1. Why does Massachusetts need sentencing guidelines?

2. How can the sentencing guidelines help to manage and control criminal justice resources?

3. How many sentencing guidelines bills are before the Legislature?

4. What is the projected impact of the different sentencing guidelines bills?

5. Describe the process for formulating sentencing guidelines.

6. What is the "sentencing guidelines grid"?

7. How were the sentencing guideline ranges determined?

8. Will the serious offender be treated more harshly under guidelines?

9. What happens if a judge sentences outside the guidelines?

10. Do the proposed guidelines adequately address the issue of domestic violence?

11. Why has the Commission placed an emphasis on intermediate sanctions?

12. How do the proposed sentencing guidelines facilitate community reintegration?

13. Was the Commission authorized to recommend sentences that go below current mandatory minimum terms?

14. What is the Commission's proposal with respect to mandatory sentences?

15. What does current research on mandatory minimum drug sentences tell us?

16. What was the role of empirical research in the development of the sentencing guidelines?

17. Does the need for empirical research continue today?

18. Can the sentencing guidelines be implemented in the courts without disrupting the flow of cases?

19. How many other jurisdictions have sentencing commissions and what has been their experience with sentencing guidelines?

20. Now that the Commission has submitted its proposal, isn't its work done? Why do we continue to need a Sentencing Commission?

1. Why does Massachusetts need sentencing guidelines?

  • The problems with sentencing in MA were articulated in a Boston Bar Association / Crime and Justice Foundation report in 1991, which concluded that:
        • sentencing in MA is "haphazard, confusing and archaic;"
        • there is substantial disproportionality in sentences given for various offenses and a lack of uniformity among sentences imposed for the same offense.
  • The sentencing guidelines will:
        • promote greater uniformity and fairness in sentencing;
        • reduce unwarranted disparity;
        • encourage the use of intermediate sanctions in appropriate cases;
        • moderate mandatory drug sentencing;
        • hold judges more accountable in sentencing; and,
        • in these times of severe fiscal constraints, serve as a management tool to more effectively control and allocate criminal justice resources.
  • The sentencing guidelines legislation presents a compelling opportunity to effect far-reaching, substantive criminal justice reform, and, at the same time establish a systematic framework for managing and containing criminal justice costs.

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2. How can the sentencing guidelines help to manage and control criminal justice resources?

  • Under existing sentencing, there is a lack of consistency or predictability in sentencing which makes it difficult to systematically assess the impact of current sentencing statutes on correctional populations.
  • In contrast, the sentencing guidelines would promote greater uniformity and predictability in sentencing by establishing reasonable parameters for structuring judicial discretion.
  • The enhanced predictability would allow for more reliable impact analyses on correctional populations and thereby serve as an important management tool for controlling such resources.
  • The guidelines would provide a neutral framework for:
        • assessing the impact of sentencing policy on correctional populations;
        • formulating informed and rational sentencing policies; and,
        • managing correctional and other criminal justice resources.

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3. How many sentencing guidelines bills are before the Legislature?

  • There are four sentencing guidelines bills presently before the Legislature:
    • S. 219, filed by Senator Marian Walsh, and H. 3302, filed by Representative David P. Linsky, are identical and mirror the recommendations of the Sentencing Commission;
    • H. 2749, filed by Representative A. Stephen Tobin, replicates the bill that was engrossed in the House in the fall of 2001; and,
    • H. 2750, filed by Representative A. Stephen Tobin, replicates the bill that was reported out by the Joint Committee on Criminal Justice earlier in 2001.

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4. What is the projected impact of the different sentencing guidelines bills?

  • The commission recently updated its analysis of the impact of the guidelines legislation on the correctional population, using more recent data and adjusting certain assumptions to reflect current criminal justice patterns.
  • The eight-year projections indicated that under commission's guidelines proposal there would be more violent offenders incarcerated and fewer non-violent and substance-abusing offenders.
    Overall, the correctional population is projected to be about the same under the commission's guidelines proposal as it is projected to be under existing sentencing.
  • A comparison of the projected impact of the three different versions of the guidelines legislation is presented below:
Eight-Year Projection of the Impact of the Three Versions of Sentencing Guidelines Legislation State and County Correctional Populations
 S. 219/H. 3302H. 2749 vs. ExistingH. 2750 vs. Existing
Department of Correction5525051511
Houses of Correction-368734189
Total-31332391700

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5. Describe the process for formulating sentencing guidelines?

  • Composition of the commission reflected diverse criminal justice perspectives and philosophies.
  • Vigorous debate on many issues.
  • Commission members unanimously adopted the Report to the General Court, and S. 219 and H. 3302 reflect the recommendations of this report.
  • Empirical research informed guidelines development process.
  • Research on existing sentencing practices, time currently being served, and the projected impact of the proposed sentencing guidelines on correctional populations informed the process.
  • The process to formulate the guidelines was designed to be open in order to elicit input from all interested parties.
  • 27 focus groups (particular outreach to victim groups).
  • 5 public hearings (89 individuals testified).

