Introduction

In early 2018, Massachusetts released its first new sentencing guidelines in 21 years.  This was, if nothing else, a major overhaul incorporating the progress we’d like to believe we’ve made in understanding sentencing.  Even without much time to mull over the lessons of this four-year effort, some observations emerge.  Among other insights, the Massachusetts effort suggests increased distribution of and use of sentencing data, research and social science.

The Composition of the Commission

The Massachusetts Sentencing Commission is typical in its composition: voting members from the judiciary, defense and prosecution and numerous non-voting members from public safety entities, along with victim representation but no “grassroots” members such as ex-offenders, social service, substance abuse or mental health providers, or community activists.1

The Views of the Key Stakeholders and How Those Views Shaped the Result

The voting members of the commission are three judges, three prosecutors and three defense lawyers.

Based on what they perceived as the disastrous history of the Federal Sentencing Guidelines from the 1980’s to the 2000’s the judges opposed sentencing guidelines that were in any sense binding or mandatory.  As one manifestation of this opposition to “strong” guidelines, the new guidelines are purposely titled “advisory” and not even “voluntary” --- avoiding a result in which voluntary guidelines might be interpreted as “binding when used.”

Most of the prosecution members of the commission were opposed to changes to the guidelines unless the essence of the guidelines --- the sentencing ranges --- were increased.  Their position was based on familiar concerns with punishment, incapacitation and deterrence, concerns that are beyond the scope of this blog post.  Given that this was a requirement for their support of the entire guideline package they exercised less influence on the ultimate product, as the rest of the commission saw reduced sentencing ranges as important.2

Based on increasing doubts on the part of some Americans about the efficacy of legacy sentencing practices the defense bar was initially expansive in its desire for change, nearly squandering its areas of agreement with the judicial members by seeking even more far-reaching changes to the guidelines.  Ultimately, they moderated their position and joined with the judicial members in a vote to approve the new guidelines.

The Scope of the Effort and Resource Issues

Conservatively estimating, it took more than 125 meetings of the commission or a working subcommittee to create the new guidelines.3  Some entities devoted significant staff to the effort including the Massachusetts Trial Court, the Committee for Public Counsel Services, the Executive Office of Public Safety and Security, the Middlesex Sheriff’s Office, the Office of the Attorney General, and the Parole Board.  The commission is resource-poor.  The negative effect of this handicap was reduced by assistance from a variety of organizations including major technical assistance from the Robina Institute of Criminal Law and Criminal Justice at the University of Minnesota Law School (including in-depth telephone consultations and document review and analysis, presentations to the full commission, and transportation to and participation in a short seminar devoted to the calculation of criminal history category (in substance, a seminar on the consideration of criminal record in sentencing)).4 It is difficult to over-estimate the importance of Robina’s assistance.  The new guidelines also benefited from programming and other assistance from the Center for Sentencing Alternatives at the National Center for State Courts, the National Association of Sentencing Commissions, the National Judicial College, and the School of Criminology and Justice Studies at the University of Massachusetts Lowell.  The laborious process of rewriting the guidelines revealed the importance of nongovernmental help, in the form of resources and technical assistance.  This helped with process (how does a state change its sentencing guideline system?) and substance (educating us that Mass. had the heaviest “penalty” for criminal history in the nation, among guideline states).5

The Changes

The commission took a long and hard look at sentencing.  This required an understanding of social science in sentencing. For example, the commission discussed and reached conclusions on length of terms of probation and recidivism, fines, fees and restitution, day-reporting for probationers, risk-assessment instruments, and race and socioeconomic status in sentencing.  The commission built on the thoughtful and helpful Massachusetts Trial Court’s sentencing best practices, a series of best practice principles that incorporate data, research and social science.6 

Based on Robina’s Sourcebook, the commission approved decay provisions to counteract the sentencing “cliff” in the old guidelines: the old guidelines had the heaviest penalty for repeat offenders in any guideline state as measured by “Highest Main-Grid Prior Felony Weight as a Percentage of Maximum Criminal History Points.7 Stated another way, under the old guidelines criminal history or criminal record increased an individual’s sentence fastest under the old guidelines than under that of any U.S. guideline system.8

The commission reduced by one point the offense level seriousness level for multiple offenses (example: unarmed robbery), increased it for a few (example: stalking in violation of a restraining order), and created an entirely new offense level zero, carrying no sanction of any kind (albeit assigning only two offenses to it).  The commission discouraged the imposition of fines and fees, and discouraged long probations by providing advisory probation terms of 1, 2 and 3 years.  The commission recommended the use of incentives and rewards for incarcerated sentences and probation, and made numerous technical adjustments including created an additional “level of injury” offense level increase.

Conclusion

The new Massachusetts sentencing guidelines were time-consuming and expensive to produce but resource and expertise limitations were overcome with the assistance of the Robina Institute and similar NGO’s.  Perhaps this collaboration will serve as an example for future practice-academe partnerships that will improve and increase the distribution and use of sentencing data, research and social science.

• 1. In addition to the voting members, the non-voting members are the secretary of the Executive Office of Public Safety and Security, the executive director of the Parole Board, the commissioner of the Probation Service, a representative of the Victim and Witness Assistance Board, the president of the Sheriffs Association, and the commissioner of the Department of Correction.
• 2. Relatively few sentence ranges were changed but other new provisions, for example decay provisions, effectively reduced sentencing ranges.
• 3. The acknowledgements pages of the guidelines (pages 2-3) provide a sense of the scale of the effort.
• 4. In addition to resource issues, the creation of the new guidelines required those with little or no quantitative training to understand evolving sentencing data and sentencing social science.  The assistance provided by the NGO’s helped to meet these challenges.
• 5. Without Robina’s Sourcebook on Criminal History the commission would not have even known that Massachusetts had the harshest criminal history provision. https://robinainstitute.umn.edu/publications/criminal-history-enhancements-sourcebook The Sourcebook contains many useful insights for criminal justice policy-makers, insights that are of broader import than the Sourcebook’s title might suggest.  The example of the Sourcebook -- a technical, yet accessible and practitioner-friendly document -- should be emulated by the creation of a similar guide to social science in sentencing. https://robinainstitute.umn.edu/news-views/we-need-more-evidence-courtroom
• 6. https://masscj.com/2017/08/07/sentencing-best-practices-a-must-read-for-the-criminal-bar/
• 7. Sourcebook on Criminal History See figure 8.1 and the text at p. 73
• 8. For the new gap and decay provisions see Mass. Sentencing Guidelines (Nov., 2017, Step 4/Chapter 4, pp. 40-1).