MA Proposals
Current Proposals for Sentencing Guidelines:
Background and Basics
Background and Basics
By Patrice Brymner, Esq.
For The Criminal Justice Policy Coalition, July 2004
For The Criminal Justice Policy Coalition, July 2004
INTRODUCTION
The Massachusetts legislature is considering four proposals for criminal sentencing guidelines in a stated effort to establish consistent sentencing. The bills and their political history are complicated, but the issues are fundamental and must be understood in order to move toward fair, cost-effective, and humane sentencing policies.
The Massachusetts Sentencing Commission, established in 1993, first proposed guidelines in 1996 in response to concerns that existing practices produced inconsistent and unfair results. According the Commission, the proposal was an attempt to create uniform, fair, and consistent sentencing guidelines by limiting, but not eliminating, judicial discretion. Several bills have come and gone since then, and the four that remain are either identical to or modifications of the original proposal. The Commission’s original proposal remains intact in two identical bills - Senate No. 219 and House No. 3302. The two other bills, House No. 2749 and House No. 2750, are modifications of that proposal and are reportedly favored by prosecutors.
The four bills seem similar at first glance, but their likely results vary dramatically. Both H.2749 and H.2750 would increase sentences for many crimes and raise severity rankings for a broad range of other crimes, leading indirectly to longer sentences. With these modifications, the bills would require prison time in cases that could receive less severe punishment under the original proposal. These bills limit the use of mitigating circumstances to justify shorter sentences, and would prohibit discretion in mandatory sentencing for some drug offenses. The result would likely cost the state considerably more in tax dollars, and could cause a staggering explosion in the prison population.
The Criminal Justice Policy Coalition has no position on sentencing guidelines, generally. Thus, this paper does not endorse any of the proposals, but is meant to provide information necessary to understand currently pending legislation.
The Massachusetts Sentencing Commission, established in 1993, first proposed guidelines in 1996 in response to concerns that existing practices produced inconsistent and unfair results. According the Commission, the proposal was an attempt to create uniform, fair, and consistent sentencing guidelines by limiting, but not eliminating, judicial discretion. Several bills have come and gone since then, and the four that remain are either identical to or modifications of the original proposal. The Commission’s original proposal remains intact in two identical bills - Senate No. 219 and House No. 3302. The two other bills, House No. 2749 and House No. 2750, are modifications of that proposal and are reportedly favored by prosecutors.
The four bills seem similar at first glance, but their likely results vary dramatically. Both H.2749 and H.2750 would increase sentences for many crimes and raise severity rankings for a broad range of other crimes, leading indirectly to longer sentences. With these modifications, the bills would require prison time in cases that could receive less severe punishment under the original proposal. These bills limit the use of mitigating circumstances to justify shorter sentences, and would prohibit discretion in mandatory sentencing for some drug offenses. The result would likely cost the state considerably more in tax dollars, and could cause a staggering explosion in the prison population.
The Criminal Justice Policy Coalition has no position on sentencing guidelines, generally. Thus, this paper does not endorse any of the proposals, but is meant to provide information necessary to understand currently pending legislation.
BACKGROUND
What follows is a brief history of the development of the three models as they have emerged: “Model One” (S.219/H.3302), the Sentencing Commission’s proposal; “Model Two” (H.2750), a more punitive version of that proposal; and “Model Three” (H.2749), an even more punitive version.
|
MODEL ONE |
MODEL TWO |
MODEL THREE |
|
|
Senate No. 219 |
House No. 3302 |
House No. 2750 |
House No. 2749 |
|
Sentencing Commission Guidelines (1996) |
Sentencing Commission Guidelines (1996) |
Modified Version (2001) |
Modified Version plus Marini Amendments (2001) |
The Massachusetts Sentencing Commission, established in 1993, included three judges, three prosecutors, three defense counsel, and representatives from the Executive Office of Public Safety, the Massachusetts Sheriff's Association, the Department of Correction, the Parole Board, the Office of the Commissioner of Probation, and the Victim Witness Assistance Board. After two years of extensive research, the Commission introduced new guidelines in 1996. That proposal is now found in S.219 (Senators Walsh, Coughlin, Sprague, Shannon, et al.), and H.3302 (Representatives Linsky, Festa, Petersen, Story, Kocot, and Marzilli). Both bills are now in the Joint Committee on Criminal Justice.
Model One uses a grid containing sentence ranges based on the severity of a crime and a defendant’s criminal background. Judges may move either up or down from the sentence ranges, if the judge provides a written explanation for the departure. Mandatory minimum sentences would stay in place, but judges may bypass mandatory minimums under certain circumstances in some drug cases.
In response to the Commission proposal, prosecutors complained that sentence ranges should be higher, especially for certain violent crimes, and that judicial discretion should be further limited. In 1997, the Massachusetts District Attorneys Association proposed its own bill, including much higher sentence ranges and leaving mandatory minimum drug sentences untouched. The bill eventually died, but it opened the door for modifications and amendments to the Commission’s proposal.
Sentencing reform then stalled until 2000, when a high-profile case forced the question. That year, a Superior Court judge sentenced an admitted child molester to probation and home confinement. Outrage among prosecutors and the public re-ignited the debate, and in October 2001, five years after the Commission first introduced its proposal, the Joint Committee on Criminal Justice reported favorably on a more punitive modification of the original bill.
The bill went quickly to the floor and was made even more stringent when House Minority Leader Francis Marini (R-Hanson) led efforts to tighten the guidelines with several amendments. One of those amendments increased punishment for 30 crimes, ranging from weapons possession to child molestation, and another created an additional hurdle for downward departure from mandatory drug sentences. House members approved the amendments on a voice vote without a reading[i] and passed this further modified version. The Senate did not act on the bill before the end of that session. The “Marini Amendments” include:
The version passed by the Joint Committee was reintroduced for the current session as H.2750 and is discussed here as Model Two. Model Two, proposed by Representatives Tobin, Festa, Linsky, and Garry, was referred to the Joint Committee on Criminal Justice January 1, 2003. The version with the Marini Amendments was reintroduced as H.2749, and is in the same committee. It is referred to here as Model Three.
