Massachusetts District Attorneys Association the massachusetts prosecutors’ manual: domestic violence & sexual assault

8.3. SENTENCING OPTIONS

8.3.1. Consider All Options

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  Fines
  

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  Probation
  

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  Probation with Conditions (discussed below)
  

-- Certified Batterers Intervention Programs (discussed below)

-- Alcohol/Drug Treatment

A judge has the authority to impose as a condition of probation that a defendant abstain from using alcohol – even if alcohol was not involved in the underlying criminal offense – it is enough that the underlying offense involved volatile and impulsive behavior. Commonwealth v. Williams, 60 Mass. App. Ct. 331 (2004).
-- Restitution

e.g. medical bills, damaged property, counseling costs, lock replacement, lodging and/or transportation costs incurred in attempting to escape the violence

-- Stay Away/ No Contact Orders

-- Other Individualized/Inventive Conditions, e.g., curfews

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  Split Sentence to House of Corrections
  

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  Straight Incarceration
  

-- House of Correction

-- State Prison

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  Alternative Sentencing
  

-- Halfway House

-- Work Furlough Program

-- House Arrest (“Home Confinement”)

-- Electronic Monitoring

-- Day Reporting Center
Or a combination of these options.

8.3.2. Probation with Conditions in Domestic Violence Cases

When Superior Court Judge Peter Agnes sat in Chelsea District Court, he suggested a detailed protocol, with an increased role on the part of the court, when a defendant requested probation in a domestic violence case. Judge Agnes had the defendant submit a written application detailing why he should receive probation. The victim was then asked to submit a supplement to the victim impact statement, detailing her feelings about a probationary sentence for the defendant, and what specific conditions would best insure her safety. Then the judge initiated a “10 Step Protocol” involving a clinical evaluation of the defendant. If the judge found probation to be acceptable sentence, a 20-point probation contract was written, and the defendant had to sign this contract in open court, in the presence of his attorney, the ADA, the judge, and the probation officer.
The purpose of the signing in open court and the involvement of all of the parties is to avoid ambiguity and insure that all parties are on notice of the specific probationary terms. It also makes a probation surrender less difficult than it can be when a probation contract is hard to read and interpret because it has been quickly scribbled by the probation officer, by hand.
Keep in mind that only a judge, and not a probation officer, has the authority to impose conditions of probation. Commonwealth v. Lally, 55 Mass. App. Ct. 601 (2002). A judge also has the authority to impose as a condition of probation that a defendant abstain from using alcohol – even if alcohol was not involved in the underlying criminal offense – it is enough that the underlying offense involved volatile and impulsive behavior. Commonwealth v. Williams, 60 Mass. App. Ct. 331 (2004).

8.3.3.Batterers’ Intervention Programs

St. 1990, ch. 403 § 16 set up a commission to develop “guidelines and standards for the certification of batterers’ treatment programs by the Department of Public Health.” The commission was chaired by District Court Department Justice Austin T. Philbin and completed its work of establishing standards in July, 1991. In 1995, after three years of experience with implementation of the guidelines, the Department revised the guidelines after extensive input from providers and interested members of the public and private sectors working on domestic violence issues. For more information on the guidelines, or to obtain a copy, go to http://www.mass.gov/dph/fch/bi/guidelines.htm.
The Department of Public Health has used these guidelines to certify and monitor batterers’ treatment programs. The standards are the minimum to which a program must adhere in order to receive court-referred clients.
According to the guidelines:

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  The methodology of the batterers intervention programs “shall primarily consist of group sessions whose purpose is to educate the perpetrator. The goals of the education and treatment program shall be the cessation of coercive, dominating and violent behavior, and the safety of the victim and the children.” Mass. Dept. of Public Health, Massachusetts Guidelines and Standards for the Certification of Batterers’ Treatment Programs, Section 4.0.
  

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  Groups are to provide ample opportunity for participation in discussions;
  

The suggested maximum size is 15 participants;

The program has the responsibility to evaluate whether any client should be required to engage in drug and alcohol, mental health, or other treatment services while the individual is a participant in the program; and

The program has the responsibility to impose any reasonable conditions on participation that it deems appropriate. Id. The program may even impose the condition that the defendant write a letter detailing his abusive behavior, which the SJC has held does not implicate the Fifth Amendment right against self-incrimination. Commonwealth v. Delisle, 440 Mass. 137 (2003).

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  The educational components of the curriculum are set forth: identification, confrontation and change of abusive and controlling behaviors to victims; identification and discussion of the effects of violence and abuse on victims; confrontation of excuses for abuse; identification and practice of cooperative and non-abusive forms of communication; identification of cultural and social influences that contribute to abusive behavior without allowing these issues to excuse or justify individual responsibility for abuse. Id., Section 4.2.
  

