Justice Department’s study suggests precisely this focus in urging that "task force members to know the major sources of these assets and whether it is more efficient to target major dealers or numerous smaller ones." . . . Worse, by linking police budgets to drug law enforcement, forfeiture laws induce police and prosecutors to neglect other, often more pressing crime problems.

Second, forfeiture rewards directed exclusively to law enforcement threaten unjust treatment of our citizens. This is most obvious at the sentencing of drug offenders, where forfeiture laws provide an avenue for affluent defendants to buy their freedom. In eastern Massachusetts, Boston Globe reporters found that agreements to forfeit $10,000 or more bought elimination or reduction of trafficking charges in almost three-quarters of such cases. The Globe noted that 12% of the prosecutors’ budgets was financed through forfeiture income.

Of course, this bill would not eliminate forfeiture of funds to the state. It would rather redirect them to drug treatment in a way that would eliminate the conflict of interest that distorts crime control agendas. It would return to this legislature the power to decide the size and shape of our law enforcement agencies, rather than abandoning that power to the agencies themselves. And it would safeguard the constitutional requirements found in the due process clause -- that prosecutorial agencies not be significantly burdens by an economic conflict of interest² -- and in the separation of powers framework, which requires the legislature to appropriate funds to the executive, so that the legislature maintains oversight over the size and operations of executive agencies.

As to these constitutional issues, I would like to enter the study published in the Chicago Law Review into the record. In this article we also demonstrate that some unsavory trends in criminal justice today -- the law enforcement agenda that targets assets rather than crime, the 80% of seizures that are unaccompanied by any criminal prosecution, the plea bargains which favor drug "kingpins" and penalize the "mules" without assets to trade, the overkill in agencies involved in even minor arrests, the massive shift towards federal jurisdiction over local law enforcement -- is largely the unplanned byproduct of this economic incentive structure.

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¹ “Policing for Profit,” 65 U. Chi. L. Rev. 35 (1998).
² See Marshall v. Jerrico, 446 US 238 (1980).