The Kickham Comment - Boston Criminal Attorney Blog
Like an unusually large wave that occasionally hits the shore, every few years there is a swell on Beacon Hill to “reform” something. Back in the 1990’s, get-tough-on-crime advocates successfully passed legislative “crack-down” amendments to many criminal law statutes, several of them requiring mandatory minimum sentences for a variety of crimes – mostly Massachusetts drug offenses. As a Massachusetts drug offenses lawyer, I can assure you that this approach produced some pretty awful legal results in courtrooms across the state – tying judges’ hands any time that a guilty verdict was returned by a jury on often victim-less, relatively minor drug charges.
Now, a backlash of sorts has hit Beacon Hill – in the current wave to reform many elements of the criminal justice system in Massachusetts. The overall thrust of this effort, its sponsors say, is to reduce the numbers of people that are caught up in the criminal courts here. In the process, the bill has sparked a lot of debate, and criticism as well. I’ll list out the major suggested changes below, with some brief commentary:
- Current mandatory minimum sentences for several drug offenses — including cocaine distribution and selling drugs inside 300 feet of a school — would be repealed. Mandatory minimum sentences require judges to sentence anyone found guilty of certain crimes, many of which are various drug offenses, to a minimum jail or prison time, with no chance of parole. This would give back to judges the wider discretion they once had in these cases, and as anyone who knows me is aware, that’s a good thing. As I’ve spoken of and written previously, mandatory minimum sentences do little if anything to prevent crime, and just fill our prisons up with low-level drug offenders, instead of reserving space for violent criminals. Notwithstanding, the senate’s bill would retain mandatory minimum sentences for defendants convicted of dealing the largest amounts of illegal drugs – usually, over 100 grams of cocaine or heroin. Any drug trafficking charges involving opioids would also trigger mandatory minimums.
- The age of “criminal majority” in Massachusetts, currently 18 years of age, would be raised to 19. Currently, 18-year-olds who are tried in either District Court or Superior Court face the same penalties as any other adult. Minors under the age of 18 – from 7 years of age to 17 years, are currently tried in Juvenile Court. Juvenile court cases are not open to the public and are decided by either a jury of six or by a juvenile court judge. Punishment for convictions can include sentencing to a Department of Youth Services (DYS) facility until the defendant reaches his or her 18th birthday, but juvenile court convicts cannot be sentenced to either a county jail or a state prison (where adults are incarcerated.)
In extremely serious and violent cases, prosecutors also have the ability to ask a grand jury to indict 14-, 15-, 16-, or 17-year-olds as “youthful offenders.” These types of defendants are tried in open court, and they are subject to the same sentences that an adult can receive. However, a minor can be tried as a youthful offender only if that minor has been previously committed to DYS or is charged with a major offense, such as those involving serious violence. (As to the ultimate criminal charge – murder – a minor who is 14 or older is now tried as an adult.) The proposed change would mean that most offenses committed by 18-year-olds would very likely be prosecuted confidentially, before a juvenile court judge. Under this proposed revision, 18-year-old defendants would be treated like minors. Opponents have claimed that this change would give 18-year-olds the same rights that 19-year-olds have, but spare them from facing the same penalties if they committed the same crime.
- Presently, it is a criminal offense for anyone under the age of 16 to have sex with another person. (This type of statute is where the crime of “statutory rape” comes from.) The Senate’s version of the proposed reform bill would legalize consensual sex between youths who are close in age — for example, a 19-year-old and 15-year-old, for example — would no longer be subject to criminal prosecution. The proposed revision is being referred to as a “Romeo and Juliet” law.
- The current Senate version would mandate that judges make written findings that justify or explain the judge’s sentencing to prison any primary caretaker of children.
- Currently, if a defendant misses a scheduled court appearance, a judge can suspend that person’s driver’s license. (Didn’t know that, huh?) The current bill would reduce driver’s license suspensions for such non-driving events.
- The above are just a few of the more notable changes the current bill proposes. Among many other changes in the bill, several fees and criminal fines in the criminal courts would be reduced.
The chief proponent of these major criminal law revisions is state Senator William N. Brownsberger, who is chairman of the Senate Joint Committee on the Judiciary. He has stated that the goal is to “reduce the unnecessary use of incarceration and criminal justice involvement as much as possible, while at the same time allowing law enforcement to focus on the most serious crimes.” Predictably, the Senate bill has the support of Attorney General Maura Healey (a liberal Democrat,) who has termed called the bill “a major step towards achieving comprehensive criminal justice reform.”
The Massachusetts Senate is, currently, the more liberal than the House of Representatives, so we will see what the House version turns out to be. It will almost certainly be different and any differences would have to be worked out in a joint Senate-House Committee.
Regardless, as a Massachusetts criminal defense attorney, my position on this subject is that any bill that reduces the number of non-violent criminal offenders in our jails and prisons, is a good idea. These are, and should be, places for violent offenders.