Massachusetts State House.
Boston Bar Journal

Commonwealth v. Rossetti: Searching for Clarity and Justice in Massachusetts’ Sentencing Statutes

April 26, 2023
| Spring 2023 Vol. 67 #2

By Jared B. Cohen

As mandatory minimums and strict sentencing laws have increasingly come under public scrutiny—and compelling criticism—Massachusetts court decisions in this area have highlighted challenging constraints posed by statutes that are difficult to interpret logically and consistently. The cases also have generated important debates about the role of the courts vis-à-vis the Legislature, when laws are ambiguous or inconsistent in application, especially in matters of substantial social and moral concern. These dynamics were on full display in the SJC’s recent decision in Commonwealth v. Rossetti, 489 Mass. 589 (2022).

Rossetti concerned G.L. c. 6, § 178H (a)(2), which provides, in relevant part, that a “second and subsequent conviction [for failure to register as a sex offender] shall be punished by imprisonment in the [S]tate prison for not less than five years.” Id. After the defendant in Rossetti had pled guilty, the judge imposed a one-to-two-year sentence in state prison, which was stayed pending questions reported to the Appeals Court to determine whether such a sentence was lawful under the statute. Rossetti, 489 Mass. at 590-91. The SJC granted direct appellate review and found the sentence unlawful. Id. at 591, 605. Specifically, it held that “the five-year minimum term in § 178H (a)(2) . . . requires a judge who chooses to sentence a defendant to incarceration in State prison to impose an indeterminate sentence, the minimum term of which may not be less than five years.” Id. at 605. The Court also, however, interpreted § 178H (a)(2) to permit a sentence of probation in lieu of incarceration. Id. at 599-604.

Significantly, the case provided a forum for the Justices to present competing visions of statutory interpretation and the Court’s sentencing jurisprudence, as set forth in the majority, concurring, and dissenting opinions.

Majority Opinion

Justice Cypher’s majority opinion explained that answering the reported questions required clarification of the Court’s sentencing jurisprudence, and in particular, how to decipher whether a statute imposes a true “mandatory” minimum sentence, or merely a minimum term of imprisonment if imprisonment is imposed at all (rather than a probationary sentence without any prison confinement). Id. at 591. The opinion emphasized that to designate a true mandatory minimum, the Legislature must use “unambiguous” language such as the word “mandatory,” or other equivalently clear terms or combinations of terms, or language expressly prohibiting suspended sentences, probation, parole, furlough, or reduction of a sentence for good conduct. Id. at 591 n.3, 597-603. By contrast, when a statute merely sets a minimum term of imprisonment, without such explicit textual indication of a “mandatory” sentence, it presumptively leaves judges discretion to impose a sentence of probation without imprisonment. Id. at 594-99. Observing that the Legislature has used inconsistent statutory language related to minimum and/or mandatory sentencing, the Court explained that the rule of lenity requires that any ambiguity in sentencing language must be resolved in favor of criminal defendants. Id. at 599-600, 603 (recognizing that some language which intuitively seems mandatory—such as “shall be [imprisoned] for not less than” X years—may be “insufficient to unambiguously convey the Legislature’s intent to create a mandatory minimum sentence.”).

Applying these guidelines and presumptions to the statute at issue in Rossetti, the Court concluded that the five-year minimum provision at issue required that any prison sentence imposed must be at least five years in length (precluding the trial court’s proposed one-to-two-year state prison sentence), but did not prohibit probation in lieu of prison, or later reduction of time served for good behavior. Id. at 603-05. The Court reasoned that the Legislature’s failure to specifically prohibit probation created an ambiguity, thus permitting the application of the rule of lenity and allowing for a sentence of probation. Id. at 603.

In reaching its conclusion that the statutory language forbids a state prison sentence of less than five years, if prison is imposed at all, the Court expressly overruled its precedent in Commonwealth v. Hines, 449 Mass. 183, (2007), which had held (or at least strongly implied) that in a statute featuring similar language (“shall … be punished by imprisonment in the state prison for not less than five years”), the absence of the word “mandatory” left the judge discretion to impose a state prison sentence with a minimum term of less than five years.

