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Sentencing Guidelines: Step 7, Chapter 7

Considerations in Imposing a Non-committed Sentence

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Considerations in Imposing a Non-committed Sentence

The sentencing court should impose the minimum number of conditions of probation intended to address the defendant’s most urgent criminogenic needs understanding that multiple conditions of probation may undermine a defendant's success on probation and ultimately increase recidivism and other costs to society. A judge has wide discretion in imposing probation conditions.=

Costs and fees for indigent persons and others who cannot reasonably afford to pay should be waived or substituted with community service to the extent permitted by law as enforcement of costs and fees can have a similar negative effect on a defendant's success on probation and may be an undesirable use of scarce Probation Service resources.

Imposing an Intermediate Sanction

Intermediate sanctions are imposed as a condition of probation.

Any special conditions of probation and/or any program components in which the offender is required to participate (e.g., drug and alcohol counseling) and the length of time that condition is imposed, if applicable

Illustration 7: A defendant is convicted of Possession Class B Substance, a level 2 offense. Based on the defendant’s record of convictions, the defendant’s criminal history is determined to be category B or Moderate Record. The grid cell which represents the intersection of level 2 and category B is in the discretionary zone including an incarceration sentence range of 0 to 6 months. If the judge chooses to sentence within the guideline range, the judge may impose a sentence of 12 months’ probation.

Restitution

If ordering restitution as a condition of probation, the judge must first decide the length of probation. Then she must then determine the amount of the restitution. This amount should be the “actual loss to the victim” limited only by the defendant’s ability to pay. In making this determination, “the judge must consider the financial resources of the defendant, including income and net assets, and the defendant's financial obligations, including the amount necessary to meet minimum basic human needs such as food, shelter, and clothing for the defendant and his or her dependents.” A restitution order that would interfere with the defendant’s ability to meet those basic needs would cause a “substantial financial hardship” and is improper. The defendant bears the burden of proving inability to pay. Where a defendant is not able to pay the full amount of restitution within the period of probation, probation may not be extended in order to give the defendant more time to pay. Commonwealth v. Henry, 475 Mass. 117 (2016).

Fees

A defendant may not be incarcerated for failure to pay a fine without determining ability to pay the fine. A defendant may not be incarcerated solely because of inability to pay a fine. Commonwealth v. Gomes, 407 Mass. 206, 212 (1990), quoting Santiago v. United States, 889 F.2d 371, 373 (1st Cir. 1989). In imposing fees the judge should consider the negative impact of imposing fees on a probationer and, where consistent with statutory authority, waive such fees where the fee or fees would constitute an undue financial hardship on the probationer or his family.

Judges should not incarcerate defendants for failure to pay court costs without a hearing, with counsel, to determine whether the failure to pay was willful. Incarceration for failure to pay fees should be considered with great caution. Due process and equal protection principles prohibit “punishing a person for his poverty.” Bearden v. Georgia, 461 U.S. 660, 671 (1983). A defendant cannot be incarcerated because he has failed to pay restitution, fees, or fines unless the court first determines at a hearing, at which the defendant has counsel, that the failure was willful. See id. at 672-673; Turner v. Rogers, 564 U.S. 431, 443 (2011) (due process violated where court jailed parent for contempt for failure to pay child support absent finding that parent had ability to pay); Commonwealth v. Gomes, 407 Mass. 206, 210 (1990) (court could not commit defendant, in this case for 9 days, where he failed to pay default fee absent a hearing to determine whether the default was willful). Probation should not be extended for the sole purpose of payment of fees.

Probation and Sentencing Incentives

The Commission recommends that judges and counsel structure sentences to employ incentives that reduce recidivism and promote positive outcomes, in both initial sentencing and during the course of a sentence of probation. Any change should be accomplished with close attention to the chapter on Victim Communication Best Practices. However, if applied in compliance with Victim Communication Best Practices, ad hoc incentives at any point, including long after initial sentencing, are recommended.

Incentives obviously can involve length of probation term reductions, but may also be used to reduce committed sentence terms (if by agreement and in compliance with the Victim Communication Best Practices, or if the Supreme Judicial Court broadens the scope of relief available from a Motion to Revise and Revoke, which the Commission recommends), to delete or modify probation conditions that are no longer appropriate, to terminate probation, and to the extent costs or fees are imposed, (which the Commission cautions against), to waive such costs or fees.

For ease of reference a chart of years reduced by 3 months per year follows:

  • One Year, 9 Months
  • Two Years, 18 Months
  • Three Years, 27 Months

Community Corrections Center Participation

The Sentencing Commission recommends consideration of the view that excessive probation supervision can increase an individual’s risk to re-offend.

However, there are certain high risk probationers not otherwise engaged in productive constructive activity such as full-time school or work. These probationers may be required to participate in activities relevant to their personal circumstances such as seeking a G.E.D., or equivalent, employment, or relapse prevention programming. This fairly extensive programming can be required until a probationers goes back to school or work or otherwise connects with a substantial positive activity that is analogous to full-time work or school.

Any use of a validated risk assessment instrument for the setting of probation conditions such as Community Corrections should be employed with caution given the potential for disparate racial, ethnic and socioeconomic impact on defendants.

Community Re-entry Programs

The reader’s attention is directed to successful evidence- and research-based community re-entry programs.

Additional Resources

Contact

Address

John Adams Courthouse
One Pemberton Square - G300
Boston, MA 02108
Date published: April 26, 2019
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