Model One uses a grid containing sentence ranges based on the severity of a crime and a defendant’s criminal background. Judges may move either up or down from the sentence ranges, if the judge provides a written explanation for the departure. Mandatory minimum sentences would stay in place, but judges may bypass mandatory minimums under certain circumstances in some drug cases.
In response to the Commission proposal, prosecutors complained that sentence ranges should be higher, especially for certain violent crimes, and that judicial discretion should be further limited. In 1997, the Massachusetts District Attorneys Association proposed its own bill, including much higher sentence ranges and leaving mandatory minimum drug sentences untouched. The bill eventually died, but it opened the door for modifications and amendments to the Commission’s proposal.
Sentencing reform then stalled until 2000, when a high-profile case forced the question. That year, a Superior Court judge sentenced an admitted child molester to probation and home confinement. Outrage among prosecutors and the public re-ignited the debate, and in October 2001, five years after the Commission first introduced its proposal, the Joint Committee on Criminal Justice reported favorably on a more punitive modification of the original bill.
The bill went quickly to the floor and was made even more stringent when House Minority Leader Francis Marini (R-Hanson) led efforts to tighten the guidelines with several amendments. One of those amendments increased punishment for 30 crimes, ranging from weapons possession to child molestation, and another created an additional hurdle for downward departure from mandatory drug sentences. House members approved the amendments on a voice vote without a reading[i] and passed this further modified version. The Senate did not act on the bill before the end of that session. The “Marini Amendments” include:
- Increased sentence ranges for many crimes
- Offenses shifted into higher categories of severity on the grid
- Grounds for downward departure from grid ranges limited to an exclusive list
- Downward departure from mandatory drug sentences only for first/lesser offenses
- No downward departure for repeat drug offenses and more serious trafficking charges (10- and 15-year mandatory sentences)
- No downward departure from drug offenses involving sale to a minor
- Post-release supervision available for only sentences of one year or more in prison
The version passed by the Joint Committee was reintroduced for the current session as H.2750 and is discussed here as Model Two. Model Two, proposed by Representatives Tobin, Festa, Linsky, and Garry, was referred to the Joint Committee on Criminal Justice January 1, 2003. The version with the Marini Amendments was reintroduced as H.2749, and is in the same committee. It is referred to here as Model Three.
HOW THE GUIDELINES WORK
All models incorporate the basic structure used by the Commission, including a grid containing sentence ranges; a master crime list; and stated circumstances for departure from the grid ranges. The Model One grid is used here for illustration.
The grid contains five criminal history groups ranging from “minor/no record” to “serious/violent,” which are defined elsewhere in the proposals, on the horizontal axis. Offense levels, also defined elsewhere, are listed in the vertical axis (left) on a scale of one to nine, with the highest (most serious) being murder. To find the applicable sentence range in a given case, judges identify the offense level and the defendant’s history, and then use the range in the corresponding grid cell.
The grid cells fall into one of three “zones”: the “incarceration zone;” the “discretionary zone;” and the “intermediate zone.” In the incarceration zone imprisonment is mandatory, given the crime and the defendant’s background. In the discretionary zone both incarceration and less severe alternatives are available, depending on the offense and the defendant’s background. In the intermediate zone, incarceration is not an option, and judges are bound to choose from four levels of non-incarceration sanction.
Although each model contains the same basic elements, the models differ greatly in operation. Key differences lie in the way offense levels are assigned to various crimes, how criminal history groups are classified; how and when each model allows for departure from grid ranges; and how each treats mandatory drug offense minimums.
The grid contains five criminal history groups ranging from “minor/no record” to “serious/violent,” which are defined elsewhere in the proposals, on the horizontal axis. Offense levels, also defined elsewhere, are listed in the vertical axis (left) on a scale of one to nine, with the highest (most serious) being murder. To find the applicable sentence range in a given case, judges identify the offense level and the defendant’s history, and then use the range in the corresponding grid cell.
The grid cells fall into one of three “zones”: the “incarceration zone;” the “discretionary zone;” and the “intermediate zone.” In the incarceration zone imprisonment is mandatory, given the crime and the defendant’s background. In the discretionary zone both incarceration and less severe alternatives are available, depending on the offense and the defendant’s background. In the intermediate zone, incarceration is not an option, and judges are bound to choose from four levels of non-incarceration sanction.
Although each model contains the same basic elements, the models differ greatly in operation. Key differences lie in the way offense levels are assigned to various crimes, how criminal history groups are classified; how and when each model allows for departure from grid ranges; and how each treats mandatory drug offense minimums.
Master Crime List
Use of the grid begins with the “master crime list,” which shows all crimes punished by prison or jail in Massachusetts. A version of this list is found in each proposal. Entries for the 1,800 plus crimes in the master crime list contain the crime, the “offense seriousness level,” the penalty type (misdemeanor or felony), the staircase factor (see below), and the sentence range. Each entry also has notes about applicability of the grid versus statutory sentences (sentences mandated by the statute that created the crime) and other guidance for using the grid. The master crime lists in each model are similar in that they all cover all crimes punishable by incarceration, but they differ in how specific crimes are treated. Differences are discussed below.
