Guidelines Legislation Background
Massachusetts Sentencing Commission
Sentencing Commission was established in the spring of 1994 by the
truth-in-sentencing law - Chapter 432 of the Acts of 1993 (later
codified as G.L. c. 211E). The commission is comprised of fifteen
members with diverse criminal justice perspectives and philosophies,
including three judges, three prosecutors, and three defense counsel,
along with other representatives of the criminal justice community
and victims. The commission submitted its Report to the General
Court on April 11, 1996, pursuant to c. 211E. This
report was unanimously adopted by commission members as the fairest
and most effective reform of criminal sentencing. The sentencing
guidelines legislation reflects the recommendations of this report.
sentencing guidelines legislation will promote public safety by
providing just punishment for those who commit crime. Violent offenders
will face longer periods of incarceration. Less serious and first-time
offenders will be held accountable by an array of intermediate sanctions.
The guidelines will promote fairness and reduce disparity while
preserving that degree of judicial discretion necessary to fashion
the sentence appropriate for the individual offender and the specific
offense. A right of appeal is established for both defense and prosecution
when sentences fall outside of guideline ranges.
of the impetus for creating a sentencing commission and developing
sentencing guidelines legislation in Massachusetts was generated
by the Task Force on Justice, a joint enterprise of the Boston Bar
Association and the Crime and Justice Foundation, which found in
its 1991 report that:
(S)entencing in Massachusetts is haphazard, confusing, and archaic,
with a hodgepodge of options. More importantly, Massachusetts
judges are given no guidance on what to consider in sentencing,
except for those crimes carrying mandatory penalties. As a result,
there is substantial disproportionality in sentences given for
various offenses and a lack of uniformity among sentences imposed
for the same offense.
Task Force also noted certain other areas of concern, such as the
tenuous relationship between the sentence imposed and the time actually
served; the ad hoc approach to sentencing reform in recent
years; and, the constraints on uniform and proportional sentencing
posed by the existence of mandatory sentencing.
The purpose of the sentencing guidelines legislation is
to promote truth in sentencing by providing uniform sentencing policies
and systematic sentencing guidelines, and by integrating intermediate
sanctions within the sentencing guidelines. The legislation was
formulated according to certain guiding principles which called
for an approach to guidelines development which was prescriptive,
comprehensive, neutral regarding race and gender, empirical, and
which took into account prison capacity and the integration of intermediate
The experience of sentencing commissions in other jurisdictions
indicated that the more open the process, the more successful the
guidelines development enterprise. Therefore, in developing sentencing
policies and guidelines, the commission established a process that
encouraged input from all interested parties. Accordingly, the commission
conducted a series of twenty-seven focus groups and held five public
hearings across the Commonwealth. The focus groups and public hearings
provided many valuable and diverse insights for consideration by
the commission for this legislation.
The truth in sentencing legislation mandated that a comprehensive
research effort be undertaken in conjunction with the development
of the sentencing guidelines legislation so that the commission's
decisions and policies would be informed by empirical data. The
commission's research included a study of existing sentencing practices,
which documented disparity in sentencing in Massachusetts; a study
of time currently being served; and, a study of the impact of the
proposed sentencing guidelines on correctional populations. Pilot
projects to test the sentencing guidelines in the Superior Court
and in the District Court were also an important part of the guidelines
The Legislature's Joint Committee on Criminal Justice held
an all-day hearing in Gardner Auditorium on the commission's Report
to the General Court in July 1996. At the hearing
there was widespread support for sentencing reform and for the sentencing
guidelines approach proposed by the commission. This hearing was
important in the guidelines development process because it demonstrated
that there was a solid basis of support for going forward with the
effort to transform the recommendations of the commission into the
statutory language of the sentencing guidelines legislation that
is presently before the Joint Committee on Criminal Justice.
sentencing guidelines legislation was originally filed in December
1996 as Senate 135 and House 2634. The Legislature's Joint Committee
on Criminal Justice held a second all-day hearing on the proposed
sentencing guidelines in June 1997. At this hearing there was widespread
support for the concept of sentencing guidelines, especially from
members of the judiciary. Some concern was noted by both prosecutors
and defense counsel over proposed target sentence lengths, mandatory
sentencing reform, and other proposed sentencing policies.
sentencing guidelines legislation was again filed for consideration
in the 1999/2000 session as Senate 198 and House 1521. A legislative
hearing before the Joint Committee on Criminal Justice was held
in May 1999.
The sentencing guidelines legislation was filed for the 2001/2002
Legislative session as Senate 1004 and House 3497 and a hearing
before the Joint Committee on Criminal Justice is scheduled for
The sentencing guidelines are based on a grid-type model, with offenses
classified on the vertical axis according to seriousness and criminal
history classified on the horizontal axis according to severity.
Approximately 1800 offenses are ranked according to nine levels
of seriousness. These offenses are compiled in the Master Crime
List which is incorporated into the legislation.
history is classified according to five categories based on the
nature and seriousness of the criminal record: Serious Violent
Record; Violent or Repetitive Record; Serious Record; Moderate Record;
and, No/Minor Record.
sentencing guidelines range is established in each cell in the sentencing
grid where the offense seriousness level and the criminal history
category intersect. To sentence within the guideline range, a judge
would select the maximum sentence from the sentencing range in the
applicable cell on the gird. The minimum sentence, which represents
the parole eligibility date, will automatically be two-thirds of
the maximum sentence
a judge would impose a sentence within the guideline range, but,
where there are aggravating or mitigating circumstances, the judge
may depart from the range with the requirement that the judge set
forth in writing the reasons for departure. Any departure must be
based on a finding that one or more mitigating or aggravating circumstances
exist. The legislation contains a non-exclusive list of aggravating
and mitigating factors to guide the sentencing judge. The legislation
also establishes a right of appeal for both defense and prosecution
when sentences fall outside of the guideline range.
