Articles Posted in Law Commentary

On August 8, 2016, the SJC issued a decision in Commonwealth v. Henry, holding that judges must take a defendant’s ability to pay into consideration when assessing whether to order restitution, and in determining the amount of restitution that a defendant can be ordered to pay. The Court also set forth several guidelines regarding the imposition of restitution as a condition of probation.

The facts of the case are as follows. The defendant was employed as a cashier at a Walmart store. “A Walmart video camera captured [her] ‘free-bagging’ items; that is, with certain customers, she placed some store items into bags without scanning the items at the cash register, so that these customers received these items without paying for them. As a result,” the defendant was charged with larceny over $250 under G. L. c. 266 § 30. She admitted to facts sufficient to warrant a finding of guilty and was placed on administrative probation, one condition of which was the payment of restitution. At the ensuing restitution hearing, the Commonwealth presented evidence as to the retail sales price of the stolen items and as to the percentage of “markup” on items sold in the store. The defendant testified that Walmart had terminated her employment, that she had been found ineligible for unemployment benefits, and that she had no income of any kind. In his restitution order, the judge “declared that the loss is measured by the retail loss and ordered that restitution in [that] amount … be paid during the period of probation at a rate to be determined by the probation department.”

In its decision, the SJC set forth the following guidelines regarding restitution as a condition of probation. First, a judge must “consider the defendant’s ability to pay when setting the restitution amount because a judge may order restitution in a criminal case only as a condition of probation” “and a probationer cannot be found in violation for failing to pay a restitution amount that the probationer cannot reasonably afford to pay.” “Burdening a defendant with [the] risks [associated with a violation of probation] by imposing restitution that the defendant will be unable to pay violates the fundamental principle that a criminal defendant should not face additional punishment solely because of his or her poverty.” Second, the SJC “invoke[d] [its] superintendence power to declare that a judge may not extend the length of probation where a probationer violated an order of restitution due solely to an inability to pay.” “An extension of the period of probation punishes a defendant” by “extending the restrictions on a defendant’s liberty arising from probation” and by “subject[ing] the probationer to additional punishment solely because of his or her poverty,” in the event that he commits a new offense during the extended probationary term. Third, “the length of probation supervision imposed at the time of sentence should not be affected by the financial means of the defendant or the ability of the defendant to pay restitution…. [Therefore,] the ability to pay determination should be made only after the judge has determined the appropriate length of the probationary period based on the amount of time necessary to serve the twin goals of rehabilitating the defendant and protecting the public.” Fourth, “[t]he monthly amount [of restitution] must be determined by the judge; it cannot be delegated to the probation department.” Fifth, the SJC defined, “for the first time,” “the legal standard for determining the defendant’s ability to pay restitution”: such payment should not impinge on the defendant’s ability “to meet minimum basic human needs such as food, shelter, and clothing for the defendant and his or her dependents.” Sixth, “in cases of retail theft, the amount of actual economic loss for purposes of restitution is the replacement value of the stolen goods unless [as in this case] the Commonwealth proves by a preponderance of the evidence that the stolen goods would otherwise have been sold, in which case the retail sales value is the better measure of actual loss.” Continue reading →

In July of 2015, amendments to the Massachusetts Rules of Professional Conduct took effect. The revisions covered a wide range of issues, including post-trial communications with jurors. Such commuication is specifically governed by Mass. R. Prof. C. 3.5(c). The revised rule now permits lawyers to contact jurors after their discharge without first securing leave of court (as was previously required by the old rule) so long as (i) the communication is not otherwise prohibited by law or court order, (ii) the juror has not made known to the lawyer (directly or otherwise) a desire not to communicate with the lawyer, and (iii) the communication involves no misrepresentation, coercion, duress or harassment.

In a recent case – Commonwealth v. Moore – the Supreme Judicial Court considered the application of the new rule. The SJC specifically responded to five questions reported by a Superior Court judge concerning the effect of the 2015 amendment to Rule 3.5(c), and whether it overruled certain holdings from prior case law governing the issue of post-trial communications with jurors, names Commonwealth v. Fidler, 377 Mass. 192 (1979). In Fidler, the SJC specifically announced the rule that required all “post-verdict contact with and interviews of jurors by attorneys to occur under court supervision and direction, and to be permissible ‘only if the court [were to find] some suggestion that there were extraneous matters in the jury’s deliberations…. [C]ounsel, litigants, and those acting for them [were prohibited from] independently contact[ing] jurors after a verdict [was] rendered.”