Criminal History Groups
Group |
# of Prior Convictions |
Offense Level |
|
A No/Minor Record |
0 |
Any |
|
1 - 5 |
1 or 2 |
|
|
0 |
Any |
|
|
1 - 3 |
1 or 2 |
|
|
B Moderate |
6/more |
1 or 2 |
|
1 or 2 |
3 or 4 |
|
|
4/more |
1 or 2 |
|
|
1 or 2 |
3 or 4 |
|
|
C Serious |
3 - 5 |
3 or 4 |
|
1 |
5 or 6 |
|
|
3 - 5 |
3 or 4 |
|
|
1 |
5 or 6 |
|
|
D Violent Repetitive |
6/more |
3, 4, 5, 6 |
|
2/more |
5 or 6 |
|
|
1 |
7 - 9 |
|
|
6 - 8 |
3 or 4 |
|
|
2 - 4 |
5 or 6 |
|
|
1 |
7 - 9 |
|
|
E Serious Violent |
2/more |
7 – 9 |
|
9/more |
3 or 4 |
|
|
5/more |
5 or 6 |
|
|
2/more |
7 - 9 |
To determine a defendant’s criminal history group, judges look at the number of prior convictions and the level of seriousness of those underlying offenses. Multiple prior convictions arising out of the same criminal conduct are counted as a single conviction.
Models Two and Three are identical in how they classify criminal history (shown together in shaded calls in chart) and are more punitive than Model One (non-shaded cells). For example, under Model One, a defendant with four convictions at offense level 1 or 2 would be in group A (minor/no record) on the sentencing grid. In Models Two and Three, the same defendant would be in group B (moderate record).
In Model One, juvenile adjudications for offenses at levels 7 through 9 are counted as convictions. Lower level juvenile adjudications are not counted as convictions, but their existence can be considered as an aggravating circumstance to increase a sentence above the grid cell range. Models Two and Three would count more juvenile adjudications as convictions – anything at levels 5 through 9. Juvenile adjudications below level 5 are not counted as convictions, but their existence can be considered as an aggravating circumstance to increase a sentence above the grid cell range.
Staircased Offenses
Staircased offenses are crimes that encompass a broad range of behavior, injury, or loss, and are therefore placed at more than one offense level in the master crime list. For example, manslaughter may be voluntary or involuntary; assault and battery may or may not have involved the use of a weapon; breaking and entering can cause various levels of loss, etc. Offense levels assigned for different behaviors and results appear in the master crime list and differ between the proposals, with the Model One being the least punitive. In all models, judges have flexibility in assigning the offense level of staircased crimes and can consider any evidence heard at the proceeding, including victim impact statements.
Offense Seriousness Level
Models Two and Three are identical in how they classify criminal history (shown together in shaded calls in chart) and are more punitive than Model One (non-shaded cells). For example, under Model One, a defendant with four convictions at offense level 1 or 2 would be in group A (minor/no record) on the sentencing grid. In Models Two and Three, the same defendant would be in group B (moderate record).
In Model One, juvenile adjudications for offenses at levels 7 through 9 are counted as convictions. Lower level juvenile adjudications are not counted as convictions, but their existence can be considered as an aggravating circumstance to increase a sentence above the grid cell range. Models Two and Three would count more juvenile adjudications as convictions – anything at levels 5 through 9. Juvenile adjudications below level 5 are not counted as convictions, but their existence can be considered as an aggravating circumstance to increase a sentence above the grid cell range.
Staircased Offenses
Staircased offenses are crimes that encompass a broad range of behavior, injury, or loss, and are therefore placed at more than one offense level in the master crime list. For example, manslaughter may be voluntary or involuntary; assault and battery may or may not have involved the use of a weapon; breaking and entering can cause various levels of loss, etc. Offense levels assigned for different behaviors and results appear in the master crime list and differ between the proposals, with the Model One being the least punitive. In all models, judges have flexibility in assigning the offense level of staircased crimes and can consider any evidence heard at the proceeding, including victim impact statements.
Offense Seriousness Level
|
Governing Offense |
Offense Level |
|
|
Model One |
Models Two/Three |
|
|
Failure to register as sex offender |
4 |
5 |
|
Involuntary manslaughter |
6 |
7 |
|
Assault & battery - no/minor injury |
3 |
4 |
|
Indecent assault & battery on child under 14 |
5 |
6 |
|
Armed carjacking |
7 |
8 |
|
Larceny of a firearm |
3 |
4 |
|
Armed robbery, subs. offense |
7 |
8 |
|
Above are but a few examples of where the models differ in offense level |
||
Offense levels reveal an important difference between the models. Offense levels dictate sentencing ranges on the vertical axis of the grids, and they are also used to classify prior convictions to assign criminal history groups on the horizontal axis. This means that the way the seriousness of a crime is assigned effects a defendant twice – first when his or her criminal background is assigned, and again at sentencing for the current offense.
Models Two and Three use the same offense assignments and both are more punitive than Model One. Significant areas of difference include manslaughter, spousal abuse, assault and battery, child molestation, failure to register as a sex offender, and larceny. This upward shift becomes especially serious for level eight crimes, which carry far longer sentences in Models Two and Three (see below).
Models Two and Three use the same offense assignments and both are more punitive than Model One. Significant areas of difference include manslaughter, spousal abuse, assault and battery, child molestation, failure to register as a sex offender, and larceny. This upward shift becomes especially serious for level eight crimes, which carry far longer sentences in Models Two and Three (see below).
Sentencing Zones
The cells in all models fall into one of three sentencing zones: in the Incarceration Zone imprisonment is mandatory, in the Discretionary Zone both incarceration and less severe alternatives are available, and in the Intermediate Zone incarceration is not an option. The Intermediate Zone includes four levels of non-incarceration punishment.
