Articles Posted in Mandatory Sentencing

Governor Charlie Baker signed legislation reforming a considerable amount of important laws in the Massachusetts criminal justice system this past April. So, how have those changes been going, on a day-to-day basis in the courts? At only 90 days out from the bill’s signing, it’s a little hard to say, but here’s a quick review of how the principal changes will affect day-to-day prosecutions in Massachusetts courts.

Bail reform

This is one of the more controversial aspects of the bill Gov. Baker signed. Historically, when a prosecutor requested bail, a judge was required to take into consideration over a dozen separate factors in setting bail, partially including:

  • The Nature and Circumstances of the Offense: How serious is it?
  • Family Ties. Does the defendant have any?
  • Employment.
  • Length Of Residence. This is important, as a defendant who’s been living in Massachusetts for many years is much more likely to not ‘jump bail,’ than is someone who has no residence here..
  • Prior Court Defaults. Has the defendant ‘skipped bail’ previously?

One thing that a judge was never required to consider, though, was a defendant’s ability to pay. Now, the new law requires that judges take into consideration the defendant’s ability to pay a given amount of bail – and furthermore, the judge is now required to justify in writing instances where bail is set high enough to prevent a defendant’s release. That provision in the bail reform provision of the criminal justice reform bill, was triggered principally by an August 2017 ruling by the Supreme Judicial Court that ordered lower judges to consider a defendant’s ability to pay a given amount of bail. That decision angered more conservative members of the Legislature and the public, and I can understand why. Continue reading

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.

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.

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.

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.

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