Other Matters: Massachusetts Sentencing Commission Guidelines Are Used in an Advisory Capacity in the Court System.

Audit found guidelines are in use in the Commonwealth's court system.

Overview

As noted in the “Audit Objectives, Scope, and Methodology” section of this report, one of the concerns raised by the Massachusetts District Attorney Association is that the most recent Massachusetts Sentencing Commission (MSC) guidelines, although not enacted into law by the state Legislature, are used in the court system. As previously noted, our ability to fully examine and conclude on this was limited by the Executive Office of the Trial Court not providing us with the information we requested. However, we noted the following:

• We attended two sessions of the Appellate Division of the Superior Court and observed 11 appeals. We observed that defense attorneys and assistant district attorneys referred to the current MSC sentencing guidelines.
• We obtained and reviewed 38 Sentencing Guideline Forms that were completed by the Franklin Superior Court and submitted to MSC. We found that all 38 of the forms were completed by the probation officers and 34 were signed by the judges. Four of the forms had no signatures.
• On June 6, 2018, the Flaschner Judicial Institute² held a training program on revised sentencing guidelines for judges, cosponsored by MSC. The executive director of the institute gave us an agenda for the training program. We reviewed this information and found that judges attended this training and were informed that the revised sentencing guidelines were available for use.
• We obtained and reviewed training session materials for probation officers, provided by the Massachusetts Probation Services, on how to use the sentencing guidelines. We found that the training was performed periodically for probation officers who were being trained on how to complete the Sentencing Guideline Form.
• During our interviews with the current and former MSC chairs, both chairs confirmed that the revised guidelines were used in the court system, but only in an advisory capacity.

Further, in summer 2019, MSC conducted a survey entitled “A Survey of Sentencing Guideline Use.” Invitations to participate in this survey were sent to all judges in the Boston Municipal, District, and Superior Court Departments. Of the 259 judges who received the survey, 149 responded. The results of the survey indicated that 79 (53%) of the 149 responding judges reported using the revised sentencing guidelines in some capacity during the sentencing process. The majority of these respondents—44 (56%) of the 79—indicated that they consulted the guidelines while determining their sentences. Other judges stated that they did not use the guidelines because they were “not required” or the judges “disagree[d] with sentencing guidelines.”

2.    The Flaschner Judicial Institute is a nonprofit organization established in 1978 to provide continuing education and professional development programs for Massachusetts judges.

Date published:	November 7, 2019