Under all models, if the cell matching the crime and background for a given case falls within the Incarceration Zone, the judge must impose a sentence that includes incarceration. Anything less would be a departure from the grid and require written justification from the judge. If the grid cell is in the Discretionary Zone, a sentence can include either incarceration or a lesser punishment. If the grid cell falls within the Intermediate Zone, incarceration sentences would be considered departures. Departures from sentence ranges are allowed, but only under certain circumstances as discussed below. The Intermediate Zone is the same in all models – it includes the same cells.
Important differences are found in the Discretionary and Incarceration Zones. Under Model One, the cell that establishes the sentence range for a crime at offense level 5 for a defendant in history group B falls in the Discretionary Zone, meaning incarceration is optional. Under Models Two and Three, the same cell falls in the Incarceration Zone, meaning that anything less than incarceration would be a departure from the grid range and would require written justification by the judge.
Under all models, if the cell matching the crime and background for a given case falls within the Incarceration Zone, the judge must impose a sentence that includes incarceration. Anything less would be a departure from the grid and require written justification from the judge. If the grid cell is in the Discretionary Zone, a sentence can include either incarceration or a lesser punishment. If the grid cell falls within the Intermediate Zone, incarceration sentences would be considered departures. Departures from sentence ranges are allowed, but only under certain circumstances as discussed below. The Intermediate Zone is the same in all models – it includes the same cells.
Important differences are found in the Discretionary and Incarceration Zones. Under Model One, the cell that establishes the sentence range for a crime at offense level 5 for a defendant in history group B falls in the Discretionary Zone, meaning incarceration is optional. Under Models Two and Three, the same cell falls in the Incarceration Zone, meaning that anything less than incarceration would be a departure from the grid range and would require written justification by the judge.
Sentencing Ranges
Under all models, judges may impose prison or jail sentences by choosing a maximum sentence from within the applicable grid cell. The minimum sentence is then automatically set at two-thirds the maximum. The minimum sentence also establishes the parole eligibility date. The only exception is where a maximum sentence is set at less than two months, then the minimum does not need to be two-thirds the maximum.
Sentence ranges in Models Two and Three are identical to each other but significantly higher than the ranges in Model One. For instance, in Models Two and Three, sentence ranges for offense level 8 (the highest next to “Life”) are 25 – 35 percent higher than in Model One. Thus, a defendant in history group C charged with a level 8 crime would face 156 – 234 months in prison, compared to only 120 – 180 months for the same crime and history group under Model One. A significant difference also occurs at level 3 for defendants in history group E. Under Models Two and Three, the sentence range would be 20 – 30 months, but is only 6 – 24 months under Model One.
For level 8 crimes the longer sentence ranges in Models Two and Three are exacerbated by the upward shift in offense levels (see above). For example, a subsequent offense of armed robbery is a level 7 crime in Model One, but is bumped up to level 8 in Models Two and Three. For a defendant in history group D, the sentence range under Models Two and Three is 194 – 292 months. Under Model One, the same crime for the same defendant would carry a sentence of 144 – 216 months.
Adding the variance in history group assignments, the difference in sentence ranges becomes even greater. A defendant with five previous convictions for level five crimes would be assigned to history group E under Models Two and Three and face 275 – 413 months, where the same defendant would face only 108 – 162 months under Model One.
Sentence ranges in Models Two and Three are identical to each other but significantly higher than the ranges in Model One. For instance, in Models Two and Three, sentence ranges for offense level 8 (the highest next to “Life”) are 25 – 35 percent higher than in Model One. Thus, a defendant in history group C charged with a level 8 crime would face 156 – 234 months in prison, compared to only 120 – 180 months for the same crime and history group under Model One. A significant difference also occurs at level 3 for defendants in history group E. Under Models Two and Three, the sentence range would be 20 – 30 months, but is only 6 – 24 months under Model One.
For level 8 crimes the longer sentence ranges in Models Two and Three are exacerbated by the upward shift in offense levels (see above). For example, a subsequent offense of armed robbery is a level 7 crime in Model One, but is bumped up to level 8 in Models Two and Three. For a defendant in history group D, the sentence range under Models Two and Three is 194 – 292 months. Under Model One, the same crime for the same defendant would carry a sentence of 144 – 216 months.
Adding the variance in history group assignments, the difference in sentence ranges becomes even greater. A defendant with five previous convictions for level five crimes would be assigned to history group E under Models Two and Three and face 275 – 413 months, where the same defendant would face only 108 – 162 months under Model One.
Concurrent and Consecutive Sentencing
Concurrent and/or consecutive sentencing applies when multiple convictions arise out of the same criminal conduct - the sentences for each conviction will either run at the same time (concurrent) or be added together (consecutive) to create a much longer sentence. Consecutive sentencing is the one area where Model One is the more punitive model, allowing far longer sentences.
In Models Two and Three, if multiple convictions involve either no victim or a single victim, the total of any consecutive sentences cannot be more than the upper limit of the grid cell for the “governing offense” (the crime at the highest level of the multiple offenses). Sentences for crimes other than the governing offense can be less than the lower limit on the grid for that crime (including non-incarceration sentences) without being a departure. A total sentence that is longer than the upper limit is considered a departure and must be justified in writing. If there were multiple victims, the total sentence can be up to two times the upper limit of the grid cell for the governing offense, and anything over that must be justified in writing.
Under Model One, consecutive sentencing is essentially the same as above, with one very significant difference: consecutive sentences can total up to two times the upper limit of the governing grid cell, even for crimes with no victims or a single victim. The existence of multiple victims is seen as an aggravating circumstance that could justify a departure above twice the upper the grid range.[ii] As apparent justification for this significant difference, the Sentencing Commission claims on its website that consecutive sentences to state prisons are not a common occurrence, and that over a twelve year period an average of two percent of annual admissions to state prisons received consecutive sentences.[iii] In 2002, 2,548 people were sentenced to state prisons.[iv] Two percent, or 50 people, likely received consecutive sentences according to the Sentencing Commission.