Concurring Opinion

Chief Justice Budd’s concurrence agreed with the majority “that the statutory language plainly requires that any State prison sentence imposed pursuant to this section must have a minimum term of incarceration of five years or greater” and that “to reach this commonsense conclusion, [Hines] must be overruled to the extent that it ignores the plain meaning of similar sentencing language in G. L. c. 265, § 18B.” Rossetti, 489 Mass. at 616 (Budd, C.J., concurring). However, the Chief Justice criticized the majority’s venturing beyond the reported questions “to conclude that § 178H(a)(2) allows a judge to impose a sentence of probation in lieu of a sentence of incarceration.” Id. She emphasized that the majority decision disregarded the plain language of the statute that a convicted offender “shall be punished by imprisonment.” Id. at 617, 620 (“[T]he court creates an interpretive presumption concerning the availability of probationary sentences that departs from the plain meaning of statutory language and is not grounded in legislative intent[,] . . . raising a serious question concerning the separation of powers.”).  Although Chief Justice Budd shared concerns “that mandatory minimum sentences risk unduly harsh penalties for any individual and contribute to the unjustly disproportionate rate of incarceration for Black and brown folks,” she concluded that that did not justify the use of interpretive shortcuts around clear (if harsh) sentencing language, because the Court is “bound to interpret statutes to faithfully effectuate legislative intent, even where we consider the Legislature’s policy choice unwise or unjust.” Id. at 621 (citations omitted).

Dissenting Opinion

Justice Wendlandt issued a sharp dissent focused squarely on the consequences of the decision: “At a time when we are beginning to understand that statutes imposing mandatory minimum sentences are resulting in the disproportionate incarceration of Black and brown defendants in our Commonwealth, we ought not to further strip judges of discretion in sentencing. There can be no doubt that the court’s decision to overrule [Commonwealth v. Hines, 449 Mass. 183 (2007)] does just that.” Rossetti, 489 Mass. at 621 (Wendlandt, J., dissenting).

Leaving aside the substantive merits of the Court’s rationale in Hines, Justice Wendlandt observed that the decision represented longstanding precedent that had provided judges with just and vital alternative choices to imposing mandatory minimum prison sentences. Citing stare decisis, the Legislature’s failure to act to correct any “perceived misconstruction of its intent,” and the Court’s stated commitment to racial justice, Justice Wendlandt argued for adhering to Hines and preserving its sentencing discretion for judges. Id. at 622-29. Here, a holding consistent with Hines would have allowed Mr. Rossetti to be sentenced to one to two years in state prison, which the sentencing judge apparently considered to be the fairest and most just disposition. Instead, Justice Wendlandt pointed out, the majority’s decision required a sentence of either five or more years in prison, or probation without incarceration, but nothing in between. Id. at 628-29 (“The panoply of choices previously available under our sentencing jurisprudence is now much more constrained.”).

Concluding Observations

Although the three opinions in Rossetti offer differing perspectives on the Court’s sentencing jurisprudence and application of statutory construction principles, they all shared concerns about the inequity of mandatory minimum sentences. Id. at 621-22, 627-29, n.15, n.25. The three opinions may be read as different responses to two related challenges that the Court has wrestled with in recent years: (1) that minimum and/or mandatory sentence laws can be unduly harsh and contribute unjustly to racial disparities in incarceration; and (2) the incongruous ways in which the Legislature has written such laws. As the Court has pointed out with some frequency, only the Legislature has the ability to address these flaws and ambiguities directly. See, e.g., id., 489 Mass. at 597-600 n. 11 and 17 (noting that “if the Legislature disagrees with [the Court’s] interpretation, it is free to amend or enact new statutes clarifying” its intent in sentence provisions); id., 489 Mass. at 622-23, 627-29 (Wendlandt, J., dissenting) (observing that legislative “inaction” has left it up to the Court to try to reconcile discordant statutory sentencing provisions); Commonwealth v. Montarvo, 486 Mass. 535, 542-43 (2020) (remarking that the Legislature has declined the Court’s invitations to amend and clarify statutes which created seemingly “anomalous” results by “offering a sentencing judge . . . a Hobson’s choice between probation and a mandatory term of twenty years in prison”) (citing Commonwealth v. Zapata, 455 Mass. 530, 535-36 (2009)). But the Legislature has not done so, and without legislative action to amend, clarify, and potentially make uniform sentencing statutes, the Court will likely continue to struggle with these issues. And the resulting jurisprudence, emerging through a process of jousting between the differing perspectives illustrated in Rossetti, may continue to prove challenging for lower courts and litigants to understand and apply.

Jared B. Cohen is a Massachusetts Assistant Attorney General. His previous article on this topic—“Careful Scrutiny: The SJC and Mandatory Sentencing Laws,” 65.3 Boston Bar Journal (Summer 2021)—was cited by the Court’s majority opinion in Rossetti. This article represents the opinions and legal conclusions of its author and not necessarily those of the Office of the Attorney General. Opinions of the Attorney General are formal documents rendered pursuant to specific statutory authority.