Last month, the Massachusetts Supreme Judicial Court made a landmark ruling on victim testimony, holding in Commonwealth v. McGonagle that judges can consider the sentence recommendations of crime victims. The ruling feels especially timely given the recent national attention on the role of victim testimony, and the judge, in the Larry Nassar Abuse case.
Here in the Commonwealth, state law has allowed victims to appear in court to share personal accounts and recommend a sentence for the past two decades. Massachusetts General Law, 258B, Section 3(p) permits “victims, to be heard through an oral and written victim impact statement…against the defendant about the effects of the crime on the victim and as to a recommended sentence.” In McGonagle, an assault and battery case, the victim recommended a sentence to the judge at the sentencing hearing, and the defendant thereafter challenged the portion of M.G.L. 258B which permits the victim to recommend a sentence.
The challenge argued that consideration of the victim’s recommended sentence violates the 8th amendment of the U.S. Constitution and Art. 26 of the Massachusetts Declaration of Rights, which prohibits cruel and unusual punishment as well as the constitutional guarantee of due process. Part of the Defendant’s argument relied on the 2016 Supreme Court decision in Bosse v. Oklahoma, which precluded the use of victim sentencing recommendations to the jury in a capital punishment case.
The SJC ultimately distinguished the constitutional concerns related to the jury phase of a capital murder trial from the presentation of evidence to a judge in a non-capital case. Justice Lowy’s opinion for the unanimous court concluded that “[w]e all stand equal before the bar of justice, and it is neither cruel nor unusual or irrational, nor is it violative of a defendant’s due process guarantees, for a judge to listen with intensity to the perspective of a crime victim.”
You can read the full opinion here.
Legislative and Public Policy Manager
Boston Bar Association