Boston Criminal Attorney Blog

The U.S. Supreme Court’s ruling earlier this week, that juvenile sentences of life without parole in non-homicide cases violates the Eight Amendment’s ban on cruel and unusual punishment, brought humanity and civility back into many courthouses across the United States. No one, this writer included, doubts that juveniles can commit the most horrific of crimes. Nor do I doubt that, if convicted, those juveniles deserve swift and certain punishment – often including lengthy incarcerations. But for too many juvenile defendants in too many courtrooms in this country, “justice” has resulted in sentences of life without possibility of parole (“LWOP,” in criminal law circles,) and in many cases these sentences have produced a severity that is devoid of mercy, and devoid of hope.

Even more disturbing, is that in the vast majority of these non-murder cases, the sentences of life without parole that have been given, have been the product of mandatory sentencing, the dangers of which I have written about previously. Mandatory sentencing has been nothing less than judicial handcuffing, a knee-jerk reaction to crime often producing the worst of legal injustices while almost never achieving the claimed result of lowering crime rates. The Supreme Court’s ruling this past Monday in Graham v. Florida is just such an example of a horrid injustice produced by mandatory sentencing laws. The petitioner in this case, Terrance Jamar Graham was sentenced to a mandatory life term at age 17, without possibility of parole, after he violated his probation sentence for an earlier home invasion robbery; the year before that he was involved in an attempted robbery of a Florida restaurant. Obviously, this kid was trouble. Obviously, he needed to be taught a lesson, and obviously, that lesson needed to involve considerable jail time.

But to sentence a 17 year-old relatively small-time offender to life in prison, without the possibility of parole, for a probation violation? That was facially cruel and unusual, and it was a victory for justice and fairness that the Supreme Court heard this case and ruled as it did. Many such sentences have resulted from crimes that involved far less serious offenses, such as drug offenses, sexual assault and even assault and battery. Approximately129 juveniles in prisons across the U.S. are serving such sentences.

While some of these cases involve less serious crimes, many of them involve very serious offenses – and this ruling does not limit the ability of judges to punish such defendants severely, with lengthy prison sentences, when the facts merit such. All it says it that the government cannot preclude the possibility that these convicts, sentenced as juveniles, can at some point in their adult future make at least an argument for their release back into society. Notably, this ruling does not guarantee the release of such convicts. Many of them will spend 10, 20, or more years in prison before they even get the chance to make a case for their release. And when such convicts do offer their arguments for parole, many will be denied. But it affords convicts who have been sentenced as juveniles, at the very least, the opportunity to make their case for release at some point in the future. To quote Justice Anthony Kennedy, who wrote the majority opinion for the court, "The Eighth Amendment does not foreclose the possibility that persons convicted of non-homicide crimes committed before adulthood will remain behind bars for life." It does forbid States from making the judgment at the outset that those offenders never will be fit to reenter society."

Importantly, the court reaffirmed the fundamental basis for differentiating between juveniles and adults in criminal sentencing. Citing earlier decisions it issued on this point, the court said that, as compared to adults, juveniles have a “‘lack of maturity and an underdeveloped sense of responsibility’”; they “are more vulnerable or susceptible to negative influences and outside pressures, including peer pressure”; and their characters are not as well formed. These realities mean that “[i]t is difficult even for expert psychologists to differentiate between the juvenile offender whose crime reflects unfortunate yet transient immaturity, and the rare juvenile offender whose crime reflects irreparable corruption.” As a result of these factors “Juvenile offenders cannot with reliability be classified among the worst offenders. A juvenile is not absolved of responsibility for his actions, but his transgression “is not as morally reprehensible as that of an adult.”

The majority's reasoning reflects widely-recognized differences between an adult and a juvenile personality. Someone under the age of 18 has not yet developed fully into a mature human being – emotionally, psychologically or even physically. Scientific and medical data have shown that generally speaking, juveniles are less able to assess risk, control impulses and comprehend consequences, than are adults. While without doubt juveniles can commit crimes equally horrific to the crimes adults commit, their capacity for growth and change is greater than in adults. To foreclose the possibility of penitence, growth and reversal in character, is not only cruel and unusual, such sentencing ignores and denies the human capacity for positive change - the capacity for correction that our corrections system is supposedly based upon.

The Graham ruling will be widely felt in criminal courts across the U.S. The ruling will invalidate sentencing laws affecting life without parole for juveniles in at least 37 states, including New Hampshire and Rhode Island here in New England, as well as the District of Columbia and the federal government. However, the court’s decision does not affect seven states, including Massachusetts, Connecticut and Vermont, which allow life without parole for juveniles in cases of homicide. Also, there are six states that do not use this penalty for any juvenile offenders at all, and this ruling obviously does not affect those states.

Again, the court's decision in Graham does not prevent or limit a judge's ability to deliver lengthy and harsh prison sentences to juveniles when warranted. It only recognizes that juvenile sentencing should take into account the possibility of the positive change that can accompany human maturation beyond juvenile development.

Importantly, this ruling does not apply to juveniles that have been sentenced to life without parole for murder convictions. It applies only to non-murder convictions. Hence, convicts such as John Odgren, recently convicted of Murder One here in Massachusetts last month and sentenced to life without possibility of parole, will be unaffected. I think the Odgren case presents the penultimate case for the court to examine the constitutionality of juvenile sentences of life without parole in murder cases, and it remains possible that in the future the court may address such a case, but for now, those convictions remain unaffected.

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.