by Hon. John T. Lu and Kevin Riley
“Empower the Sentencing Commission to revisit the state’s approach to sentencing and sanctions”, this was one of several key criminal justice policy recommendations proposed by the Massachusetts Criminal Justice Coalition in 2013. At the urging of criminal justice leaders, the Massachusetts Sentencing Commission, originally codified in Massachusetts G.L. c.211E, was re-established in 2014 and met for the first time that October to consider the performance of our sentencing system. Nearly nineteen years after the publication of the first “Report to the General Court” in 1996, once again the members and staff of the Massachusetts Sentencing Commission eagerly embrace the opportunity to reposition the Commonwealth at the forefront of criminal justice policy development.
The current sentencing guidelines are used by many judges on a voluntary basis. The guidelines are in the form of a grid where the seriousness of the offense and the criminal history of the defendant are systematically considered in making a sentencing recommendation.
Comprised of three judges, three prosecutors, and three defense attorneys, along with the Secretary of the Executive Office of Public Safety and Security, a representative of the Massachusetts Sheriffs’ Association, the Commissioner of the Department of Correction, a designee of the Parole Board, the Commissioner of Probation, and a designee of the Victim Witness Assistance Board, the Commission represents a diverse cross-section of subject-matter experts, including:
• Hon. John T. Lu (Chair): Associate Justice, Superior Court;
• Daniel Bennett, Esq: Secretary, Executive Office of Public Safety and Security;
• Michael J. Callahan, Esq: Executive Director, Massachusetts Parole Board;
• Edward J. Dolan: Commissioner, Massachusetts Probation Service;
• Mary Alice Doyle, Esq: Deputy First Assistant DA, Essex County DAs Office;
• Peter L. Ettenberg, Esq: Defense Attorney (MACDL);
• Hon. Kenneth J. Fiandaca: Associate Justice, Boston Municipal Court;
• Pamela Friedman, MSW: Chief, Victim Witness Unit Norfolk County DAs Office;
• Brian S. Glenny, Esq: First Assistant DA, Cape & Islands DAs Office;
• Hon. Mary Elizabeth Heffernan: First Justice, Newton District Court;
• Carol Higgins O’Brien: Commissioner, Massachusetts Department of Correction;
• Dean A. Mazzone, Esq: Senior Trial Counsel, Criminal Bureau Attorney General’s
• John S. Redden, Esq: Attorney-in-Charge, Brockton Superior Court Trial Unit (CPCS);
• Martin Rosenthal, Esq: Defense Attorney (MACDL); and,
• Steven W. Tompkins: Sheriff, Suffolk County.
Commission members, appointed in accordance with Massachusetts G.L. c. 211E, serve on a voluntary basis and are generally appointed for six-year terms; no voting member may serve more than two full terms. The enabling legislation envisions the Massachusetts Sentencing Commission as an ongoing entity that supports, monitors and assesses the implementation of sentencing initiatives throughout the Commonwealth. Under the statute the Commission and its staff seek to:
• Analyze the impact of existing and proposed sentencing policies and practices on criminal justice resources using computer simulation models;
• Provide training and support to court practitioners on the use of sentencing guidelines;
• Recommend the appropriate placement of newly-created crimes on the sentencing guidelines grid;
• Conduct research on sentencing and other criminal justice issues to help guide the formulation of policies and legislation;
• Collaborate with criminal justice agencies on system-oriented research initiatives; and,
• Serve as a clearinghouse for information on sentencing.
Since the Commission’s initial meeting in October 2014, members and staff have convened on a monthly basis to discuss a wide scope of proposed sentencing changes, initiatives, and policies. The Commission’s commitment to data-driven decision making and evidence-based practices is furthered by the appointment of University of Massachusetts Lowell Professor James Byrne, an authority on evidence-based sentencing practices, to the position of outside technical advisor and the Commission’s access to the expertise of staff and faculty at the Robina Institute of Criminal Law and Criminal Justice at the University of Minnesota Law School. On November 18, 2015 the Commission held a public hearing to solicit public commentary on sentencing matters. Further, in addition to strongly considering valuable public input on sentencing, the Commission has called upon the expertise of the following nationally recognized leaders to help guide the work of the Commission:
• Michael Coelho: Deputy Commissioner of Programs at the Massachusetts Probation Service, Coelho addressed the Commission on the Pew Results First Initiative, a cost- benefit approach to guiding policy and budgetary decisions throughout the Massachusetts criminal justice system.
• Professor Mark Kleiman: Then a Professor of Public Policy at the Luskin School of Public Affairs, UCLA at Berkeley, Professor Kleiman engaged Commission members in discussion of the HOPE model of probation supervision and best practices in the sentencing of drug offenders.
• Professor Kevin Reitz: Professor of Law at the University of Minnesota Law School, Professor Reitz provided a national perspective on the work of other sentencing commissions and how Massachusetts can incorporate nationally recognized best practices into our sentencing guidelines model.
• Professor Richard Frase: Co-Director of the Robina Institute of Criminal Law and Criminal Justice, Professor Frase provided valuable insight on developing a safety-valve provision offering qualified offenders relief from mandatory minimum sentences.
