Sentencing Guidelines: Introduction

This introduction is an overview of the Massachusetts Sentencing Commission’s revisions to the 1996 sentencing guidelines.

Introduction

This introduction is an overview of the Massachusetts Sentencing Commission’s revisions to the 1996 sentencing guidelines.

The Commission offers the Guidelines to judges, prosecutors, defense counsel, the Massachusetts Probation Service, individuals, families and communities affected by sentencing and the criminal justice system, treatment, rehabilitation and social services providers, and law enforcement as an attempt to identify the path forward in answering that most difficult of questions – what is the role of sentencing practice and decisions in the Massachusetts criminal justice system in the 21st century? The Commission’s view is that Massachusetts should look to international norms in lighting that path.

In making these Sentencing Guidelines advisory, rather than voluntary, the Commission intends to provide a starting point for consideration, and not a constraint on judicial discretion in fashioning an appropriate sentence. We acknowledge that we have made judgment calls throughout these Guidelines, both in classifying offenses and in setting forth the various sentencing ranges we believe most appropriate, from which to begin consideration of a proper sentence in the specific facts and circumstances of each case. We appreciate that social science, medical science and correctional methodologies will continue to develop, and we acknowledge that what seems most effective today may not appear to be so tomorrow or in the years hence.

Appreciating that, we disclaim any intent to provide for a sentencing appeal, other than the existing appeal procedure contained in G.L. c. 278, §§ 28A-28C, on the basis of a sentence which, though outside the Guidelines we have crafted, is within the range allowed by law.

As to criminal offenses for which the legislature has provided penalties, we contemplate that any penalty within the range provided shall be a lawful sentence. As to those crimes for which no specific penalty is provided by statute, the provisions of G.L. c. 279, § 5 shall apply, and any such sentence as conforms to the common usage and practice in the Commonwealth shall be a lawful sentence.

As to pleas tendered and sentences proposed pursuant to a plea agreement which includes both a specific sentence and a charge concession, if the judge accepts such plea agreement, nothing herein shall be construed to permit the imposition of a sentence other than as provided in Mass. R. Crim. P. 12(d)(6).

The sentencing judge may impose any lawful sentence, whether within, above or below the guideline range, taking into account all of the factors referenced in these Guidelines, the sentencing best practices of the court, and such other factors as evolving social science may suggest. To the extent that G.L. c. 211E, §3(h) imposes a duty to memorialize such reasons in writing, such a mandate ought not to apply to these Advisory Guidelines, and the Commission has promulgated these Guidelines disclaiming any intent to require sentencing judges to set forth their reasons in writing. We acknowledge that Best Practices counsel that a sentencing rationale which is clearly explained benefits the parties, the victims, the community and the public.

Despite the large amount of human capital invested in the Guidelines, they have limitations. It is the role of the Legislature and not the Commission to address structural defects in the statutes governing Massachusetts criminal justice. For example, the Commission has no authority to abolish minimum mandatory sentences or to change other statutory penalty provisions. In the Guidelines, the Commission may only recommend adjustments to practice that might bring about incremental change.

The acknowledgments express the Commission’s gratitude to numerous individuals, agencies, and entities that assisted the creation of the Guidelines by testifying, providing staff to attend and work countless meetings, or by providing technical assistance and/or materials for review.

Of special note, past and present staff of the Sentencing Commission have, for decades, provided dedicated service in the public interest with the goal of creating a more just criminal justice system.

The Mission and Purposes of the Sentencing Commission (p.27) represent the consensus of the Commission in summarizing the mission of the Sentencing Commission and the purposes of modern sentencing.

The Disparate Racial, Ethnic, and Socioeconomic Impact Caution (p.4) recommends that the reader give careful attention to increasing and widespread concern that the criminal justice system is unfair to people of color and the poor. The Juvenile and Emerging Adult Caution (p.4) advises that the Guidelines are not suitable for application to juveniles, and suggests that considerations of adolescent brain development may be important to the sentencing of young “adults”.

At the top of the Table of Contents (p.5), the Commission recommends that all judges and lawyers, and indeed, all informed citizens, be conversant with the Massachusetts Trial Court Sentencing Best Practices, with particular attention to those of the Superior Court, including its commentary, and those of the Juvenile Court, to which the Guidelines owe an intellectual debt.

Step 1/Chapter 1, the Bias Check (p.31), provides ten best practices to avoid racial, ethnic, gender identity, sexual orientation or age group bias, is based on the Massachusetts Trial Court’s efforts to address these problems.

Step 2/Chapter 2 identifies best practices to achieve strong victim communication (p.33).

The primary change to Step 3/Chapter 3, Determining Offense Seriousness Level (p.35), is the addition of Level 0 for certain offenses, for which the guidelines recommend imposition of no fine, fees, supervision, or incarceration of any kind. The Commission has also decreased the offense seriousness level for 28 offenses, and increased the level for 2 offenses.

Step 4/Chapter 4, Determining Criminal History Category (p.39), includes a Gap and Decay provision for adult offenses and a Gap and Decay provision for juvenile adjudications. The Commission determined that modern sentencing practices require use of Gap and Decay provisions to reduce the importance of criminal history in sentencing, even though doing so introduces an undesirable level of complexity.

Step 5/Chapter 5, Locating the Appropriate Grid Cell (p.45), contains the new Grid, with the new Level 0 mentioned above at Step 3/Chapter 3. Also, although for a State Prison sentence the offense seriousness level or grid cell represents the range from which the “top number” should be selected, and the lower number should be two-thirds of that, research indicates that one-third of a sentence may, in some circumstances, be too long of a period of post-release supervision.

The Commission also removed all references to Intermediate Supervision Levels I- IV (IS-I-IV) from the Guidelines, as this multilevel hierarchy of probation supervision has not gained wide usage among judges and attorneys. Further, probation supervision level is probably best set by use of a validated risk assessment instrument, with due caution for the potential racial, ethnic and socioeconomic bias inherent in such instruments, rather than based on where the individual falls on the Grid. The Commission is also aware that the Probation Service is engaged in numerous evidence and research-based initiatives.

Imposition of an incarcerated sentence, the next step, Step 6/Chapter 6 (p.49), has been changed so that the Level of Injury scale recognizes that some permanent injuries warrant a particularly severe sentence.

Step 7/Chapter 7 (p.51), Imposing a Non-Committed Sentence, has been changed to reflect modern views that fines and fees may be counter-productive, while probation and sentencing incentives are highly effective, and to recognize the role of Community Corrections Centers. It has been updated to reflect a change in the law of restitution.

Steps/Chapters 8 (p.55) and 9 (p.59), have been corrected to recognize that the Legislature has not authorized departures below any minimum mandatories.

Determining the Nature of the Sentence, Step 10/Chapter 10 (p.69), is updated to address the guideline range for consecutive sentences and to move away from imposition of fees and fines.

Step 11/Chapter 11 (p.73), Structure Incentives and Rewards into the Incarcerated Sentence and/or Probation, discusses the use of Probation and Sentencing incentives.

Step 12/Chapter 12 (p.75), Recording a Sentence, focuses on the importance of recording, in MassCourts, accurate and detailed information on Race, Ethnicity, and Gender to facilitate improvements to Massachusetts sentencing, and to recognize that judges and lawyers may wish to track their own decisions.

The final chapter, Step 13/Chapter 13 (p.77), explains that the Guidelines do not create any rights of appeal, as they are solely advisory.

Respectfully submitted,

MASSACHUSETTS SENTENCING COMMISSION

November 9, 2017 at Boston, Massachusetts

Last updated:	April 26, 2019