In Models Two and Three, if multiple convictions involve either no victim or a single victim, the total of any consecutive sentences cannot be more than the upper limit of the grid cell for the “governing offense” (the crime at the highest level of the multiple offenses). Sentences for crimes other than the governing offense can be less than the lower limit on the grid for that crime (including non-incarceration sentences) without being a departure. A total sentence that is longer than the upper limit is considered a departure and must be justified in writing. If there were multiple victims, the total sentence can be up to two times the upper limit of the grid cell for the governing offense, and anything over that must be justified in writing.
Under Model One, consecutive sentencing is essentially the same as above, with one very significant difference: consecutive sentences can total up to two times the upper limit of the governing grid cell, even for crimes with no victims or a single victim. The existence of multiple victims is seen as an aggravating circumstance that could justify a departure above twice the upper the grid range.[ii] As apparent justification for this significant difference, the Sentencing Commission claims on its website that consecutive sentences to state prisons are not a common occurrence, and that over a twelve year period an average of two percent of annual admissions to state prisons received consecutive sentences.[iii] In 2002, 2,548 people were sentenced to state prisons.[iv] Two percent, or 50 people, likely received consecutive sentences according to the Sentencing Commission.
Departure from Grid Ranges
All models allow judges to depart from grid ranges, but not always under the same circumstances, and by using different legal standards. Model Three is the most stringent, and perhaps most punitive in this regard.
In each model, judges can depart from the grid ranges and impose sentences either higher or lower than recommended if the judge 1) finds one or more mitigating or aggravating circumstance and 2) provides written justification. However, under Model Three, a judge must justify in writing why the mitigating or aggravating circumstance “constitutes a substantial and compelling reason for departure.” The other models use a lower legal standard and require only that a judge justify the reason for departure in writing – that reason does not need to be “substantial and compelling.” When looking for mitigating or aggravating circumstances, judges are guided by a list of factors. Nonconforming sentences could later be appealed by the defense if higher than listed in the grid cell, or by the prosecution if lower than listed.
All models list the same mitigating circumstances to justify downward departure. However, under Model One, the list shown below is not exclusive and is intended simply as guidance. This means that judges can find mitigating circumstances that are not listed, but should look for circumstances similar to what is on the list. In Models Two and Three, judges are limited to only the circumstances shown on the list.
The list in Model Three contains a very significant additional circumstance: a judge can find a reason for departure if the defendant provides the prosecution all the information the defendant has about the crime. Although this is not a requirement, and a judge may find some other mitigating factor from the list, if there are no other mitigating factors, defendants may feel compelled to provide this type of information. Doing so can be very dangerous to the defendant once he or she goes to prison or returns to their community, especially if the defendant has named any criminal contacts.
In each model, judges can depart from the grid ranges and impose sentences either higher or lower than recommended if the judge 1) finds one or more mitigating or aggravating circumstance and 2) provides written justification. However, under Model Three, a judge must justify in writing why the mitigating or aggravating circumstance “constitutes a substantial and compelling reason for departure.” The other models use a lower legal standard and require only that a judge justify the reason for departure in writing – that reason does not need to be “substantial and compelling.” When looking for mitigating or aggravating circumstances, judges are guided by a list of factors. Nonconforming sentences could later be appealed by the defense if higher than listed in the grid cell, or by the prosecution if lower than listed.
All models list the same mitigating circumstances to justify downward departure. However, under Model One, the list shown below is not exclusive and is intended simply as guidance. This means that judges can find mitigating circumstances that are not listed, but should look for circumstances similar to what is on the list. In Models Two and Three, judges are limited to only the circumstances shown on the list.
The list in Model Three contains a very significant additional circumstance: a judge can find a reason for departure if the defendant provides the prosecution all the information the defendant has about the crime. Although this is not a requirement, and a judge may find some other mitigating factor from the list, if there are no other mitigating factors, defendants may feel compelled to provide this type of information. Doing so can be very dangerous to the defendant once he or she goes to prison or returns to their community, especially if the defendant has named any criminal contacts.
Mitigating Circumstances:
1. Defendant was a minor participant in offense;
2. Defendant suffered from mental or physical condition that significantly reduced culpability for the offense;
3. Victim was an initiator, aggressor, or provoker of offense;
4. Sentence was jointly agreed to;
5. Defendant’s age at time of offense;
6. Defendant is currently involved in or has successfully completed substance abuse or other treatment program that began after date of offense.
The exclusive list in Model Three also contains:
7. Prior to sentencing, defendant provided the prosecution with all information and evidence the defendant has regarding the offense.
Model Three requires a special hearing to find mitigating factors. In this hearing the defendant bears the burden of proving these factors by “clear and convincing” evidence, a high legal standard. The other models all allow judges to make findings based on evidence as it comes up during the normal course of the proceedings.
Aggravating Circumstances:
1. Victim was especially vulnerable due to age or disability;
2. Victim was treated with particular cruelty;
3. Defendant used position or status to facilitate commission of offense, such as a position of trust confidence or fiduciary;
4. Defendant was a leader in the commission of an offense involving two or more criminal actors;
5. Defendant committed the offense while on probation, on parole, or during escape;
6. Defendant has committed repeated offenses against the same victim
Model Three also contains:
7. Defendant committed the offense 1) to intimidate or coerce a civilian population; 2) to influence the policy of a government by intimidation or coercion; or 3) to affect the conduct of a government by assassination or kidnapping.
Again, this list is nonexclusive in Model One, and exclusive under Models Two and Three, and under Model Three, the judge must conduct a special hearing to determine the presence of aggravating factors, which must be proven by “clear and convincing evidence.”