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 6. What is the "sentencing guidelines grid"?

  • A main emphasis in developing guidelines was on simplicity.
  • Guidelines are easy to understand and straightforward to apply.
  • Lessons learned from Federal guidelines - too complex, too rigid, too "mathematical."
  • Grid format integrates intermediate sanctions, providing guidance to judges on appropriate use of such sanctions.
  • Vertical Axis     
    • Prescriptive approach used in classifying offenses according to seriousness.
    • Values articulated and offenses classified accordingly.
    • Comprehensive approach used - 1900 crimes ranked according to nine levels of offense seriousness on the grid and compiled into master list of ranked crimes.
    • Master Crime List is incorporated into the sentencing guidelines legislation.
  • Horizontal Axis
    • Descriptive approach used in classifying criminal history.
    • Criminal history categories describe nature of criminal record - e.g., serious violent record - rather than numerical score.

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 7. How were the sentencing guideline ranges determined?

  • The guideline ranges were developed using a prescriptive approach whereby certain values were articulated, such as:
          • to promote public safety by providing just punishment for those who commit crime;
          • to ensure that violent offenders face more certain and longer periods of incarceration;
          • to integrate intermediate sanctions in the guidelines as a means of holding less serious offenders accountable in the community.
  • Empirical data on current sentencing and the projected impact of the proposed guidelines on correctional populations informed the deliberations.

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8. Will the serious offender be treated more harshly under guidelines?

  • Sentencing under the guidelines for the more serious offenses will be more stringent than under past sentencing practices.
  • The guideline ranges proposed are considerably above the typical sentences that have been imposed in the past for the more serious offenses.
          • Research indicates that past sentences for serious violent offenders fell below the proposed guideline ranges in about half of the cases.

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9. What happens if a judge sentences outside the guidelines?

  • If a judge imposes a sentence below or above the guideline range, the judge must justify in writing the reasons for departing from the range.
  • The commission's proposal contains a nonexclusive list of six mitigating and six aggravating factors to guide the judge concerning departures.
  • The prosecutor may appeal a sentence below the guideline range; the defendant may appeal a sentence above the guideline range.

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 10. Do the proposed guidelines adequately address the issue of domestic violence?

  • Since the commission submitted its original proposal, the Legislature created a series of new crimes which specifically take into account domestic violence - aggravated assault, aggravated assault and battery, and aggravated assault and battery with a dangerous weapon.
  • These new crimes will be ranked at seriousness levels commensurate with the degree of injury to victim, thereby addressing domestic violence in an appropriate manner.

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 11. Why has the Commission placed an emphasis on intermediate sanctions?

  • The Legislature specifically directed the commission to integrate intermediate sanctions into the sentencing guidelines system.•
    • This meant that the guidelines should not only indicate the appropriate sentencing range for those incarcerated, but should also provide guidance on the types of offenders who would be appropriate candidates for intermediate sanctions.
  • The Legislature also created the Office of Community Corrections (OCC) and provided the funds for OCC to establish a state-wide network of 22 community correction offenders who would be appropriate candidates for intermediate sanctions.
  • The annual cost of each level III and IV slot is approximately $4,000 as opposed to $36,000 for incarceration, and each slot can accommodate four offenders a year in in the course of a year.
  • The sentencing guidelines are important in this context because they would provide a mechanism for identifying appropriate incarceration-bound offenders and steering them to community correctional centers where they would be held accountable without compromising public safety and with substantial cost savings to the commonwealth.

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12. How do the proposed sentencing guidelines facilitate prisoner re-entry?

  • The sentencing guidelines would structure prisoner re-entry initiatives and facilitate the use of intermediate sanctions by the Parole Board.
  • For those sentenced under the guidelines, the minimum sentence would always be two-thirds of the maximum sentence.
  • Judges would not be able to impose a sentence where the difference between the minimum and maximum sentences is one day (e.g., 3 years to 3 years and a day) - a common sentencing practice today which precludes parole consideration.
  • All inmates would be eligible for parole and the availability of intermediate sanctions for these offenders would greatly facilitate the re-entry process by providing enhanced supervision and needed services.
  • The guidelines also provide a framework for incorporating mandatory post-incarceration supervision for those denied parole.

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13. Was the Commission authorized to recommend sentences that go below current mandatory minimum terms?

  • When the Legislature codified the legislation that created the Sentencing Commission into the General Laws as Chapter 211E, it amended the original legislation in order to authorize the commission to establish guideline ranges that may go below the mandatory minimum sentence.
  • Sentencing guidelines set limits and provide guidance for sentencing below mandatory minimum terms.

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14. What is the Commission's proposal with respect to mandatory sentences?

