WELCOME TO CRIMINAL JUSTICE POLICY COALITION

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).

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, 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.

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.

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.

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:

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;

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.

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.

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.

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.

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.

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, the 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

Current Proposals for Sentencing Guidelines:
Background and Basics

By Patrice Brymner, Esq.

For The Criminal Justice Policy Coalition, July 2004

INTRODUCTION

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.

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.

Master Crime List

Group

Record

Any

Serious

Violent

Aggravating Circumstances:

SOCIAL AND FISCAL IMPACT

CONCLUSION

Current Proposals for Sentencing Guidelines: Background and Basics

By Patrice Brymner, Esq.

For The Criminal Justice Policy Coalition, July 2004

INTRODUCTION

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.

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.

Master Crime List

Group

Record

Any

Serious

Violent

Aggravating Circumstances:

SOCIAL AND FISCAL IMPACT

CONCLUSION

Current Proposals for Sentencing Guidelines:
Background and Basics

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.