Raising the Bar on Sentencing Policy: The Massachusetts Sentencing Commission

by Hon. John T. Lu and Kevin Riley

The Profession
“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

Office;

• 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
intervention.