The facts of Moore are as follows: the defendant had a trial by jury in 2012 and was convicted of four offenses, including first-degree murder.  During the course of the trial, issues regarding possible exposure of the jurors to extraneous influences arose. In 2015, two weeks after the effective date of the amendment to Rule 3.5(c), Moore’s appellate attorney communicated by mail with the jurors who had deliberated at Moore’s trial. “[T]he Commonwealth [then] filed an emergency motion for judicial intervention to prohibit post-conviction inquiry of the jury.” After a hearing, the judge reported to the Appeals Court the five questions at issue here.

The five reported questions and the SJC’s responses to them were as follows. Question 1: “‘In revising Rule 3.5 of the Massachusetts Rules of Professional Conduct to permit attorney originated communications with discharged jurors, did the Supreme Judicial Court implicitly overrule the prohibition against attorney originated communications with jurors as set forth in Commonwealth v. Fidler, 377 Mass. 192, 203-204 (1979)?’” SJC’s response: “[W]e answer the first reported question in the affirmative: by adopting rule 3.5 (c), we effectively overruled our rule, first stated in Fidler, that prohibited attorney-initiated, post-verdict contact of and communications with jurors free from court oversight…. To the extent that the Fidler rule operated to define a manner of contact and communication with jurors post-verdict that was ‘prohibited by law’ before the adoption of rule 3.5 (c), the latter effectively superseded the Fidler rule and the prohibition against unsupervised, post-verdict attorney communication that the Fidler rule had imposed. This is not to say, however, that rule 3.5 (c) implicitly overruled this court’s opinion in Fidler in its entirety, a point that leads us to the second reported question.” Continue reading →

The Supreme Judicial Court recently issued a decision – Commonwealth v. Beal – striking down a portion of the Armed Career Criminal Act  (ACCA).  The ACCA allows for sentencing enhancements for a defendant charged with possession of a firearm under G. L. c. 269, § 10(a), 10(c), or 10(h) if the defendant has previously been convicted of two (1) violent crimes; or (2) drug distribution crimes. A first time violation under the Act carries a minimum mandatory sentence of three years.  A second time violation carries a minimum mandatory sentence of ten years.  A third time violation carries a minimum mandatory sentence of fifteen years.  The SJC’s decision specficially addresses what constitutes a violent crime under the statute.

The facts of the case were as follows: the defendant initially fired two gunshots at a group of people standing on the porch of a house. Two of those people, brothers Joao and Ovidio Pereira, “ran to the back of the house with the defendant chasing after them…. They [then] ran back to the front porch where the defendant … fired several more shots at them. One bullet struck Joao in the lower back,” rendering him “unable to walk without the use of crutches and braces on his legs.” The defendant was convicted of unlawful possession of a firearm; carrying a loaded firearm; unlawful possession of ammunition; assault and battery by means of a dangerous weapon causing serious bodily injury to Joao; and assault by means of a dangerous weapon against Joao and, in a separate count, against Ovidio.  “The indictments charging unlawful possession of a firearm also alleged that the defendant previously had been convicted of two violent crimes and thus was subject to enhanced penalties” under the ACCA.  In a separate trial regarding that matter, the defendant was found guilty on the basis of certified copies of convictions “of assault and battery upon a public employee and assault and battery.” On appeal, the defendant argued that the Commonwealth had failed to establish that both prior offenses constituted ‘violent crimes’ within the meaning of the Act.

In its decision, the SJC noted that under the ACCA, “a ‘violent crime’ is [as defined in G.L. c.140, §121] ‘any crime punishable by imprisonment for a term exceeding one year … that: (i) has as an element the use, attempted use or threatened use of physical force or a deadly weapon against the person of another [force clause]; (ii) is burglary, extortion, arson or kidnapping; (iii) involves the use of explosives; or (iv) otherwise involves conduct that presents a serious risk of physical injury to another [residual clause].’” The Court further noted that the Massachusetts ACCA was essentially similar to the Federal ACCA, whose residual clause had recently been struck down, in Johnson v. United States, 135 S.Ct. 2551 (2015), as unconstitutionally vague. The SJC followed suit, striking down the residual clause of the Massachusetts ACCA as unconstitutionally vague. Continue reading →

Earlier this month, the Supreme Judicial Court issued a decision in Commonwealth v. Hartfield, which addressed a defendant’s Sixth Amendment  confrontation right and right to call witnesses at a probation violation hearing.