In order to facilitate the integration of intermediate
sanctions into the sentencing guidelines, the legislation incorporates
three "zones" into the sentencing guidelines grid - an incarceration
zone, where the sentencing ranges would call for a period of incarceration;
an intermediate sanctions zone, where the sentencing ranges would
call for an intermediate sanction; and, a discretionary zone, where
the sentencing ranges would include both a period of incarceration
and an intermediate sanction option to be selected at the discretion
of the judge. The legislation also calls for a continuum of four
levels of intermediate sanctions, based on the restrictions on personal
liberty associated with the sanction, as follows:
Level IV - 24 Hour Restriction
The offender is subject to 24-hour restriction/accountability
of his whereabouts - e.g., Halfway House, Inpatient Alcohol/Drug Facility.
III - Daily Accountability
The offender is subject to daily accountability of his
whereabouts - e.g., Electronic Monitoring, Intensive Probation Supervision.
Level II - Standard Supervision
The offender is subject to weekly accountability of
his whereabouts - i.e., standard probation supervision.
I - Financial Accountability
This represents the level of restriction/accountability that
is typically associated with administrative probation - i.e., monitoring
the timely payment of restitution, fines, victim/witness fees, and
imposing an intermediate sanction sentence, the sentencing judge shall
specify the particular level of intermediate sanction selected from
those available within the appropriate grid cell. The Office of Community
Corrections, established under G.L. c. 211F, has developed a
state-wide network of intermediate sanction programs available for
judges to use when sentencing.
or Consecutive Sentencing
the multiple convictions did not arise from the same criminal conduct
(i.e., they represent separate criminal incidents), there is no limit
on consecutive sentences, and there is no limit on consecutive sentences
to Houses of Correction.
When a defendant is convicted on multiple charges, the
court may impose either concurrent or consecutive sentences. If
the multiple convictions arose from the same criminal conduct, the
judge may impose consecutive sentences up to twice the upper limit
of the guideline range of the governing offense (i.e., the most
serious offense of conviction). If the consecutive sentences exceed
twice that upper limit, it is considered a departure, and the judge
would be required to provide written reasons for imposing consecutive
sentences which exceed twice that upper limit. The existence of
multiple victims is recognized as an appropriate aggravating circumstance
which would support such a departure.
It should be noted that consecutive 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.
for Offenses with Mandatory Minimum Sentences
and OUI Offenses. The sentencing guidelines legislation does
not permit departures below the mandatory minimum terms for firearms
offenses or for OUI offenses, with the exception that long term residential
alcohol treatment programs, approved by the Office of Community Corrections,
would be available as intermediate sanctions for OUI offenders up
to the third OUI conviction.
While G.L. c. 211E authorized the Commission to recommend
sentencing guidelines below mandatory minimum sentences to incarceration,
the approach finally recommended by the Commission was modest. The
Commission established three general categories of offenses with
mandatory minimum sentences that are addressed in the legislation
- firearms offenses, OUI offenses, and drug offenses.
Drug Offenses. The legislation provides for a limited exception
with respect to mandatory sentencing for drug offenses. These offenses
are integrated into the guidelines grid. However, the mandatory penalties
for these drug crimes are not abolished under the guidelines. A judge
is only permitted to impose a sentence below the mandatory minimum
term when the judge provides written reasons for doing so even though
the judge may be imposing a sentence that is within the guideline
range. The standard for going below the mandatory minimum term is
more stringent than the ordinary standard for departure from a guideline
range, and the legislation would not permit a sentence below the mandatory
minimum term for any defendant who has a prior conviction for a serious
drug offense. Finally, the judge always has the option to impose the
mandatory minimum term and such sentence shall not be considered a
departure even if the mandatory minimum term exceeds the guideline
The legislation recognizes the importance of restitution
to the victim as a means of restoring the victim and of holding
the offender accountable. Restitution to the victim is established
as a priority at the time of sentencing, regardless of whether the
defendant is incarcerated.
Chapter 432 eliminated the split sentence to the state prison,
effective July 1, 1994. Once the sentencing guidelines have been adopted,
the split sentence to Houses of Correction will also be eliminated.
The commission found widespread and consistent support for the split
sentence at focus group meetings and public hearings. It is the type
of sentence that is particularly appropriate for the substance abusing
offender, and, in this regard, the commission received a strong recommendation
from the Supreme Judicial Court Substance Abuse Task Force to retain
the split sentence as it is presently being used. Therefore, the legislation
would amend the statute to permit the continued availability of the
split sentence to Houses of Correction.
sentencing guidelines legislation includes a comprehensive set of
sentencing policies and guidelines to promote greater fairness,
uniformity, and truth in sentencing. The sentencing guidelines were
formulated under a prescriptive approach, aimed at enhancing the
penalties for violent offenders and developing a system of intermediate
sanctions for non-violent offenders. Empirical research on current
sentencing patterns, time presently being served, and prison population
projections informed the guidelines development process. The different
perspectives of commission members and the insights gained from
focus groups and public hearings all contributed to the formulation
of a balanced and integrated set of sentencing policies and guidelines.
process of developing these sentencing policies and guidelines was
characterized by vigorous debate. Commission members advocated articulately
and strenuously for the points of view of their constituencies.
As expected, the commission did not reach unanimity on each point
of discussion. However, it is significant that the commission members
voted unanimously to adopt the Report to the General Court,
which has formed the basis for the sentencing guidelines legislation.
Sentencing Commission Overview
Commission Membership and Staff
Commission Legislation - Questions and Answers