  • The Commission concluded that for certain mandatory offenses - e.g., OUI, firearms offenses - the mandatory minimum sentence was fair and proportionate.
    • The Commission did not reach the same conclusion upon its examination of mandatory drug offenses. By integrating drug crimes into the sentencing guidelines grid, the Commission sought to produce a comprehensive sentencing system that encourages more consistent proportional sentencing.
    • Support for integrating mandatory drug crimes into the grid was expressed at focus groups, public hearings and testimony at legislative hearings.
    • Current research on mandatory minimum drug sentencing supports alternatives to mandatory sentences.
    • Departure below mandatory minimum sentence requires written reasons.
    • A judge is not required to depart from the mandatory minimum term, and imposition of the mandatory minimum term would not be considered a departure even if the mandatory minimum term exceeds the guideline range.
    • The illustrative grid pdf format of Drug Offenders Grid
shows how the mandatory drug offenses are integrated into the sentencing guidelines.

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15. What does current research on mandatory minimum drug sentencing tell us?

  • According to the Commission's FY 2000 data on sentencing practices, some mandatory drug sentences are very long in relation to sentences for other serious offenders, and all mandatory drug sentences disproportionately affect minorities (80% of those convicted of mandatory drug crimes are minorities compared to 34% of those convicted of all other crimes).
  • Most of those convicted of mandatory drug crimes are convicted of non-trafficking offenses. In FY 2000, 29% of defendants convicted of a mandatory drug crime were convicted of a trafficking offense. The remainder were convicted of lower-level drug crimes punishable by a one or two year mandatory sentence.
  • Recent national study by RAND also concluded that mandatory minimum sentences are "not justifiable" on basis of cost-effectiveness at reducing drug consumption or drug-related crime. In addition:
    • conventional drug enforcement -- more drug dealer arrests and standard-length incarceration -- is a substantially better investment than mandatory sentencing; and,
    • treatment of drug offenders is the most effective approach of all.

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16. What was the role of empirical research in the development of the sentencing guidelines?

  • Empirical research informed decision making at various stages of the guideline development process.
    • Current sentencing practices - for each cell on the grid, the anticipated number of defendants convicted, the incarceration rate, the average sentence imposed and the percentage of sentences that fall within and beyond the guideline range were provided.
    • Impact of guidelines on correctional populations - simulation models were developed with NCCD to assess the impact of sentencing guidelines on correctional populations.
      • Based on FY2000 data, the sentencing guidelines are projected to be "population neutral."

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 17. Does the need for empirical research continue today?

  • There exists an ongoing need for empirical research during the development of sentencing guidelines:
  • Through its projection methodology, the commission can project the correctional impact of proposed modifications to its sentencing guidelines, as well as the correctional impact of other sentencing guidelines proposals;
  • There will also be a need for empirical research following enactment of sentencing guidelines:
    • Chapter 211E of the general laws requires the commission to assess the impact of sentencing guidelines on criminal justice resources, and monitor the application of sentencing guidelines so to assure that the guidelines are neutral as to the race, sex, national origin, creed, religion and socio-economic status of offenders.
    • The research capability of the commission is frequently called upon for data by legislators and members of the criminal justice community.
  • Chapter 177 of the Acts of 2001 directed the Massachusetts Sentencing Commission to "perform a comprehensive study on the recidivism rate of offenders."
  • The commission has also initiated or been asked to collaborate on a number of other research projects in the area criminal justice practice and policy.

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18. Can the sentencing guidelines be implemented in the courts without disrupting the flow of cases?

  • The Commission conducted pilot projects in the Superior Courts and the District Courts to test the feasibility of using the guidelines in sentencing.
  • In the Superior Courts, reference to the guidelines was smoothly integrated into the sentencing process.
  • In the District Courts, where the volume is much higher and the pace is more accelerated (96% of convictions occur in District Courts, compared to 4% in Superior Courts), the guidelines were also readily incorporated into the sentencing process.
  • The District Court pilot projects were conducted in the Lynn District Court and the Worcester District Court (two of the busiest District Courts in the Commonwealth) and in the Haverhill District Court.

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19. How many other jurisdictions have sentencing commissions and what has been their experience with sentencing guidelines?

  • The National Association of State Sentencing Commissions lists 20 state sentencing commissions on its web site.
  • A study by Abt Associates indicates that mandatory sentencing guidelines have proved effective in making sentences more fair, more uniform, and more neutral with respect to such considerations as race.
  • The Vera Institute reports that states with sentencing guidelines have a more disciplined and rational policy-making process that helps lawmakers balance demands for public safety, fairness, and fiscal accountability.

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20. Now that the Commission has submitted its proposal isn't its work done? Why do we continue to need a sentencing commission?

  • G.L. c. 211E envisions the Sentencing Commission as an ongoing entity that would support, monitor, and assess the implementation of the guidelines legislation and report annually to the Legislature with recommendations for adjustments and improvements to the sentencing guidelines. The commission and its staff would continue to:
    • analyze the impact of existing and proposed sentencing policies and practices on criminal justice resources using computer simulation models;
    • provide training and support to court practitioners on the use of the sentencing guidelines;
    • recommend the appropriate placement of newly-created crimes on the sentencing guidelines grid;
    • conduct research on sentencing and other criminal justice issues to help inform the formulation of policies and legislation;
    • collaborate with criminal justice agencies on system-oriented research initiatives; and,
    • serve as a clearinghouse for information on sentencing.

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