The background of the case is as follows: Hartfield was on probation for a drug offense when a probation violation issued alleging that he had violated the conditions of his probation by sexually assaulting his girlfriend’s seventeen year old daughter. The girlfriend provided an alibi for Hartfield and “added that the alleged victim was known to lie.” Hartfield told the police “that he had not gotten along with the alleged victim since he found some embarrassing photographs on her cellular telephone and confronted her with the photographs…. The mother also told the police about the cellular telephone incident and the alleged victim’s antagonism toward [Hartfield]. The alleged victim described” that antagonism before the grand jury. At the probation violation hearing, the judge heard testimony from a probation officer and police detective Figueroa. “Over [Hartfield’s] objection, the judge … admitted in evidence [through Figueroa’s testimony] the alleged victim’s testimony before the grand jury, two serology reports, and a [damaging DNA] report from the … police crime laboratory. The reports were admitted through … Figueroa; no criminalist testified.” “After the probation department rested, [Hartfield] sought to call the alleged victim as a witness…. The judge initially allowed her to testify,” but then changed his mind, reasoning that her statements to the grand jury had already been admitted as hearsay through Figueroa and that “‘she shouldn’t have to go through recounting this event several times.’” The judge proceeded to find that Hartfield had violated his probation by committing a new offense and specifically noted that Figueroa’s testimony and the DNA evidence was “the most compelling” evidence to support the finding of a violation.

On appeal, Hartfield argued (1) that by barring “his examination of the alleged victim, the hearing judge violated his due process right to present a defense;” and (2) “that the admission of the alleged victim’s grand jury testimony and the serology and DNA reports … violated his due process right to confront adverse witnesses.” Continue reading →

According to an article in the MetroWest Daily News, the Senate recently passed its version of the 2017 budget, which includes an amendment that will significantly impact the way that court fees are imposed on defendants in criminal cases. As the law currently stands, Massachusetts judges are required to assess various fees when certain criminal cases are resolved. Specifically, if a defendant is placed on any sort of probation, the court assesses a probation supervision fee of $65/month. Additionally, the court assesses a victim witness fee of $50 in misdemeanor cases, and $90 in felony cases. These fees are assessed regardless of the defendant’s financial situation.

Under the proposed amendment, Massachusetts judges would have new discretion over whether to impose fees on probationers. This amendment was adopted under a budget rider by the Senate in a 31-7 vote this past Thursday. The sponsor of the amendment, Senator William Brownsberger, who is co-chairman of the Judiciary Committee, stated that he sponsored the amendment because “we need to make it possible for people to get back on their feet, get out of the system, start living their normal life.” Sen. Brownsberger said judges now can waive probation fees if they make a “written finding of hardships,” and the language adopted by the Senate would “make it clear that it’s up to the judge.” The amendment also prohibits a court from finding that a probationer violated a condition of probation based solely upon failure to pay such fees or surcharges, and extending probation or incarcerating a probationer for such failure to pay.

In his statement, Sen. Brownsberger stated that the roughly $20 million in probation fees collected by Massachusetts courts goes into the general fund and judges should not be concerning themselves with revenue collection. He referenced the controversial reliance on court fees in Ferguson, Missouri, stating “this isn’t quite Ferguson where the courts were living and dying on how much in fees they could collect, but there is pressure on the judges of a financial nature to collect these fees.” He went on to state that “that pressure shouldn’t be there. This should be based on criminal justice policy as opposed to revenue-raising considerations.” Continue reading →

The Massachusetts legislature has been very busy the last few weeks and many of the issues they have acted on are pertinent to criminal law. Since the beginning of March, several bills have made their way through the legislative process. Most are of the bills are still en route to enactment, but some have made it to the Governor’s desk.  Below is a list of bills that have made progress:

Opioid Act: This act was signed by the Governor on March 14, 2016 and goes into effect on July 1, 2016. The Act mandates that individuals presenting in the emergency room or a satellite emergency facility suffering from an apparent opiate overdose will receive, prior to discharge and within 24 hours of presenting in the ED, a substance abuse evaluation. The Act further ensures insurance coverage for the substance abuse evaluation. After the evaluation, the patient may consent to further treatment and the treatment may occur within the hospital if the service is available. If treatment is not available in the hospital, the hospital must refer the patient to another treatment center.

License Suspension: This legislation was signed by the Governor on March 30, 2016 and goes into effect immediately. The Act eliminates the suspension of a person’s driver’s license following a conviction for most drug related offenses (the Act maintain suspension of a person’s driver’s license if he or she is convicted of trafficking of a Class B controlled substance, morphine/opium, or fentanyl, but states that such a suspension shall not exceed five years from the date of conviction, and a person may apply for a hardship license once his or her sentence of incarceration is completed).

