In May 2016, the departments of the Massachusetts Trial Courts that handle criminal offenses issued recommended protocols and best practices designed to assist judges to impose appropriate but not overly punitive criminal sentences. The reports emerging from the working groups of the District Courts and the Boston Municipal Court and the Superior Court explicitly share the goal of reducing over-incarceration while making use of the social science evidence available regarding which sentences (particularly including conditions of probation) are most likely to successfully prevent recidivism.
I focus here on the detailed Superior Court Report (“Criminal Sentencing in the Superior Court: Best Practices for Individualized Evidence-Based Sentencing”), which sets forth principles intended to guide judges in imposing sentence. Many are uncontroversial, such as that judges should impose sentences consistent with goals including “deterrence, public protection, retribution, and rehabilitation.” Other key protocols set forth in the Report are more interesting, and at least one is fairly controversial.
Use of Risk Assessment Instruments
The Report generally envisions an expanded role for the Probation Service. The Report suggests that counsel on both sides should be required to confer with the Service regarding the length and conditions of probation, and that in cases where the court is likely to impose a sentence of probation, the Service should “perform an assessment relating to the criminogenic needs to be addressed through probation.”
Such risk assessments, which seek to determine the risk that a particular offender will reoffend based on factors including criminal record, gender, education, employment, financial, substance use history, peer associations, family and social support, and criminal attitudes and behaviors, are highly controversial. There are serious concerns about punishing a defendant more harshly because he has characteristics (like a lack of education or financial resources) in common with individuals who are deemed statistically likely to commit crimes—among them the likelihood that an assessment based on such characteristics will be racially biased. ProPublica recently published a scathing indictment of such instruments, following its study in Florida which found that the risk assessment used there frequently underestimated the risk of recidivism for white offenders and overestimated the risk for black offenders. (To be fair, the Massachusetts Probation Service uses the Ohio Risk Assessment System, which is not the system that ProPublica evaluated in Florida.)
To its credit, the Superior Court Report recognizes the legitimate concerns about risk assessments, and endorses their use only in order to determine conditions of probation, explicitly cautioning that such assessments should not be used to decide on the length of incarceration or on whether incarceration is necessary. However, the use of such instruments remains problematic insofar as they create a risk of racial bias in the imposition of probation conditions.
Understanding of Practical Problems for Defendants on Probation
The Superior Court Report also demonstrates an understanding of common sentencing related problems. It recognizes the risk that an excessive number of probation conditions may actually increase the risk of recidivism, and notes that rewarding defendants who do well on probation by reducing conditions or terminating probation early can be a positive incentive. The Report similarly cautions that a judge should avoid imposing fees where they will be a financial hardship on a defendant. And it makes it clear that revocation of probation and imposition of a sentence of incarceration should be the last resort even where a defendant struggles and violates conditions of probation. Many of the best practices that the Report recommends display a grounded understanding of the practical challenges that defendants face, and a commitment to helping them succeed and avoid reoffending.
Sentencing Guidelines and Judicial Discretion
The Massachusetts criminal justice system is unlike the federal system (discussed below) in that judges’ discretion at sentencing is not constrained by the requirement that judges calculate and reference sentencing guidelines. The new protocols do not change this status quo and the recommended best practices largely encourage judges to use their discretion to craft individualized sentences.
In the federal system, imposition of a sentence within the guidelines range was mandatory until the Supreme Court’s decision in United States v. Booker in 2005. Although federal judges can now depart from the Sentencing Guidelines if they find that the defendant’s individual circumstances warrant that choice—or if they disagree with the policy considerations embedded in the Guidelines—in all federal cases the judge’s determination of a sentence must begin with the process of calculating what the sentencing range is under the Guidelines, and federal sentences frequently do fall within the Guidelines range.
Massachusetts does have sentencing guidelines, but their use is not mandatory and you could sit in a typical courtroom all day without hearing them mentioned once. (As the Superior Court Report notes, “Sentencing guidelines were first established in 1994, have not been revised since, and are advisory.”) Notably, the District Court and Boston Municipal Court best practices reports issued on May 2 do not mention the use of those guidelines in any way. The Superior Court Report does suggest their use, among many other factors, but cautions that they can be a mixed blessing: “formula-based sentencing brings about some uniformity in judicial sentencing practice but has the potential to do so at the expense of flexibility to balance the various goals of sentencing in an individual case.”
The overall thrust of the new protocols and best practices is a praiseworthy attempt to reduce unnecessary incarceration in the Commonwealth of Massachusetts, though judges must be wary of racial and other biases that may be built into the risk assessment system because of its reliance on group characteristics.