• Commissioner Edward Davis (ret.): Former Boston Police Commissioner Davis presented Commission members with a law enforcement perspective on sentencing and best practices for promoting successful post-incarceration reintegration for offenders.
• District Attorney Daniel Conley: Suffolk County District Attorney Conley provided Commission members with a prosecutorial perspective on sentencing and crime control.
• Judge Nancy Gertner (ret.): A former Federal Judge, Gertner presented Commission members with her experience and perspectives in working with the federal sentencing guidelines.
In addition to participating in full Commission meetings, Commission members also serve on sub- committees. Detailed below is a brief synopsis of each sub-committee and the responsibilities and work they are engaged in:
• Community-Based Sanctions Sub-Committee: Focusing on innovative solutions to incentivize compliance with community-based sanctions, restructuring of supervision fees, community relations through outreach initiatives, and considering the implications of “zero-based” conditions of probation where every condition must be justified.
• Guidelines and Legislation Sub-Committee: Focusing on the development of a comprehensive sentencing guidelines model, one supported by data and grounded in research. Sub-committee members are actively debating and considering improvements designed to strengthen statutory criminal justice provisions.
• Outreach and Training Sub-Committee: Responsible for the coordination of public hearings as well as making recommendations to improve the web presence of the Commission. Further, sub-committee members are also responsible for the development of training resources and for providing technical support to guidelines users at the local court level.
• Research and Data Sub-Committee: Responsible for the review and approval of all research related requests, including the development of information sharing protocols. Sub-committee members also serve as a review board to monitor any mutually agreeable external research projects the Commission engages in. Further, sub-committee members may analyze sentencing data to monitor developing trends and rates of compliance and departure from recommended sentencing ranges.
The Massachusetts criminal justice system is engaged in many initiatives that share the mission of, and parallel the work of the Commission. The Council of State Government’s Justice Reinvestment Initiative and the best practices in sentencing committees within the Trial Court are two such initiatives.
The Council of State Government’s Justice Reinvestment Initiative in Massachusetts is a significant cost-savings. Experts from the Justice Reinvestment Initiative will present these findings to a bipartisan task force that will debate and present these recommendations to the legislature. The cost-savings generated through these recommendations can then be reinvested in front-end programs designed to reduce recidivism. Currently, 24 states and 17 local jurisdictions throughout the United States participate in the Justice Reinvestment Initiative.
Led by Chief Justice Ralph Gants, working groups on best practices in sentencing are active in each court department with significant criminal jurisdiction. Committee members, which include judges, probation officers, prosecutors, defense attorneys and police chiefs, are tasked with the development and implementation of sentencing best practices specific to each of these court departments. It is the intent of these committees to develop a set of sentencing best practices to serve as a judicial decision making support tool, guiding judges in crafting individualized sentences that are consistent with best practices whenever possible.
Moving forward, the Sentencing Commission is developing data-driven policy recommendations and remains committed to collaborating with nationally recognized experts from the academic and legal communities. Given the diverse backgrounds of Commission members, significant differences of opinion on how to best improve sentencing in Massachusetts are unavoidable, and despite this, many Commission members are encouraged by a shared vision. This common vision is one that does not compromise public safety and scarce correctional resources, and seeks to reduce prison populations when consistent with public safety, to reduce recidivism, to enhance the utilization of intermediate sanctions, and to support an economically sustainable correctional model. The Commission extends its sincere gratitude to the many local champions and nationally recognized leaders who have whole-heartedly endorsed and supported our mission as we work to bring evidence-based practices to sentencing policy in Massachusetts.
John Lu is a Superior Court justice and chair of the Massachusetts Sentencing Commission as well as an Adjunct Professor of Law at Boston University. He is the lead Superior Court judge for a Bureau of Justice Assistance-funded Demonstration Field Experiment of HOPE probation principles, a randomized control trial of supervision of high-risk probationers. Lu’s professional interests include criminal justice and sentencing innovation, leadership and management, and teaching.
Kevin Riley is a research analyst at the Massachusetts Sentencing Commission. A graduate of the University of Massachusetts Lowell, Riley’s professional interests include statistical analysis, geographic information systems (GIS) and economically efficient alternatives to justice system
Voice of the Judiciary
Sentencing reform is now at the center of debate in Massachusetts. A reconstituted Massachusetts Sentencing Commission is reviewing state sentencing guidelines. Chief Justice Gants of the Supreme Judicial Court has called for the elimination of mandatory minimum sentences for drug crimes. The debate is a welcome development. I come to this judgment from my experience not only as a trial judge of thirty years in the Commonwealth and in the Federal Courts, but also as the Chair of the United States Sentencing Commission. I write on my judicial perspective on mandatory minimum sentences with the hope that the federal experience with mandatory minimums and guidelines will be helpful in the state’s reform discussion.
In 2011, the United States Sentencing Commission, an independent, bipartisan agency, unanimously reported to Congress that current mandatory minimum penalties, particularly for drug offenses, contribute to growing prison populations and can lead to unfair results. In the past several years, the Commission has prioritized reducing incarceration costs and prison overcapacity. Last year, the Commission reduced drug penalties and made that change retroactive, making up to 40,000 incarcerated offenders eligible for early release by an average 25 months.
