Some local district attorneys are pulling out of the Massachusetts Sentencing Commission. Members of the state's District Attorney Association say the Commission is violating the separation of powers by delivering sentencing guidelines directly to judges instead of submitting them to the state legislature for approval first.
WGBH legal analyst and Northeastern University Law Professor Daniel Medwed spoke with WGBH All Things Considered host Arun Rath about what's happening with the Commission. This transcript has been edited for clarity.
Arun Rath: First off, I think many of us need a pretty basic explainer on this. Can you explain what the Sentencing Commission is, what it's supposed to do?
Daniel Medwed: Sure. About 25 years ago, we established the Massachusetts Sentencing Commission. It's an independent body that's technically housed within the judicial branch. And what it does is, it studies sentencing policies and makes recommendations to the legislature about how to revamp the laws. So basically, the legislature, of course, creates laws related to crimes and to potential sentencing exposure. So this body is more advisory than anything else. There are 15 members, nine of them are voting members, basically evenly divided between prosecutors, defense lawyers and judges.
Arun Rath: And what kind of real-world things are they reviewing and advising on? Are we talking about drug sentencing, violent crime, financial crime? What sort of stuff?
Medwed: All of those things. So as you can imagine, sentencing law is very disparate across the country. Some states are harsher than others. So the Commission basically analyzes all the data, talks with experts, looks at trends across the country, and occasionally will make recommendations to the legislature, or in this more recent kerfuffle, there have been issues about advisory guidelines that are given to judges that judges may or may not consult.
Rath: So this complaint, tell me if we're getting this right. The district attorneys who are on the Commission are complaining that the Commission is basically doing an end-run around the legislature by sending these recommendations directly to judges.
Medwed: Well, it's a little more nuanced than that. So there are two prosecutors who are on the Commission formally. Another is an assistant attorney general. But it's the Massachusetts District Attorneys Association that is upset. And that organization is not technically on the Commission, though there are some prosecutors on it.
They're upset about the following thing: According to the law, which governs the Sentencing Commission, the Commission is supposed to make recommendations to the legislature about sentencing. And the Commission, at least in the eyes of the District Attorney Association, has not been making those recommendations with tremendous alacrity over the years, and that instead, it has issued these advisory guidelines to judges, which you might think of as sort of soft law. They're not things that have been enacted by the legislature, but just sort of guideposts for judges to think about when they're crafting individual sentences. And the district attorneys feel as though these guidelines are acting or operating to their detriment. And they seem to be upset about it.
But it's sort of interesting because technically, they can't withdraw from a Commission they are not formally members of. It's more of a signal that they disapprove of what the Commission is doing.
Rath: And is there any weight to that complaint? Do they have examples of times where, say, they've wanted a particular sentence and a judge has said now these guidelines are suggesting otherwise?
Medwed: My understanding is, at least they've stated publicly, that oftentimes in the heat of battle, prosecutors will make recommendations about sentences that are rejected by judges who in turn are relying on these advisory guidelines from the Commission. So I assume they do have lots of examples of this. And the upshot, I think, is that the Association is discouraged about how the Sentencing Commission is operating. The judge, Judge Locke, who essentially heads the Commission, has pushed back a bit and said, we've been giving these advisory guidelines to judges for years, they're helpful, they're not mandatory, but we're happy to sort of reconsider our practices and think about how we can make recommendations to the legislature.
Rath: So, Daniel, do you think they have a point in this complaint? And is what they're doing going to make things better?
Medwed: The language of withdrawing from the Commission seems a little bit dramatic, but the point about the proper role of the Massachusetts Sentencing Commission, at least under the statute that enabled it, is an important issue and one we should analyze. Is the goal of this Commission to make legislative recommendations, or is the goal of the Commission to offer guidance to judges in a way that's short of actual legislation? And I think Judge Locke is correct in suggesting that we should just convene and think about this and reassess all of these practices.
Rath: And will the District Attorney Association suspending its participation have any effect, or will the Commission kind of shrug its shoulders and keep doing what it's doing?
Medwed: I think it could have a long-term effect in the sense that, it's my understanding that the Association plays a role in putting forth names of prosecutors who might become voting members of the Commission. So maybe it could lead to some changes in prosecutorial representation on the Commission. That's a direct consequence possibly that could occur if this battle or brouhaha lingers.
