Audit revives DAs’ dismay over sentencing guidelines

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At least two of the state’s district attorneys are hoping that a recent report by Auditor Suzanne M. Bump will spur changes in the way the Sentencing Commission operates.

Though it was by design and hardly a secret, Bump found that the commission had not submitted the sentencing guidelines to the Legislature after three years of work to revise them. That deprived the guidelines of the force and effect of law, she determined.

The auditor recommended that the Sentencing Commission work with the Legislature to amend its governing statute, G.L.c. 211E, to establish specific timelines to submit any guideline revisions it approves to the Legislature.

For Norfolk County DA Michael W. Morrissey, the auditor’s report provided an opportunity to renew criticism he and the Massachusetts District Attorneys Association had first lodged in May, when they produced a “minority report” to respond to the new sentencing guidelines.

At the same time, Morrissey also wrote to Trial Court Chief Justice Paula M. Carey, demanding that the courts stop using the sentencing guidelines because they had not been submitted to the Legislature.

Bump, he posited, was calling on the Legislature to “rein in” the Sentencing Commission and, by extension, the Trial Court administration, which has trained judges in the application of the new guidelines, despite the lack of a legislative seal of approval.

But Morrissey is also not waiting for Beacon Hill to act. In a press release, he said he planned to ask his MDAA colleagues at their Nov. 20 meeting to support withdrawing MDAA representatives from the 15-member Sentencing Commission “until the commission stops breaking the law.”

Such a revolt might in and of itself violate Chapter 211E, noted the Sentencing Commission’s current chairman, Superior Court Judge Jeffrey A. Locke.

“It is not clear that the Massachusetts District Attorneys Association has any right to withdraw members appointed by the governor,” Locke said in an emailed statement.

Of course, members past and present of the Sentencing Commission also deny they are “breaking the law.” But beyond that, they believe that the state is well served by continuing to treat the guidelines as advisory, leaving the ultimate decision as to what justice demands in individual cases to trial judges.

Legislative intent

Those who think that submitting guidelines to the Legislature is optional point first to the fact that the 1996 guidelines, while submitted to the Legislature, were never approved.

“It’s important to understand we’ve had guidelines now for over 20 years that have not been enacted by the Legislature,” Locke said.

But Morrissey, who was in the Legislature when Chapter 211E was enacted, said there is no doubt in his mind that he and his legislative colleagues envisioned receiving guidelines from the commission for their review and possible approval.

One benefit of doing so, according to Essex County DA Jonathan W. Blodgett, would be to reveal and resolve conflicts between the guidelines and legislatively approved mandatory minimum sentences. One such conflict involves the current guidelines recommending a seven-year prison sentence for aggravated rape of a child, an “absolute violation of state law,” which calls for a minimum 10-year sentence, Blodgett said.

Morrissey said that the statute requires that the Sentencing Commission work with the Legislature and, by not even submitting the guidelines, the commission is foreclosing a mandatory conversation.

“I don’t see anything in the statute that talks about guidelines that are merely advisory,” he said.

Moreover, Blodgett said the manner in which the guidelines have been implemented contradicts an oft-heard refrain from the Trial Court administration about its commitment to transparency and working collaboratively with other stakeholders.

Others are just as adamant that the Legislature never intended to impose such obligations.

“The law doesn’t require the guidelines to be submitted to the Legislature; it never has,” said Randy Gioia, deputy chief counsel of the Committee for Public Counsel Services.

John H. Cunha, the Massachusetts Academy of Criminal Defense Lawyers’ current representative on the commission, agrees with that interpretation.

He insisted that if a sentencing judge determines to use the guidelines as a reference, doing so is consistent with the legislative mandate of Chapter 211E.

“The efficacy and usefulness of sentencing guidelines is aided by them having been tested in the crucible of empirical use,” Cunha said.

The guidelines have been steering judges’ sentencing discretion for more than 20 years, and during that time the Legislature has continued to fund the commission’s research and work, Gioia noted.

“That, in itself, is an implicit endorsement of its important function,” Gioia said.

However, the DAs have an unlikely bedfellow in a former defense attorney representative on the Sentencing Commission, Martin R. Rosenthal. The Boston lawyer vividly recalls that much of his enthusiasm for serving on the commission stemmed from the fact that the guidelines the panel developed eventually would be submitted to the Legislature. That, in turn, brought with it the potential to have a significant impact on ameliorating mass incarceration and racial disparities in sentencing, he noted.

While the Legislature failed to give its imprimatur to the previous guidelines two decades ago, Morrissey said that one should not presume a similar result this time around. He cites 2018’s Criminal Justice Reform Act as evidence that Beacon Hill does have the stomach for such sweeping pieces of legislation, at least occasionally.

Morrissey said that it should not be presumed that the Legislature would ignore guidance from a commission of stakeholders created specifically for the purpose of providing such guidance.

“I think the commission is wasting a good opportunity — and I also think it’s breaking the law,” Morrissey said.

But Locke said the question of whether the guidelines should be enacted is ultimately up to the Legislature.

“The commission would be happy to work with the Legislature,” he said.

The commission’s former chairman, Superior Court Judge John T. “Jack” Lu, wrote in a blog post earlier this year that a desire to avoid the “disastrous history” of the federal sentencing guidelines led the judges on the commission to oppose strongly the creation of guidelines that in any sense would be binding or mandatory.

Morrissey suggested, however, that the commission’s posture resulted from an unsuccessful attempt to convince the Legislature to repeal mandatory minimums early in the process.

“They followed the process once and did not get the result they asked for,” he said. “That does not mean they should abandon the process; it means they should develop a product that the Legislature can work with and possibly adopt.”

As far as the auditor’s suggestion that there be a deadline to submit guidelines to the Legislature, Cuhna said the idea is just that: “a suggestion — an opinion of the auditor.”

He said the MDAA getting the auditor involved on a procedural matter is somewhat disingenuous, given that prosecutors’ motivation for voting against the guidelines was primarily substantive: They were insufficiently punitive.

“The complaint to the auditor was a political move in the form of a ‘legal’ objection,” he said.

Process issues

In her report, Bump noted that she had “encountered a scope limitation,” which prevented her office from using its preferred method to examine the extent to which judges were referring to the sentencing guidelines.

The auditor asked the Executive Office of the Trial Court for certain data on all Superior Court closed cases in which sentences were imposed during Fiscal Year 2018.

From that “universe of transactions,” the auditor intended to select a sample of case files to review and determine the extent to which the new sentencing guidelines had been used.

The EOTC had denied her request because “it believed obtaining and reviewing this information was not within the scope of our audit,” Bump said.

In response to an inquiry from Lawyers Weekly, a Trial Court spokesperson reiterated that position.

“It is not the role of the auditor to audit judicial decisions,” Erika Gully-Santiago wrote in an email.

To Morrissey, that was the Trial Court “ignoring” the auditor’s request for more detailed information.

But Locke said in many cases the court file would not have indicated whether the guidelines had informed a sentencing calculation.

What the auditor got instead — the results of a survey the Sentencing Commission conducted with judges over the summer — “gave a better picture” of the extent to which the guidelines were being used, Locke said.

Of the 259 judges who received the survey, 149 responded. Of those 149, 79, or 53 percent, reported using the revised sentencing guidelines in some capacity during the sentencing process.

The majority of the respondents, 44 of the 79, indicated that they consulted the guidelines while determining their sentences.

The auditor’s report noted that other judges stated that they did not use the guidelines because they were “not required” or because they disagreed with sentencing guidelines.