Another major difference in Model Three effects only defendants in history group E – the most serious. For those defendants, judges can impose a statutory maximum sentence (as discussed below), regardless of the applicable grid cell range.
Mandatory Minimums
All models keep mandatory minimum sentences in place for firearms offenses and operating under the influence (OUI). Neither OUI or firearm offenses appear on the sentencing grids, but all have been assigned offense levels and are found in the master crime list for use in determining criminal history.
There is one key exception in Model One, which allows the option of long-term residential treatment for third-time OUI convictions. This felony offense currently carries a six-month minimum, with a five-year maximum sentence. Models Two and Three do not allow a treatment option.
Each model appears to loosen the current mandatory minimum sentencing structure for drug offenses, but with different approaches and differing results. Drug offenses are treated very specifically under all models and are discussed at length in Proposals to Modify Mandatory Minimum Sentencing for Drug Offenses (July 2004) at www.cjpc.org/dp_ma_man_mins.htm.
Post-Incarceration Supervision
Only Models Two and Three contain new provisions for post-release supervision. While Model One does not contain such provisions, according to the Sentencing Commission its proposals “provide a framework for incorporating mandatory post-incarceration supervision for those denied parole.”[v] The nature and operation of that framework is not stated in the bills.
Under both Model Two and Model Three, post-release supervision would be required following all sentences of one year or more. In both models, the duration of supervision is set at 6 months following a sentence of 12 – 30 months; 12 months following a sentence of 30 – 60 months; and 24 months following a sentence of 60 months or more. During the supervised period, prisoners can be re-incarcerated if they violate the terms of their supervision.
Currently, the consequences for a parole violation are left largely to the discretion of parole officers. Minor infractions may lead to a brief detention of a day or two, where more serious infractions can be taken to the Parole Board for consideration. [vi] The Parole Board can send the defendant back to prison to serve a term up to the sentence that was remaining when they were paroled. Any time spent under supervision does not count against that sentence.[vii]
Models Two and Three appear to tighten parole officer discretion. For a first violation of supervised release, the maximum sentence would be two months or the maximum remaining period of supervision, whichever is less. For a second violation, the maximum would be six months or the maximum remaining period of supervision, whichever is less; for third violations and beyond, the maximum is twelve months or the maximum remaining period of supervision, whichever is less. If the violation of supervision also constitutes a new criminal offense, the time served for the violation of supervision would be served after the sentence for the new crime.
Retroactivity
If Model One is enacted, it will take effect as of January 1, 2004 and all provisions would apply to offenses committed following that date. In Models Two and Three, the effective date is left open, with a date to be set by the legislature when and if passed.
Statutory Minimum/Maximum Terms (other than drug, firearm, OUI offenses)
Some offenses are written into law listing not only the elements that must be proven for conviction, but also the prison term the legislature agreed was fitting for the crime. A statutory minimum/maximum sentence is term set by the statute that created the crime. In each model, if the maximum grid cell sentence is longer than the sentence listed in the statute creating the crime, the grid cell sentence applies. And in each model, if the statutory minimum is longer than the grid cell range, the judge can choose either the statutory or the grid cell minimum sentence. Only Model Three mentions statutory maximum sentences. Under this model, it would not be a departure (no written justification or aggravating circumstance required) for a judge to impose the statutory maximum sentence on any defendants in criminal history group E.
Split Sentences
All models allow “split sentences,” where a sentence to a County House of Corrections (HOC) is suspended in part. When a sentence is “split,” a specified HOC sentence is served, followed by a specified period of probation or other non-incarceration sanction. Split sentences are not available for state prison sentences.
SOCIAL AND FISCAL IMPACT
The Massachusetts Sentencing Commission, a balanced body representing judges, prosecutors, defense counsel, sheriffs, corrections, victims, and others, conducted extensive research before making its original proposal. Based on its knowledge of the complicated factors involved, the Commission estimates that its proposal (Model One) would be neutral regarding prison population[viii], while the other proposals (Models Two and Three) would increase that population. According to the Commission’s estimate, Model Two would increase prison population by 1,700 within eight years[ix] and Model Three would increase that population by a staggering 3,239 to the state’s already overcrowded HOCs and prisons within eight years.[x]
Two years ago, the Commission estimated that if H.2749 (Model Three) became law, the state would spend an additional $444 million if new facilities were needed or $135 million if existing prisons were used.[xi] The numbers were staggering then, and corrections costs have only increased in the interim. Additional prison and HOC cells would certainly be needed. In the last quarter of 2002, the DOC was operating at 133 percent of its design capacity; and the Houses of Correction at 149 percent.[xii]
Each year, corrections costs creep closer to $1 billion[xiii] – now more than higher education and second only to healthcare[xiv]. As of November 2003, the state spends about $45,000 per inmate per year. Enactment of H.2750 (Model Two) would increase that amount by $76,500,000 over an eight-year period, averaging $9,562,500 each year; H.2749 (Model Three) would add $145,755,000 within eight years, at about $18,219,375 each year.
CONCLUSION
An understanding of the mechanics of the bills and grid structure is critical in determining which proposal, if any, the Commonwealth can afford and which, if any, can truly address public safety concerns. Beyond the fiscal reality and skewed spending priorities, the voters of Massachusetts are being asked to decide how much punishment is enough to protect the safety of our communities. No controlling authority suggests that increasing sentences by 25 - 35 percent for manslaughter or domestic violence will increase public safety. Rather, CJPC believes the state should put resources to work both in seeking and then implementing other means to lessen violent criminal activity within our communities.
Finally, we must bear in mind that regardless of which sentencing proposal the legislature may pass, discretion will remain unchecked among prosecutors. Each of the models discussed here would limit judicial discretion, and each at least tries to create a more uniform approach than what has operated in the past. However, none of these proposals will unify the practices of the state’s 14 diverse District Attorneys. Prosecutors will still be free to choose which crimes are charged and in what combination, and would thus be free to seek various sentence lengths without the limitations imposed upon judges.
