Depart From the Sentencing Guidelines Range
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, and the public.
A sentencing judge may also depart from the guidelines by imposing a sentence of incarceration where the guidelines prescribe intermediate sanctions only (green zone), or by imposing a sentence of intermediate sanctions where the guidelines prescribe incarceration only (red zone).
In imposing a sentence of incarceration that departs from the guidelines, the Not Less Than sentence shall automatically be set at two-thirds of the Not More Than sentence unless the judge determines that this would result in a parole term that is too long.
The Commission established non-exclusive aggravating and mitigating circumstances to guide the sentencing judge (see Figure 4). The presence of any such circumstance may warrant departure in the discretion of the sentencing judge. In determining mitigation or aggravation, the sentencing judge shall consider:
- any evidence received during the proceedings;
- any pre-sentence report, when the judge requests one; and
- any other information that the judge deems credible.
The sentencing judge is not required to conduct an evidentiary hearing in determining aggravating or mitigating factors.
Illustration 9: A 65 year old defendant has been convicted of Larceny ($10,000 to $50,000), a level 4 offense. The defendant has one prior conviction, incurred at age 18, for Involuntary Manslaughter (level 6), placing the defendant in criminal history category C (Serious Record). The grid cell which represents the intersection of level 4 and category C presumes incarceration and has a range of 6 to 30 months. Prior to the defendant’s conviction on the Larceny charge, full restitution to the victim was made.
Citing the age of the defendant’s prior criminal record and his act of restitution, the sentencing judge has decided to depart below the prescribed sentencing guidelines range and sentence the defendant to 60 days in the house of correction.
Figure 4. Non-Exclusive List of Mitigating and Aggravating Factors
- The defendant was a minor participant in the criminal conduct.
- The defendant was suffering from a mental or physical condition that significantly reduced his culpability for the offense.
- The victim was an initiator, aggressor, or provoker of the offense.
- The sentence was imposed in accordance with a jointly agreed recommendation.
- The age of the defendant at the time of the offense.
- The defendant verifies current involvement in, or successful completion of, a substance abuse or other treatment program that began after the date of the offense.
- The defendant’s criminal history category overstates the seriousness of the defendant’s prior record.
- The defendant’s residence in a poor or minority area with deep police penetration causes overstatement of the seriousness of the criminal record.
- The defendant is determined to be the primary caretaker of a dependent child pursuant to G.L. c. 279, § 6B.
- The victim was especially vulnerable due to age or physical or mental disability.
- The victim was treated with particular cruelty.
- The defendant used position or status to facilitate commission of the offense, such as a position of trust, confidence, or fiduciary relationship.
- The defendant was a leader in the commission of an offense involving two or more criminal actors.
- The defendant committed the offense while on probation, on parole, or during escape.
- The defendant has committed repeated offenses against the same victim.
- The defendant’s criminal history category understates the seriousness of the defendant’s prior record.
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|Date published:||April 26, 2019|