Includes Commentary from Attorney Vikas Dhar, Partner and Chair of the Litigation Practice at Dhar Law LLP
By Wassem M. Amin
Signed into law on August 3, 2012 by Massachusetts Governor Deval Patrick, the so-called Three-Strikes Bill, also known as Melissa’s Bill, is the most significant overhaul of criminal sentencing law in recent memory.
The controversial law has been heavily criticized by several legal experts, reflected Dhar Law, LLP partner Vikas S. Dhar.
“The new Massachusetts ‘Three-Strikes’ legislation recently passed affects a number of areas of sentencing law. These changes will undoubtedly cost taxpayers millions of dollars by unnecessarily incarcerating an overwhelming number of low-level, low-risk offenders, and will draw state funds that could otherwise be applied to much needed areas of education and job creation.”
Concerned about the law’s potentially disparate impact, Dhar stressed that
“ethnic communities will suffer the most from these changes in sentencing practice, as evidenced from other states with similar sentencing provisions, such as California.”
California has been the poster child for three-strikes legislation. However, as Dhar notes,
“California has already recognized that its stringent sentencing policies, without allowing for the appropriate judicial discretion, haven’t served as the most effective tool for crime prevention, and it’s regretful that Massachusetts has passed similar legislation. In fact, the Massachusetts legislation includes an even higher number of crimes than California does that can be considered as a ‘strike’.”
The law, enumerated in M.G.L ch. 279, §25(b), lists over forty crimes with varying aggravating factors under which a third conviction for repeat offenders will result in the imposition of a mandatory maximum sentence. Despite some inaccurate media reports, the law does not impose a mandatory life sentence on all crimes within that list. A life sentence without eligibility for parole is only imposed if a defendant’s third crime is one which carried the possibility of a life sentence. A conviction of any three crimes under the statute, whether the same or different, will count towards the “three strikes.”
Although the three-strikes mandatory sentencing provision has been the focus of most of the media’s attention, the bill impacts several other areas of sentencing law, including changes to the: (i) School-Zone drug possession statutes, (ii) DNA evidence and sample rules, (iii) Good Samaritan statute, (iv) enhanced penalties for habitual violent-felony offenders, (iv) prison-release credits, and (v) parole eligibility. Surprisingly, many of those additional changes, specifically within the drug possession statutes, actually lowered the minimum sentence required.
How does this impact parole eligibility?
The new legislation does not do away the Commonwealth’s prior habitual offender law. Under that statute, habitual offenders convicted of three felonies not enumerated within the new list of 41 crimes are still eligible for parole. However, under the new law, in order to be eligible for parole, those offenders must now serve two-thirds of their maximum sentence, instead of the previous requirement of one-half.
Under M.G.L ch. 279, §25(b), habitual offenders convicted under the law’s forty-one crimes are not eligible for parole until the expiration of the maximum punishment for their third crime. Incarceration for each crime is served consecutively, and not concurrently. Most importantly, if the defendant’s third conviction was a crime which carries a possibility of a life sentence, and the prior two convictions where within §25(b), that offender will never be eligible for parole.
Which felonies are within the mandatory no-parole provision?
At the outset, it is important to note that crimes for which a defendant was convicted for as a juvenile or youthful offender do not count towards the “three strikes.” Under §25(b), habitual offenders convicted of three separate convictions of crimes listed therein, or similar crimes under federal or state law, for which each resulted in a separate sentence of three or more years, will not be eligible for parole.
The complete list of crimes for which a third conviction results in no parole eligibility can be found in the House Committee Report. In a nutshell, the crimes within the law are: Murder, Manslaughter, Vehicular Manslaughter, Assault and Battery causing serious bodily injury or with the intent to murder or with a weapon, indecent assault on a child, mayhem, Attempted Murder, Armed Robbery, Armed Assault in a Dwelling, Commission of a Felony with a Firearm, Home Invasion, Rape, Kidnapping, Poisoning, Armed Burglary, Incest, Inducing or Engaging a Minor into Prostitution, Child Sex Crimes, and Biological, Chemical or Nuclear Weapon Possession or Creation.
As noted, this is only a partial list and does not include the various aggravating factors within each crime.
Provisions for Relief and Review
Recognizing the potentially harsh consequences of a “three strikes” provision, the new law allows habitual offenders convictions within §25(b) to be petitioned for direct review with the Supreme Judicial Court (“SJC”). The law grants the SJC the discretion to order a new trial or to reduce the verdict. If the SJC determines that a verdict of a third offender is to be reduced, it would take it completely out of the habitual offender statute.
The Charles Hamilton Houston Institute for Race & Justice at Harvard Law School has compiled a comprehensive report on the impact of this new law.
Disclaimer: The above information should not be construed as legal advice. As always, in order to properly ascertain how this new legislation may impact individual cases, you must contact a skilled and knowledgeable defense attorney.
To find out more, visit Dhar Law’s website or call (617) 880-6155.