1. Defendant was a minor participant in offense;
2. Defendant suffered from mental or physical condition that significantly reduced culpability for the offense;
3. Victim was an initiator, aggressor, or provoker of offense;
4. Sentence was jointly agreed to;
5. Defendant’s age at time of offense;
6. Defendant is currently involved in or has successfully completed substance abuse or other treatment program that began after date of offense.
The exclusive list in Model Three also contains:
7. Prior to sentencing, defendant provided the prosecution with all information and evidence the defendant has regarding the offense.
Model Three requires a special hearing to find mitigating factors. In this hearing the defendant bears the burden of proving these factors by “clear and convincing” evidence, a high legal standard. The other models all allow judges to make findings based on evidence as it comes up during the normal course of the proceedings.
Aggravating Circumstances:
1. Victim was especially vulnerable due to age or disability;
2. Victim was treated with particular cruelty;
3. Defendant used position or status to facilitate commission of offense, such as a position of trust confidence or fiduciary;
4. Defendant was a leader in the commission of an offense involving two or more criminal actors;
5. Defendant committed the offense while on probation, on parole, or during escape;
6. Defendant has committed repeated offenses against the same victim
Model Three also contains:
7. Defendant committed the offense 1) to intimidate or coerce a civilian population; 2) to influence the policy of a government by intimidation or coercion; or 3) to affect the conduct of a government by assassination or kidnapping.
Again, this list is nonexclusive in Model One, and exclusive under Models Two and Three, and under Model Three, the judge must conduct a special hearing to determine the presence of aggravating factors, which must be proven by “clear and convincing evidence.”
Another major difference in Model Three effects only defendants in history group E – the most serious. For those defendants, judges can impose a statutory maximum sentence (as discussed below), regardless of the applicable grid cell range.
Mandatory Minimums
All models keep mandatory minimum sentences in place for firearms offenses and operating under the influence (OUI). Neither OUI or firearm offenses appear on the sentencing grids, but all have been assigned offense levels and are found in the master crime list for use in determining criminal history.
There is one key exception in Model One, which allows the option of long-term residential treatment for third-time OUI convictions. This felony offense currently carries a six-month minimum, with a five-year maximum sentence. Models Two and Three do not allow a treatment option.
Each model appears to loosen the current mandatory minimum sentencing structure for drug offenses, but with different approaches and differing results. Drug offenses are treated very specifically under all models and are discussed at length in Proposals to Modify Mandatory Minimum Sentencing for Drug Offenses (July 2004) at www.cjpc.org/dp_ma_man_mins.htm.
Post-Incarceration Supervision
Only Models Two and Three contain new provisions for post-release supervision. While Model One does not contain such provisions, according to the Sentencing Commission its proposals “provide a framework for incorporating mandatory post-incarceration supervision for those denied parole.”[v] The nature and operation of that framework is not stated in the bills.
Under both Model Two and Model Three, post-release supervision would be required following all sentences of one year or more. In both models, the duration of supervision is set at 6 months following a sentence of 12 – 30 months; 12 months following a sentence of 30 – 60 months; and 24 months following a sentence of 60 months or more. During the supervised period, prisoners can be re-incarcerated if they violate the terms of their supervision.
Currently, the consequences for a parole violation are left largely to the discretion of parole officers. Minor infractions may lead to a brief detention of a day or two, where more serious infractions can be taken to the Parole Board for consideration. [vi] The Parole Board can send the defendant back to prison to serve a term up to the sentence that was remaining when they were paroled. Any time spent under supervision does not count against that sentence.[vii]
Models Two and Three appear to tighten parole officer discretion. For a first violation of supervised release, the maximum sentence would be two months or the maximum remaining period of supervision, whichever is less. For a second violation, the maximum would be six months or the maximum remaining period of supervision, whichever is less; for third violations and beyond, the maximum is twelve months or the maximum remaining period of supervision, whichever is less. If the violation of supervision also constitutes a new criminal offense, the time served for the violation of supervision would be served after the sentence for the new crime.
Retroactivity
If Model One is enacted, it will take effect as of January 1, 2004 and all provisions would apply to offenses committed following that date. In Models Two and Three, the effective date is left open, with a date to be set by the legislature when and if passed.
Statutory Minimum/Maximum Terms (other than drug, firearm, OUI offenses)
Some offenses are written into law listing not only the elements that must be proven for conviction, but also the prison term the legislature agreed was fitting for the crime. A statutory minimum/maximum sentence is term set by the statute that created the crime. In each model, if the maximum grid cell sentence is longer than the sentence listed in the statute creating the crime, the grid cell sentence applies. And in each model, if the statutory minimum is longer than the grid cell range, the judge can choose either the statutory or the grid cell minimum sentence. Only Model Three mentions statutory maximum sentences. Under this model, it would not be a departure (no written justification or aggravating circumstance required) for a judge to impose the statutory maximum sentence on any defendants in criminal history group E.
Split Sentences
All models allow “split sentences,” where a sentence to a County House of Corrections (HOC) is suspended in part. When a sentence is “split,” a specified HOC sentence is served, followed by a specified period of probation or other non-incarceration sanction. Split sentences are not available for state prison sentences.
