SJC says ‘three strikes’ law doesn’t bar probation 

Court says Legislature can easily make intent clearer

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. 

Legislative intent in the section Montarvo was convicted under, Lowy said, was unclear, writing that “the statute’s text is ambiguous.” One part, he said, makes probation seem unavailable, while another part of the statute keeps the option open.

“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.”

Meet the Author

Sarah Betancourt

Reporter, CommonWealth

About Sarah Betancourt

Sarah Betancourt is a long-time Latina reporter in Massachusetts. Prior to joining Commonwealth, Sarah was a breaking news reporter for The Associated Press in Boston, and a correspondent with The Boston Globe and The Guardian. She has written about immigration, incarceration, and health policy for outlets like NBC, The Boston Institute for Nonprofit Journalism, and the New York Law Journal. Sarah has reported stories such as a national look at teacher shortages, how databases are used by police departments to procure information on immigrants, and uncovered the spread of an infectious disease in children at a family detention center. She has covered the State House, local and national politics, crime and general assignment.

Sarah received a 2018 Investigative Reporters and Editors Award for her role in the ProPublica/NPR story, “They Got Hurt at Work and Then They Got Deported,” which explored how Florida employers and insurance companies were getting out of paying workers compensation benefits by using a state law to ensure injured undocumented workers were arrested or deported. Sarah attended Emerson College for a Bachelor’s Degree in Political Communication, and Columbia University for a fellowship and Master’s degree with the Stabile Center for Investigative Journalism.

About Sarah Betancourt

Sarah Betancourt is a long-time Latina reporter in Massachusetts. Prior to joining Commonwealth, Sarah was a breaking news reporter for The Associated Press in Boston, and a correspondent with The Boston Globe and The Guardian. She has written about immigration, incarceration, and health policy for outlets like NBC, The Boston Institute for Nonprofit Journalism, and the New York Law Journal. Sarah has reported stories such as a national look at teacher shortages, how databases are used by police departments to procure information on immigrants, and uncovered the spread of an infectious disease in children at a family detention center. She has covered the State House, local and national politics, crime and general assignment.

Sarah received a 2018 Investigative Reporters and Editors Award for her role in the ProPublica/NPR story, “They Got Hurt at Work and Then They Got Deported,” which explored how Florida employers and insurance companies were getting out of paying workers compensation benefits by using a state law to ensure injured undocumented workers were arrested or deported. Sarah attended Emerson College for a Bachelor’s Degree in Political Communication, and Columbia University for a fellowship and Master’s degree with the Stabile Center for Investigative Journalism.

The bill creating the three-strikes penalty was named for Melissa Gosule, a teacher who was murdered in 1999 by a repeat violent offender who had served only two years in prison for over two dozen criminal convictions, and was signed by then-Gov. Deval Patrick.

“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.