The Commission’s 2011 report to Congress on mandatory minimum penalties determined that some mandatory minimum provisions apply too broadly, are set too high, or both. The Commission found that their use, particularly in the drug context, contributed significantly to over-incarceration. The Federal Bureau of Prisons is more than 38 percent over-capacity. Federal prisons and detention pending trial cost well over $6 billion a year and account for about a quarter of the overall Department of Justice budget. This means fewer resources for law enforcement and other key public safety programs. The number of offenders in federal prison convicted of an offense carrying a mandatory minimum penalty increased from 40,104 offenders in 1995 to 111,545 in 2010, an increase of 178.1 percent. Drug offenders currently make up 51 percent of those in federal prison and comprise the majority of those offenders subject to mandatory minimum penalties.
The Commission found that certain severe mandatory minimum sentences lead to disparate charging decisions by prosecutors and to vastly different sentences for similarly situated offenders. These differences were particularly acute with respect to filing notices under section 851 of title 21 of the United States Code for drug offenders with prior felony drug convictions, which generally doubles the applicable mandatory minimum sentence. In some districts, filing was routine. In others, it was more selective, and in one district it was almost never filed at all.
We further found that, in the drug context, mandatory minimum penalties often resulted in severe sentences for lower-level offenders, rather than just for the high-level drug offenders who it appears Congress intended to target. For example, a courier may be carrying a large quantity of drugs, but may be a lower-level member of a drug organization. The Commission found that 23 percent of all drug offenders were couriers, and nearly half of these were charged with offenses carrying mandatory minimum sentences. The category of drug offenders most often subject to mandatory minimum penalties at the time of sentencing were street-level dealers, who were many steps below high-level suppliers and leaders of drug organizations.
In addition, Black offenders were much less likely to get “safety valve” relief from mandatory minimum penalties than other offenders and therefore were more likely to remain subject to those mandatory minimum penalties. Only about 14.4 percent of Black offenders qualified for safety valve relief compared to 46.3 percent of Hispanic offenders and 39.5 percent of White offenders. This difference is largely attributable to the criminal history of Black drug offenders. About three quarters of Black drug offenders convicted of a drug offense carrying a mandatory minimum penalty had a criminal history score of more than one point under the sentencing guidelines, which disqualified them from application of the safety valve.
Significantly, the Commission has found that, in at least some circumstances, modestly reducing drug sentences did not make it more likely that people would commit new crimes or less likely that they would plead guilty or cooperate with authorities. Crack cocaine offenders we studied, who were released in 2008 after having their sentences reduced by more than two years because of an amendment to the sentencing guidelines, had a 30.4 percent recidivism rate. The group of similarly situated offenders who had served their full sentences had a 32.6 percent recidivism rate.
Moreover, the overall rates at which these defendants pleaded guilty remained relatively stable after crack cocaine penalties were reduced. In the fiscal year before the 2008 amendment took effect, the plea rate was 93.1 percent, and in the two consecutive fiscal years following effect, the plea rate was 95.2 percent and 94.0 percent. Similarly, in the fiscal year before the amendment took effect, the overall rates at which crack cocaine defendants received substantial assistance departures for their cooperation with law enforcement was 27.8 percent, and in the two consecutive fiscal years afterward, the substantial assistance departure rate was 25.3 and 25.6. Thus, while some prosecutors have worried that reducing drug penalties would affect the incentive to cooperate, this reduction did not appear to have that result.
While there was a spectrum of views among the Commissioners as to whether mandatory minimums are a good idea, the Commission has unanimously recommended statutory changes to reduce and limit mandatory minimum penalties. These recommendations include the following:
- Congress should reduce the length of current mandatory minimum penalties for drug trafficking.
- Congress should consider expanding the so-called “safety valve,” allowing sentences below mandatory minimum penalties for non-violent, low-level drug offenders, to offenders with slightly greater criminal histories than the currently narrow requirements permit.
Congress is now considering bipartisan legislation consistent with these recommendations. Many states, like California, Texas, South Carolina and others, have recently reconsidered their sentencing policies and been able to reduce prison populations and save money without increasing crime.
It is important to note that while the Commission has recommended reducing the mandatory minimum penalties, it continues to believe that guidelines can reduce unwarranted disparity among judges and increase fairness in sentencing. The federal courts have advisory guidelines that provide a strong anchoring effect in most federal cases. In a 2013 survey of federal district judges, we learned that more than three-quarters of judges prefer advisory guidelines to any other sentencing system — including one with no guidelines.
As a veteran of the Superior Court, I think that the federal experience is very relevant to the current Massachusetts debate on issues of over-incarceration and sentencing proportionality. I believe that the work of the United States Sentencing Commission can help inform that discussion and the urgent need for reform. Fairness and sound public policy are powerful arguments, indeed.
United States District Judge Patti B. Saris is the Chair of the United States Sentencing Commission and the Chief Judge of the United States District Court for the District of Massachusetts. Judge Saris was an Associate Justice of the Massachusetts Superior Court before her appointment to the United States District Court.