DAs suspend participation in Mass. Sentencing Commission

Judge Locke, the chair, says DAs aren't really members

STATE HOUSE NEWS SERVICE

MEMBERS OF THE STATE’S district attorneys association are no longer participating in the Massachusetts Sentencing Commission, a panel the prosecutors say is not complying with state law.

The Massachusetts District Attorneys Association on Friday announced its members had voted to suspend their participation. Hampden District Attorney Anthony Gulluni, the association president, said that state law “specifically requires” the commission to submit its proposed sentencing guidelines to the Legislature.

“Because this has not occurred, we are suspending our participation,” Gulluni said in a statement. “The commission has ignored repeated requests to abide by this governing law, which is rooted in basic Constitutional principles regarding the separation of powers.”

The 15-member commission has nine voting members, and two of those nine are assistant district attorneys chosen from a list compiled by the district attorneys association — the current members are Mary-Alice Doyle of Essex County and Sharon Thibeault of the Cape and Islands District Attorney’s Office.

“The District Attorneys Association cannot ‘suspend participation’ because they are not members. Their only statutory role is to recommend assistant district attorneys to the governor for appointment,” Superior Court Judge Jeffrey Locke, who chairs the commission, said in a statement. “The governor appoints individuals who are sworn in to be voting members of the commission.”

Locke said the commission “would welcome a dialogue with the Legislature or appropriate committees regarding the submission of legislation relating to the commission or the sentencing guidelines.”

The law establishing the commission says that it “shall recommend sentencing guidelines, which shall take effect only if enacted into law.” The commission, in November 2017, published a set of Advisory Sentencing Guidelines, and a statement from the district attorneys association, raising the prosecutors’ objections, was adopted as the minority report.

District attorneys contacted Auditor Suzanne Bump earlier this year, asking her to investigate whether the commission was violating the law by providing advisory guidelines to judges but not submitting their recommendations to lawmakers.

“The Commission was created to help the Legislature with complex questions in making criminal law. It was never intended, and is not empowered, to cut the Legislature out of the process entirely,” Norfolk District Attorney Michael Morrissey said Friday. “As long as they insist on violating the statute and the constitutional separation of powers, the DAs should not be a party to it.”

Bump’s performance audit, published on November 7, found that the commission did not submit its revised guidelines to the Legislature and that the guidelines therefore “do not have the force and effect of law.” She recommended the commission work with lawmakers to establish “specific timelines” for the commission to submit any guideline revisions to the Legislature.

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The audit said the commission’s guidelines are “used in an advisory capacity” in the court system, referred to by both defense attorneys and assistant district attorneys. Morrissey said judges are “challenging prosecutors when our recommendations differ.”

Locke, the Sentencing Commission chair, said the commission “has provided advisory sentencing guidelines for consideration by judges in various criminal courts of the Commonwealth for over 20 years.”

“Judges have complete discretion in deciding whether to consult, follow, or ignore sentencing guidelines,” he said.