DAs to Judges: Stop Using Unauthorized Sentences
By Mary Markos
A group of district attorneys are demanding that state judges stop using an unauthorized list of sentencing guidelines that hasn’t been approved by the Legislature.
“This is not the time for the Massachusetts Judiciary to be ignoring the separation of powers and usurping the powers reserved to the Legislature, but that is what they are doing,” Norfolk District Attorney Michael Morrissey said. “As a former legislator, I can attest that this is not a gray area. It is a bright line.”
Sentencing guidelines are required by statute to be enacted by the Legislature before implementation, but the contested list has not been approved by lawmakers since it was created by the Sentencing Commission in 1996 and updated in 2017.
Massachusetts Trial Court Chief Justice Paula Carey wrote back yesterday defending the guidelines as “advisory,” available for judges to “consult at their discretion.”
“This has been a practice for more than 20 years, and judges understand that the guidelines are intended to guide, but not to compel, a judge in determining an appropriate sentence,” Carey said. She argued that the Sentencing Commission is not under her control, suggesting that the DAs reach out to them with their concerns.
There is no mandate for the Sentencing Commission to create advisory guidelines that “skirt the check-and-balance of legislative adoption,” Morrissey countered. The law is “very clear,” he added, that the guidelines “shall take effect only if enacted into law.”
“The Legislature did not empower the commission to skirt the law and bypass the General Court,” Morrissey said.
Morrissey was joined by Essex DA Jonathan Blodgett, Plymouth DA Timothy Cruz and Cape and Islands DA Michael O’Keefe.
“I have been troubled by this process for some time,” O’Keefe said. “I hope the judiciary will consider the points raised in this letter and cease using these until the new commission votes and submits their product to the Legislature as the statute requires, and the Legislature acts.”
Some of the sentences contained in the proposed guidelines violate existing law, according to Blodgett, who pointed to a first offense charge of aggravated rape of a child, which calls for a 7 and a half year prison sentence under the guidelines but a 10 year minimum under state law.
“We are prosecutors tasked with the job of protecting the people of our counties, and we will use every tool at our disposal to see that justice is served for victims of crime,” Cruz said. “Now more than ever, there need to be clear sentencing guidelines that have been appropriately acted upon by the Legislature so that judges sentence by distinct instructions and not by their interpretation of an unapproved advisory report.”