SOCIAL AND FISCAL IMPACT
The Massachusetts Sentencing Commission, a balanced body representing judges, prosecutors, defense counsel, sheriffs, corrections, victims, and others, conducted extensive research before making its original proposal. Based on its knowledge of the complicated factors involved, the Commission estimates that its proposal (Model One) would be neutral regarding prison population[viii], while the other proposals (Models Two and Three) would increase that population. According to the Commission’s estimate, Model Two would increase prison population by 1,700 within eight years[ix] and Model Three would increase that population by a staggering 3,239 to the state’s already overcrowded HOCs and prisons within eight years.[x]
Two years ago, the Commission estimated that if H.2749 (Model Three) became law, the state would spend an additional $444 million if new facilities were needed or $135 million if existing prisons were used.[xi] The numbers were staggering then, and corrections costs have only increased in the interim. Additional prison and HOC cells would certainly be needed. In the last quarter of 2002, the DOC was operating at 133 percent of its design capacity; and the Houses of Correction at 149 percent.[xii]
Each year, corrections costs creep closer to $1 billion[xiii] – now more than higher education and second only to healthcare[xiv]. As of November 2003, the state spends about $45,000 per inmate per year. Enactment of H.2750 (Model Two) would increase that amount by $76,500,000 over an eight-year period, averaging $9,562,500 each year; H.2749 (Model Three) would add $145,755,000 within eight years, at about $18,219,375 each year.
CONCLUSION
An understanding of the mechanics of the bills and grid structure is critical in determining which proposal, if any, the Commonwealth can afford and which, if any, can truly address public safety concerns. Beyond the fiscal reality and skewed spending priorities, the voters of Massachusetts are being asked to decide how much punishment is enough to protect the safety of our communities. No controlling authority suggests that increasing sentences by 25 - 35 percent for manslaughter or domestic violence will increase public safety. Rather, CJPC believes the state should put resources to work both in seeking and then implementing other means to lessen violent criminal activity within our communities.
Finally, we must bear in mind that regardless of which sentencing proposal the legislature may pass, discretion will remain unchecked among prosecutors. Each of the models discussed here would limit judicial discretion, and each at least tries to create a more uniform approach than what has operated in the past. However, none of these proposals will unify the practices of the state’s 14 diverse District Attorneys. Prosecutors will still be free to choose which crimes are charged and in what combination, and would thus be free to seek various sentence lengths without the limitations imposed upon judges.
[1] Section on D.A.’s proposals is based in part on information from State House News Service, found at www.02133.org
[1] According to the Sentencing Commission, “[C]onsecutive sentences to the state prison are not a common occurrence. Research on Department of Correction admissions for the past twelve years has consistently indicated that only two percent of the annual admissions received consecutive sentences. See www.mass.gov/courts/admin/sentcomm/background.html
[1] See Sentencing Commission’s website at http://www.mass.gov/courts/admin/sentcomm/background.html
[1] See 2002 Court Commitments to the Massachusetts Department of Correction, Massachusetts Department of Correction, February 2004
[1] See Sentencing Commission’s website at http://www.mass.gov/courts/admin/sentcomm/20questions.html#12
[1] See M.G.L. 127 § 149A, “Temporary custody of parolees; warrant”
[1] See M.G.L. 127 § 149, “Arrest for violation of permit; application of terms of original sentence; computation of period of confinement”
[1] Actual net decrease of 313: increase of 55 to the state prisons, and a decrease of 368 from County Houses of Correction. Massachusetts Sentencing Commission, found at www.mass.gov/courts/admin/sentcomm
[1] A 1,511-person increase in state prison population and 189 more in County Houses of Correction. Massachusetts Sentencing Commission, found at www.mass.gov/courts/admin/sentcomm
[1] A 2,505-person increase to state prison population and 734 to Houses of Correction. Massachusetts Sentencing Commission, found at www.mass.gov/courts/admin/sentcomm
[1] Based on information from State House News Service, found at www.02133.org
[1] See Department of Correction Quarterly Report on the Status of Prison Overcrowding (January, 2003).
[1] As of November 2003, the figure was $830,500 million, Massachusetts Taxpayers Foundation, Bulletin: State Spending More on Prisons than Higher Education, November 24, 2003
[1] See Massachusetts Taxpayers Foundation, Bulletin: State Spending More on Prisons than Higher Education, November 24, 2003
[1] According to the Sentencing Commission, “[C]onsecutive sentences to the state prison are not a common occurrence. Research on Department of Correction admissions for the past twelve years has consistently indicated that only two percent of the annual admissions received consecutive sentences. See www.mass.gov/courts/admin/sentcomm/background.html
[1] See Sentencing Commission’s website at http://www.mass.gov/courts/admin/sentcomm/background.html
[1] See 2002 Court Commitments to the Massachusetts Department of Correction, Massachusetts Department of Correction, February 2004
[1] See Sentencing Commission’s website at http://www.mass.gov/courts/admin/sentcomm/20questions.html#12
[1] See M.G.L. 127 § 149A, “Temporary custody of parolees; warrant”
[1] See M.G.L. 127 § 149, “Arrest for violation of permit; application of terms of original sentence; computation of period of confinement”
[1] Actual net decrease of 313: increase of 55 to the state prisons, and a decrease of 368 from County Houses of Correction. Massachusetts Sentencing Commission, found at www.mass.gov/courts/admin/sentcomm
[1] A 1,511-person increase in state prison population and 189 more in County Houses of Correction. Massachusetts Sentencing Commission, found at www.mass.gov/courts/admin/sentcomm
[1] A 2,505-person increase to state prison population and 734 to Houses of Correction. Massachusetts Sentencing Commission, found at www.mass.gov/courts/admin/sentcomm
[1] Based on information from State House News Service, found at www.02133.org
[1] See Department of Correction Quarterly Report on the Status of Prison Overcrowding (January, 2003).
[1] As of November 2003, the figure was $830,500 million, Massachusetts Taxpayers Foundation, Bulletin: State Spending More on Prisons than Higher Education, November 24, 2003
[1] See Massachusetts Taxpayers Foundation, Bulletin: State Spending More on Prisons than Higher Education, November 24, 2003