Boston Criminal Attorney Blog

Here’s an interesting development occurring at the intersection of criminal law and the healthcare field: The state’s largest nursing association is organizing support and lobbying for a bill giving nurses special protections from assault and battery by patients under their care.

The legislation would put defendants found guilty of assault and battery against registered nurses while they are providing health care, in jail for a minimum of 90 days and up to a maximum of 2-1/2 years. Currently, Massachusetts law allows sentences up to 2 1/2 years, but no minimum sentence for simple assault and battery convictions (against a nurse or anyone). In support of this legislation, the Massachusetts Nurses Association cited a survey it conducted five years ago, which concluded that one in every two nurses was assaulted at work during a two-year period in Massachusetts. The association also claims that nurses are assaulted as frequently as police officers and prison guards.

The bill, sponsored by state Sen. Michael O. Moore, D-Millbury, was one of more than 200 proposed new laws covering a wide variety of criminal offenses, all of which were heard in a single day yesterday by the Legislature’s Judiciary Committee. Two Massachusetts District Attorneys, Worcester County District Attorney Joseph D. Early Jr., and Essex County District Attorney Jonathan Blodgett, are both backing the bill for minimum mandatory sentences for assaults on nurses.

According to Massachusetts Nursing Association spokesman David Schildmeier, assaults on nurses are frequently not prosecuted, and in cases where they are prosecuted, judges have complete discretion over whether a jail sentence is imposed. The association finds judicial discretion a ‘problem.’ I don’t. I’ve blogged previously and spoken publicly more than once about the destructive effects of mandatory minimum sentencing – whether for assault and battery, rape and sexual offenses, drug offenses or operating under the influence of alcohol. To impose a mandatory minimum jail term of 90 days for anyone found guilty of assaulting a nurse in the course of his or her care is extremely unwise from several standpoints: Judicial administration, corrections, and simple justice. Nurses perform a valuable service throughout society, but not more so than dozens of other hard-working professionals who have to interact with the public every day. Further, I think it safe to say that the vast majority of patients who might assault a nurse would likely be ill, elderly, of unstable or unsound mind, or under the effects of medication. To mandatorily sentence such people to 90 days in jail, with absolutely no judicial discretion whatsoever, is plainly foolish, not to mention inequitable.

The nurses association is also working to change hospital policies to reduce tolerance of nurse abuse and attacks on nurses, and to end past practices that discouraged nurses from seeking criminal complaints in cases where they have been assaulted by patients, visitors and families of patients. I support that effort entirely.

According to the association, while some medical institutions have viewed violence against nurses in the past as being “part of the job,” the association has been educating nurses that they should prosecute assaults. “It is not part of the job to get punched,” he said. As a Boston criminal defense attorney, I thoroughly agree with this opinion, and I would encourage any nurse who feels that he or she has been assaulted to bring charges against the person who committed such an assault. But to enact special penalties for assaulting registered nurses, then tie judges’ hands and mandatorily sentence anyone who has even slightly assaulted a nurse to a minimum of 90 days in jail, is unwise, counterproductive judicial and corrections policy, and inequitable.

Nurses deserve respect and equal access to the criminal courts. They have that now.

Ten years ago this summer, a horrifying story came to pass on Cape Cod. It represented the penultimate fear of anyone whose car has ever broken down, and is seeking help. A young woman named Melissa Gosule was driving on Cape Cod in July 1999 near the Cape Cod Canal when her car broke down. She accepted a ride from a man named Michael Gentile - who apparently seemed unthreatening to her - and was never again seen alive. Eight days later, her body was found in a shallow grave. Gentile is serving a life sentence for the crime. As horrific as that story is, it gets worse: Gentile had been convicted of at least 20 previous violent crimes, and was walking free at the time he abducted and killed Ms. Gosule.

A legislative bill now dubbed “Melissa’s Bill", after Ms. Gosule, has now been introduced into the Massachusetts Legislature that that would create a "three strikes" form of punishment for habitual violent offenders. A similar bill was filed in previous legislative sessions, but lawmakers deemed the penalties too severe. Prosecutors supporting the present bill, and state Representative Brad Hill of Ipswich, who sponsored the bill, said the new version has been revised to make exceptions for nonviolent offenders, thus making passage more likely. Middlesex County District Attorney Gerard T. Leone Jr. has taken the prosecutorial lead in promoting this bill, commenting that "This new version of 'Melissa's Bill,' while addressing previous concerns, is consistent with its mission to assure greater transparency, accountability, and truth in sentencing for dangerous repeat offenders." We have also closed additional legal loopholes that would have ensured that Melissa's murderer, whose 27 convictions resulted in a mere two years served in prison, would not have been free to abduct and kill Melissa."
Leone said the new bill requires that defendants who are convicted of a third felony in three separate offenses be punished with the maximum sentence allowed for the third crime, as opposed to a mandatory life sentence, as the previous bill called for. Another major problem with the prior iteration, was that misdemeanor offenses were counted in the “three strikes” language. In my professional opinion as a Massachusetts criminal defense attorney, that provision was overly-broad and too severe. The new bill applies only to those who have committed serious felonies; proponents also argue that this new iteration is fairer because it would not depend on judges' previous sentences, but rather on the specific crimes committed.

