How to avoid sentencing scandals

The furor over Superior Court Judge Maria Lopez’s sentence of Charles Horton to home confinement and probation for abducting a child and sexually assaulting him at the point of a screwdriver has, as usual in allegations of judicial “softness” on criminals, veered off in the wrong direction. Calls for the judge’s removal from the bench or even formal review of her judicial conduct are as misdirected as they are futile, given the evidence that Lopez acted well within her legal authority and, despite some ill-chosen words, in a manner that is, by courthouse standards, nothing out of the ordinary.

The problem here is not that Lopez has “abused” her discretion. It’s that she, like other judges across the Commonwealth, acts every day on the basis of nearly unlimited latitude in sentencing — and, by extension, plea bargaining — with no accountability to the public or even other judges.

That problem could be remedied — if the district attorneys who decry sentences like Lopez’s put their political weight behind sentencing guidelines legislation instead of thwarting it. But as it is, the DAs have settled back into a stance of agreement in principle but opposition in reality.

A set of guidelines — developed by the Massachusetts Sentencing Commission, which is made up of prosecutors, judges, and defense attorneys — has languished in the Legislature for four years, stymied largely by the district attorneys. The DAs see in the details of the sentencing plan an attempt by the judiciary to maintain maximum discretion under the cover of guidelines that are full of loopholes. Their objections to the plan have gotten the cold shoulder from the judges, who have many friends on Beacon Hill, so the DAs have opted for the status quo.

With sentencing guidelines, the Judge Lopez flap might never have happened.

But prosecutors ought to recognize that they, and the public, have too much to gain from the measure to give up on it as they have. Indeed, had they helped push a version of sentencing guidelines into law, the Judge Lopez flap might never have happened.

Currently, a judge is free to impose any sentence up to the statutory maximum for a particular crime. Only for certain “mandatory minimum” offenses — mostly drug dealing, but also murder, use of firearms in a crime, and repeat drunk driving — are minimum sentences dictated by law.

Similarly, a judge is free to accept any defendant’s guilty plea on terms that satisfy the judge, even over the prosecutor’s objection. Most plea bargains are still negotiated between defense and prosecution, but some deals — like Horton’s — are struck directly between judge and defendant. The judge’s decision need not be explained publicly, and cannot be appealed by the prosecution.

Under the proposed sentencing guidelines, judges would retain wide discretion in sentencing, but a sentencing “grid” would set a presumptive range of penalties according to the seriousness of the crime and criminal record of the defendant. A judge could depart from the presumptive penalty, giving a sentence either more harsh or more lenient than recommended, but only on the basis of a written decision. The non-conforming sentence could be appealed by either defense or prosecution for review — and possible rejection — by the court of appeals.

Under the guidelines legislation proposed by the sentencing commission, the most serious charge Horton pleaded guilty to, assault with intent to rape a child, carries a presumptive sentence range of five to eight years in prison for a defendant with little or no prior record. The second most-serious charge, kidnapping, would get three-and-a-half to five years behind bars. (For the lesser charge of indecent assault and battery on a child, a term of one to three years in prison is recommended, although a defendant with a minor or moderate criminal history could be given intermediate sanctions, such as home confinement, instead.)

Even under the guidelines, Lopez could have imposed her preferred sentence, no matter how unpalatable it might be to prosecutors or the public. But the judge would have had to explain her decision, citing specific mitigating circumstances, and and prosecutors would have been able to appeal.

The sentencing guidelines proposed for Massachusetts would not eliminate discretion or judgment, as federal guidelines have largely done, but they would promote consistency and proportionality in sentencing — and discourage unjustified extremes in sentencing, at both ends of the spectrum. The Sentencing Commission’s annual review of sentencing practices found that less than 10 percent of sentences imposed last year were outside the range, either more lenient or more severe than recommended. The guidelines would not ban these departures, but place them under stricter scrutiny and make them subject to reversal by a higher court.

But since 1996, when the sentencing commission submitted its plan to the Legislature, the guidelines have gone nowhere. This is principally because the state’s district attorneys oppose them.

Prosecutors support a sentencing grid–but not this one.

The prosecutors are on record in support of a sentencing grid — but not this one, which they say is not tough enough, on either defendants or judges. They say the sentence ranges are too low, particularly for certain crimes of violence, including domestic assault. And the guideline system does too little, they say, to limit judicial discretion.

The guidelines “provide the judges with an infinite number of grounds for departure” from recommended sentences, says Geline Williams, executive director of the District Attorneys Association and a (dissenting) member of the Sentencing Commission. Without clearly defined — and limited — standards for departure, she says, the right of appeal becomes “hollow and meaningless.” As long as a judge states his or her reasons, whatever they are, “why would the appeals court disturb that [decision] as an abuse of discretion?” she asks.

The same would be true of Gov. Cellucci’s post-Horton bill to give prosecutors the right to appeal sentences. Without clear standards — binding guidelines with specified grounds for departure — on what basis could the appeals court overrule a judge’s considered decision?

To Williams, the Lopez-Horton case, far from proving the need for guidelines legislation, demonstrates “why the guidelines are no good,” says Williams. “It would not have altered one iota what this judge chose to do or what would happen on appeal.”

The prosecutors have valid points, but they are ones that could — and should — be addressed by the Legislature in crafting a sentencing guidelines law. Some crimes could be shifted toward tougher presumptive sentences, though not as many as the DAs would like. (The sentence grid they have proposed would send thousands more offenders to prison for lesser crimes.)

And the list of valid “mitigating circumstances” could be tightened to establish real grounds for review. That means, in a case like Lopez’s sentence of Horton, the judge would have to provide real reasons provided by the judge could be subject to scrutiny in the appeal process, to determine if they were indeed valid — based on the law and the evidence. If not, the sentence could be overturned.

The prospect of putting an end to such unexplainable — and unaccountable — sentences has not been enough to energize the DAs behind guidelines legislation. Unable to convince the Sentencing Commission, and especially its chairman, Superior Court Judge Robert Mulligan, to accept tougher and tighter guidelines, the DAs have taken their ball and gone home.

That favors only the status quo. On Beacon Hill, the prosecutors exercise an absolute veto on crime legislation: Few lawmakers will vote for a sentencing bill that is not seen as tough on crime, and the DAs have unique power to dash such claims.

If DA’s won’t push for reform, they should stop complaining.
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As long as the DAs keep guidelines legislation at arm’s length, it’s not going anywhere. Recently, after a long and frosty silence, discussions between Judge Mulligan and a delegation of DAs has resumed, in the hopes of working out some of their differences. “We are willing to come back to the table,” says Middlesex County District Attorney Martha Coakley, president of the prosecutors’ association. “We haven’t walked away from it.” But there is no indication, from Coakley or anyone else, that the DAs are willing to make sentencing guidelines — any guidelines — a political priority.

Prosecutors need to realize that if there is ever to be consistency and accountability in criminal sentencing in this Commonwealth, it’s something they have to put themselves on the line for. If they won’t do so, they should stop complaining about the likes of Judge Lopez.