Larceny: The Senate endorsed legislation that would raise the felony crime of larceny threshold from $250 to $1,500 on March 14, 2016 (any theft below the new $1,500 threshold would constitute a misdemeanor offense).  The bill was then sent to the House and is currently pending in the House Committee on Ways & Means.  When the Committee releases the bill, it will be taken up by the House and continue to make its way through the process.

Parent-Child Privilege: This legislation proposes a privilege that would prevent parents from being forced to testify against their children.  The bill was reported favorably by the Joint Committee on the Judiciary and ordered to a 3rd reading by the House of Representatives on March 24, 2016, which is an important first step on the road to enactment.  From the House Committee on Bills in Third Reading, the bill will be acted on by the House and then make its way to the Senate.

The bill itself prevents parents from being forced to testify against their children and in doing so affords children the same protections guaranteed to others against self-incrimination.  The bill allows an exception to this protection when a victim is a family member who resides in the same household, but protects communication even in such an instance if it is relative to advice on legal rights and decision-making.  The bill also redefines “parent” to meet the complex and varied family situations that are part of today’s society.  Continue reading →

A recent article in The Boston Globe acknowledges the myriad of collateral consequences that can arise as a result of having a criminal record. The article specifically focuses on the difficulties individuals with criminal records have entering the work force. The article states that there are many employers who decline to hire people with misdemeanor or felony convictions, and discusses the fact that, while a criminal record can be sealed, the process has historically been a lengthy one – until recently.

According to the article, the Massachusetts Probation Service has “reconfigured its workforce to reduce the time it takes to seal a record from more than three months to just a few days.” The article states that the goal of these changes “is to give people more access to employment on short notice” because “jobs don’t wait around.”

In 2012, Massachusetts implemented CORI reform that allowed people to petition to seal their criminal records five years after a misdemeanor conviction and 10 years after a felony (a significant reduction from the previous state of the law, which required people to wait ten years before petitioning to seal a misdemeanor conviction and fifteen years to petition to seal a felony). The change led to a sixty percent increase in the number of people petitioning to have their records sealed. This resulted in a substantial increase in the length of time it took for the sealing process to be completed. Continue reading →

In an upcoming case, Commonwealth v. Laltaprasad, the Supreme Judicial Court will hear oral argument on the question of whether a trial court judge has discretion to impose a sentence below the mandatory minimums prescribed by G. L. c. 94C, §§ 32(b) and 32A(d), pursuant to G. L. c. 211E, § 3(e).  G. L. c. 94C, §§ 32(b) and 32A(d) each set forth a three and a half-year mandatory minimum sentence for second and subsequent offenses of distributing or possessing with intent to distribute class A and class B drugs. G. L. c. 211E, § 3(e) states that except for murder, a “sentencing judge may . . . impose a sentence below any mandatory minimum term prescribed by statute . . . based on a finding that there exists one or more mitigating circumstances that should result in a sentence . . . below any applicable mandatory minimum term.”

In Mr. Laltaprasad’s case, the trial court judge found such mitigating circumstances – the judge specifically noted the small quantity of drugs involved and Mr. Laltaprasad’s serious medical condition – and found that these circumstances justified a departure below the mandatory minimums. The judge then imposed a sentence of 2 ½ years to the house of correction, citing to G. L. c. 211E, § 3(e) as her authority to do so. The Commonwealth filed a petition for the Supreme Judicial Court to review the trial court judge’s decision and challenging the legality of the sentence.

In his response to the Commonwealth’s petition, Laltaprasad’s attorneys argue that the plain language of G. L. c. 211E, § 3(e) clearly gives judges authority to impose a below-minimum sentence. Alternatively, Laltaprasad argues that even if the statute is deemed to be ambiguous, consideration of the legislative intent and application of both the rule of lenity (interpreting an ambiguous criminal statute in favor of the defendant) and the doctrine of constitutional avoidance (construing a statute to avoid constitutional problems arising from an alternative construction) should lead to that same interpretation.

The Middlesex District Attorney’s office argues that pursuant to G.L. c. 211E, § 3(a)(1), as interpreted by the SJC in a case decided twenty-two years ago, the authority to impose a sentence below a mandatory minimum does not go into effect until the Legislature enacts into law the sentencing guidelines recommended by the Sentencing Commission. Because those guidelines have not been enacted, the Middlesex DA argues, judges still lack authority to impose a below-mandatory minimum sentence.      Continue reading →