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  Couples counseling is deemed “inappropriate initially and may be used only after the cessation of violence and coercion for at least nine months, and when the victim is not fearful of the perpetrator.” Id., Section 4.5 (emphasis added).
  

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  “Theories which in any way bring the victim into the circle of responsibility for the batterer’s behavior or diminish the batterer’s responsibility for the violence are inappropriate.” Id., Section 4.6 (emphasis added).
  

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  Programs are required to have “clearly defined discharge criteria incorporated in the agreement signed by the perpetrator and the program at the intake process” -- including completion of the program, acceptance of responsibility for violent behavior, completion of any other allied, required program, and payment of any financial obligation for the treatment. Id., Section 5.1.
  

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  If the perpetrator is terminated from the program prior to completion, the sentencing court shall be notified and the victim shall be notified. Id., Section 5.4.
  

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  Detailed requirements and educational standards are set forth for the program’s staff . Id., Sections 6.0 and 6.1.
  

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  For the differences between Anger Management and Certified Batterer Intervention Programs, see appendix section 9.7.2.
  

8.3.4. Lifetime Parole Supervision for Sexual Offenders

Until the September 14, 2005 case of Commonwealth v. Pagan, 445 Mass. 161 (2005), sex offenders who committed qualifying sex offenses could be placed on Community Parole Supervision for Life (“lifetime parole”). Following Pagan, only repeat sex offenders who are indicted as such may be placed on lifetime parole. Id. at 170.

The sex offender must have committed or attempted to commit an enumerated sex offense, such as indecent assault and battery under 14 or rape, and have a prior conviction for a sex offense. Mass. Gen. Laws ch. 265, § 45. The most recent sex offense must have been committed on or after September 10, 1999, the effective date of the statute. Commonwealth v. Talbot, 444 Mass. 586, 597 (2005). The sex offender must be indicted as a repeat offender⁵ in order for lifetime parole to be imposed. Pagan, 445 Mass. at 168-70. Once the sex offender has been convicted as a repeat offender, the imposition of lifetime parole is mandatory. Mass. Gen. Laws ch. 265, § 45.
A sex offender on lifetime parole is subject to the jurisdiction of the Parole Board like any other parolee for the duration of his natural life, unless his parole is terminated by the Parole Board. The Parole Board sets conditions which shall include, but not be limited to, sex offender treatment, complying with sex offender registry requirements and a supervision fee. If a lifetime parolee violates the terms and conditions of his parole before his original sentence expires, the Board may vote to revoke his parole and return him to prison like any other parolee. If a lifetime parolee violates the terms and conditions of his parole after his original sentence has expired, the Board may vote to revoke his parole and return him to the House of Correction for 30 days for the first violation, 180 days for the second violation, and one year for the third and subsequent violations. Mass. Gen. Laws ch. 127, § 133D.
Lifetime parole takes effect immediately upon either the expiration of the offender’s term of imprisonment, termination of probation supervision or discharge from civil commitment pursuant to Mass. Gen. Laws ch. 123A, § 9, whichever occurs first. Mass. Gen. Laws ch. 265, § 45.
Prior to Pagan, sex offenders eligible for lifetime parole could be broken down into three groups, based on the current conviction and the individual’s prior record of sex offenses. Mass. Gen. Laws ch. 265, § 45; ch. 275, § 18. In addition to the repeat offenders discussed above (which is the only category left after Pagan), two additional groups of sex offenders were eligible for lifetime parole.

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  The first group consisted of offenders who committed or attempted to commit indecent assault and battery under or over 14 or on a mentally retarded person. Lifetime parole could only be imposed if the District Attorney filed a motion requesting lifetime parole after conviction but before sentencing, and the court held a hearing to determine whether lifetime parole should be imposed. Commonwealth v. Renderos, 440 Mass. 422 (2003). At that hearing, the standard of proof was clear and convincing evidence and the court was required to consider certain evidence. The defendant had certain rights at that hearing as well. Mass. Gen. Laws ch. 275, § 18. The Pagan court found the statute unconstitutionally vague as applied to this first group of offenders. 445 Mass. at 166, 171-73.
  

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  The second group consisted of offenders who had committed or attempted to commit more serious sex offenses such as rape, rape of child and assault with intent to rape. Mass. Gen. Laws ch. 265, § 45; ch. 275, § 18. Lifetime parole was mandatory unless the offender filed a motion requesting a hearing based on mitigating circumstances and the judge determined that no reasons existed for the imposition of lifetime parole, or unless the prosecutor filed a motion requesting that lifetime parole not be imposed.