The bill would also put an end to what critics of the current sentencing system refer to as “package deals.” These current sentencing options permit defendants who commit new crimes to combine the charges and receive concurrent sentences for each crime. Under the new bill, sentences imposed on the new crimes would run consecutively. It would also prohibit probation for defendants who commit a new felony while free on a suspended sentence, and mandate that the defendant serve the suspended sentence after a finding of probable cause for the new crime.

The bill has been referred to the Legislature's Judiciary Committee. Heidi Gosule, Melissa's sister, who now serves as a prosecutor in Leone's office, said she hopes the changes will be enough for the bill to pass finally. In a written statement, Ms. Gosule said, "We are fighting for this bill in memory of my sister and other victims like her". "We are truly hopeful that this bill will pass in what is the 10th year since Melissa's death and assure that victims will be better protected for years to come." With the right legal and constitutional safeguards, I don’t think anyone can argue against that. I’m a Massachusetts criminal defense attorney, and I know I won’t.

My previous post on this topic talked about what mandatory minimum criminal sentencing is all about. Now I’ll speak to why it’s a bad idea. The principal reason advanced for enacting these kinds of law is deterrence: Make sure that no lenient (read: liberal) judge is allowed to reduce a sentence at all for certain kinds of crimes: The reasoning: “Tie the judges’ hands, and force them to impose the harshest of sentences – that will deter people from committing these crimes.” The problem is, study after study has shown that enactment of mandatory minimum sentences for most crimes does not deter the incidence of those crimes. It just fills up our prisons and jails. Further, a great deal of these types of sentencing laws apply to certain types of drug crimes – and strict, mandatory minimum sentences for these offenses are rarely justified. All they do is commit a defendant to a lengthy prison sentence, at taxpayers’ expense; they do nothing to rehabilitate the offender or offer him/her a “better way” to make money; and what comes out of prison years later is a hardened, uneducated, violent person – who is almost certain to offend again, and repeat the cycle all over again.

As I mentioned in my previous post on this subject, attorney David W. White Jr., President of the Massachusetts Bar Association, made this argument very well in a recent piece in The Boston Globe, "Fixing Our Criminal Sentencing System", on this subject. He pointed out that many such strict minimum sentences apply to any illegal drug transactions occurring within 1000 feet of a school. The obvious (and worthwhile) goal of this legislation was to deter selling or dealing drugs to schoolchildren. The only problem? It is common for many schools to be located in many urban areas in Massachusetts. Many offenders arrested for buying or selling illegal drugs – even small amounts of marijuana – are subjected to such mandatory sentencing regardless of whether any schoolchildren were involved – because in urban areas, a school is often less than 1000 feet away from most heavily trafficked urban locations. The result? An offender could buy or sell a small amount of an illegal drug – for personal, recreational use only – and face a mandatory two years in jail, no questions asked. That sound heard when the jail door closes, is one more life down the drain, one more violent criminal put in training behind bars, and one more bill we as taxpayers have to pay. Smart judicial policy? Hardly. A better way out for such offenses is mandatory drug recovery programs, strict probationary requirements, and vocational training to actively employ offenders in the workplace.

Sometimes, “lock ‘em up and throw away the key” is smart policy. In this case, it isn’t.

Recently, attorney David W. White Jr., President of the Massachusetts Bar Association, published a piece in The Boston Globe, "Fixing Our Criminal Sentencing System", on the subject of mandatory criminal sentencing.

For those of you who may not know, “mandatory minimum sentencing” laws are the Massachusetts state legislature’s (and many other state legislatures’) answer to the public’s increasing intolerance and fear about certain types of crimes, mostly drug-related, as well as their frustration over what they perceive as “soft on crime” judges. Hence, the legislature stepped up to enact “mandatory minimum sentencing” for defendants who are found guilty of certain types of crimes. As said, most of these crimes are drug-related. Most all crimes carry sentencing penalties that range from minimum to the maximum allowed under law, and upon a finding of guilt, a judge normally has the discretion to impose any sentence within that range. Mandatory minimum sentencing takes that discretion out of a judge’s hands: Upon a finding of guilt for certain types of crimes, the judge is forced to impose a strict, mandatory jail sentence No consideration of extenuating circumstances, no consideration of mitigating factors, no consideration of character witnesses, no consideration of leniency. End of story.

“Lock ‘em up and throw away the key.” Sound like a good ending? You should think twice before thinking that this is either a good idea, or that it will reduce certain types of crime. The truth it, it does neither. What it does mostly, is fill up our state prisons to the bursting point, often with defendants that don’t pose a great threat to the general public – and that cost the taxpayers an enormous sum of money to process, house and feed.

I’ll address why this type of criminal sentencing can be a bad idea, in my next entry.