Bump follows lead of DAs

Court challenge may be best way to settle sentencing dispute

STATE AUDITOR SUZANNE BUMP has joined the debate over the legal status of the advisory sentencing guidelines that the state’s Sentencing Commission issued two years ago.

Her audit of the Sentencing Commission, undertaken at the prompting of some of the state’s district attorneys and issued Thursday, merely confirms a point on which there is no disagreement – the Sentencing Commission has not submitted its advisory guidelines to the Legislature for enactment. The underlying legal question, on which her office has no particular responsibility or authority to opine, is whether the commission is required to do so.

In an earlier CommonWealth opinion piece, I analyzed the meaning of the words “take effect” in the section of the Sentencing Commission’s enabling act providing that its guidelines “shall take effect only if enacted into law.” Enactment of the guidelines into law would have the “effect” of constraining the sentencing discretion of judges in a way that the US Supreme Court, construing analogous federal guidelines, ruled would violate a defendant’s Sixth Amendment right to trial by jury.

The auditor, following the lead of the district attorneys, appears to assume that until the guidelines have been enacted into law, they may not be used for any purpose, even an advisory one.  This very restrictive interpretation conflicts with other powers that the Legislature has delegated to the commission, such as the authority to “serve as a clearinghouse for the collection, preparation, and dissemination of information on sentencing practices and assist courts, departments, and agencies in the development, maintenance, and coordination of sound sentencing practices,” a mandate that aptly describes their present “advisory” use.

District Attorney Michael Morrissey’s demand to Trial Court Chief Justice Paula Carey earlier this year that the courts “cease and desist” their advisory use of the guidelines implied that, should the courts fail to comply, a lawsuit would follow. Pursuit of that remedy would appear to be the only appropriate recourse for his grievance.

Margaret Monsell, a former assistant attorney general and former general counsel to the state Senate Committee on Ways and Means, is an attorney practicing in the Boston area.