SJC says ‘three strikes’ law doesn’t bar probation
Court says Legislature can easily make intent clearer
By 
THE SUPREME JUDICIAL COURT ruled that some defendants convicted under a section of an eight-year-old law focused on delivering stiff justice to repeat offenders can instead be placed on probation by a judge.
Writing for the court in a unanimous decision, Justice David Lowy concluded that a portion of the “three strikes” law was “ambiguous” after a court analysis of legislative history, conference committee reports, and precedent leading up to its 2012 passage.
Yesterday’s ruling came after defendant Ricardo Montarvo appealed his third-strike sentence. Montarvo was found guilty by a jury in 2017 in a Worcester case on charges of armed assault with intent to murder and assault and battery with a dangerous weapon for hitting a man on the head with a golf club during an argument.
Under the law, a judge is required to impose the maximum sentence for a person’s third violent felony offense. But the SJC pointed out that there are two sections of the law dealing with repeat offenders and that Montarvo was charged and convicted under a section that does not explicitly bar probation as a sentencing option. Another section of the law covering a set of repeat offenses explicitly prohibits probation for a third conviction.
“These are not two independent statutes, but rather two subsections of the same statute that were enacted simultaneously,” he wrote. The confusion, he said, was well known when the Legislature was dealing with negotiations in conference committee, and was not taken into account in the final law. “When the Legislature intends to bar probation, it knows how to say so explicitly,” he wrote.
Three strikes laws have long been controversial among defense attorneys who say they eliminate judicial discretion. Advocates also say that “three strikes” laws have a disproportionate impact on minority offenders who are arrested on more drug charges than white offenders, and is a violation of constitutional principles. For decades, they’ve also said such laws clog up courts and jails with people who wish to go to trial instead of pleading guilty to a life sentence.
Montarvo was indicted and ultimately convicted as a habitual criminal based on two previous convictions for an unarmed robbery and drug offenses. He was given the maximum penalties on the assault charges — a combined 30 years — by Worcester Superior Court Judge Richard Tucker. “I’m very sorry to have to do this, sir. I hope you understand I have no discretion,” Tucker told the defendant then.
Ines McGillion, Montarvo’s attorney, said the SJC ruling was a victory for greater judicial discretion in sentencing.
“I think the decision interprets the statute in a way that provides a safety valve for third-strike nonviolent offenders,” McGillion told the Globe, referring to Montarvo’s two earlier convictions. She said it gives back discretion to judges in some cases where “a defendant warrants mercy.”
“Should the Legislature decide to do so, it may amend [the law] to bar a judge from imposing probation. It need not look far for how to accomplish this goal,” the SJC ruled.