Massachusetts Criminal Sentencing Reform – A Quick Look

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.

Elimination of mandatory minimums.

This section of the reform law is one that, as a Massachusetts criminal defense attorney, I thoroughly supported. I have publicly written and spoken previously about the folly of mandatory minimum sentencing. Mandatory minimum sentences for drug offenses is thoroughly ineffective — and expensive (it costs more than $55,000 a year to house an inmate Massachusetts.) This new reform eliminates mandatory minimums — except in high-volume drug trafficking cases — and provides judges wider discretion in sentencing, taking into account a defendant’s individual circumstances. This approach gets smart on crime – not solely tough, and tough only.

Waivers of Several Court Fees Applied to Criminal Defendants

Previous to this reform bill being signed, court fees that defendants were required to pay – such as victim-witness fees, probation fees, and parole fees, were not waiveable by District Court or Superior Court judges. Now, exercising newly-provided discretion, a judge can waive some or all court-imposed fees against a defendant for the first year, and can waive parole fees for a maximum of six months after parole release. Massachusetts criminal justice reform advocates argued that these fees often saddled defendants with ‘unreasonable’ legal and financial obligations. Further, the reforms also eliminates automatic suspension of defendants’ driver’s licenses, if a defendant misses court dates. I agree with the provision eliminating automatic drivers’ license suspensions for missed court dates – but I would have amended it to provide that one or two missed court dates would not rigger automatic license suspension, but at three strikes, the license would be suspended. To do otherwise, in my professional opinion, provides little incentive for defendants to show up to court when required. There needs to exist consequences to those who would thumb their noses at the court, and the reform act doesn’t provide that.

Felony Thresholds Raised

The new law raised the felony threshold for shoplifting and other larceny charges from $250.00 to $1,000.00. The Massachusetts larceny felony threshold of $250.00 hadn’t been updated in decades, causing a lot of defendants who had been convicted of petty theft to be subject to felony prison sentences. This wasn’t smart or productive – and information from states with felony thresholds higher than $250.00 supported that conclusion.

Increased Use of Diversion Programs

Too many defendants incarcerated in Massachusetts jails and prisons, are there due to problems caused by mental illness or substance abuse. This element of the criminal justice reform package requires that district attorneys create pre-arraignment diversion programs for defendants with substance abuse problems, for defendants suffering from mental illness, and for veterans. I would have amended the law applying to veterans, to require that defendants who are veterans demonstrate that their mental health or substance abuse problems were directly caused by their military service. Reason: The relatively recent Valor Act in Massachusetts, has exposed several instances where defendants who never even served overseas, but had technically served in the military and had “veteran” status, received very special and very lenient treatment, when they really didn’t deserve it.

Expungement of Prior Criminal Records

This is the process through which a defendant’s offense is deleted from their record. The new reform law makes this an option for prior offenses that are no longer a crime in Massachusetts, such as simple marijuana possession. A smart move.

If you or someone you know is currently facing criminal charges in Massachusetts, you need to know if any of these or other recent changes to Massachusetts criminal law and sentencing apply to you or the person you know who is facing the charges. If you have any questions, call us or send us a Contact Form, and we’d be happy to help.