Sentencing guidelines raise thorny legal issues for DAs, judges

“WE’RE SAYING to the judiciary: ‘Stay in your lane.’”

That’s how Norfolk District Attorney Michael Morrissey summed up the letter he sent in May to Trial Court Chief Justice Paula Carey. In two rather truculent pages, he demanded that Carey order judges to stop consulting the new advisory guidelines that the state’s Sentencing Commission had issued 18 months earlier.

“Public confidence in the integrity” of the judiciary is at risk, he warned.

His argument? Under the statute that created the Sentencing Commission, any guidelines it issues take effect only if they’re enacted into law by the Legislature. No guidelines have been enacted, and therefore any use of them by judges, even in an advisory capacity, unconstitutionally infringes on the Legislature’s power, Morrissey argued. The DA reinforced his position by citing his past legislative experience (then-state senator Morrissey was present at the Sentencing Commission’s creation in 1993): “As a former legislator, I can attest that this is not a gray area. It is a bright line…The statute is simple,” he wrote.

Chief Justice Carey responded that the state’s judges certainly recognize that any statutory sentencing mandate (like a statutory minimum mandatory sentence) prevails over any recommendation from the guidelines. But judges retain considerable discretion with regard to sentencing, and they may continue to consult the guidelines in an advisory capacity to further the goals of consistency and fairness in criminal sentencing, just as they have since the first set of guidelines was released more than 20 years before.

Her response went on to add some backstory to this dispute. The new guidelines were released in 2017 after the nine Sentencing Commission members voted 6-2, with one abstention, to issue them. The two “no” votes were cast by the two assistant district attorneys on the commission (the abstaining vote was cast by the attorney general’s representative), and the Massachusetts District Attorneys Association issued a minority report that faulted the guidelines for lacking the required legislative approval and, on substance, for being dangerously lenient besides.

Morrissey’s letter invoked the “cease and desist” language that’s typically included in a party’s final communication prior to filing a lawsuit.

Now that 100 days have passed without a resolution, will he follow through with litigation?  And if he does, who will join him?

Morrissey alone signed the letter to Carey, although three of the state’s 11 DAs (Jonathan Blodgett of Essex, Michael O’Keefe of the Cape and Islands, and Timothy Cruz of Plymouth) offered their support in press coverage, and three others (Anthony Gulluni of Hampden, David Sullivan of the Northwestern district, and Thomas Quinn of Bristol) were reported by the Globe to have endorsed it. The loss of four district attorneys (the DAs from Berkshire, Middlesex, Suffolk, and Worcester did not give their backing to Morrissey’s letter) represents some erosion of support from a year earlier when the entire District Attorneys Association voiced its opposition.

What will the legal argument be in any action by the DAs? Morrissey contends that the Massachusetts Sentencing Commission statute, enacted in 1993, is “simple,” but in the past 26 years a considerable body of constitutional law interpreting other similar statutes has developed. He and his allies, it seems, have not taken that case law into account.

The form of the sentencing guidelines that the federal Sentencing Commission introduced in the 1980s and that many states, including Massachusetts, have copied since, is a grid. Under this rubric, a list of criminal offenses forms the vertical axis and the specific circumstances of the crime for which a defendant is to be sentenced (the defendant’s criminal history, whether or not the crime included violence, etc.) forms the horizontal axis. If the Massachusetts guidelines were to “take effect” through legislative enactment, as Morrissey contends is necessary, they would constrain a sentencing judge’s discretion. Under the statute, the sentencing judge “shall” (emphasis added) impose a sentence within a range prescribed by the sentencing guidelines.” Such constraint, the US Supreme Court has ruled with respect to the mandatory federal guidelines, unconstitutionally violates the Sixth Amendment right to trial by jury.

As that court explained in a series of decisions in the early 2000s, a mandatory sentence must be based entirely on facts that the defendant admitted to or that a jury found beyond a reasonable doubt. Take, for example, the case where a jury convicted a defendant of distributing 100 grams of heroin. If a judge were to take that verdict, combine it with the defendant’s long criminal history, and apply the guidelines’ mandate for a lengthier prison sentence, that would violate the right to trial by jury that the Sixth Amendment protects. As a remedy, the Supreme Court ordered that the section of the federal statute making the guidelines mandatory be severed, rendering them, in the words of the court, “effectively advisory.” Similar mandatory state guidelines, including those in California and Connecticut, have been invalidated on the same grounds.

So what happens next? Seven of our district attorneys are contending that it’s unconstitutional for judges to use sentencing guidelines in an advisory capacity when the US Supreme Court has ruled that sentencing guidelines are constitutional only when they’re used in that capacity. As those DAs mull whether to continue to press their argument, they might consider whether a more prudent course of action might be just to stay in their lane.

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.