§ 3 — Recommended sentencing guidelines

Section 3. (a) (1) The commission, by affirmative vote of at least six members of the commission and consistent with all pertinent provisions of this chapter and existing law, shall recommend sentencing guidelines, which shall take effect only if enacted into law.(2) The sentencing guidelines shall be used by the district and superior courts of the commonwealth, and the Boston municipal court, in imposing a sentence in every criminal case. Said sentence shall not be suspended in whole or in part. The sentencing judge shall impose a sentence within a range prescribed by the sentencing guidelines for every offense, unless the sentencing judge sets forth in writing reasons for departing from that range, on a sentencing statement as set forth in paragraph (h), based on a finding that there exists one or more aggravating or mitigating circumstances that should result in a sentence different from the one otherwise prescribed by the guidelines. The commission shall establish non-exclusive aggravating and mitigating circumstances to guide the sentencing judge, as set forth in paragraph (d). In the absence of an applicable sentencing guideline the court shall impose an appropriate sentence, having due regard for the purposes set forth in section two.(3) The sentencing guidelines shall be based on reasonable offense characteristics, taking into account the nature and seriousness of each offense, and reasonable offender characteristics taking into account the offender's character, background, amenability to correction, and criminal history and the availability of the commonwealth's criminal justice and public safety resources.For every criminal offense under the laws of the commonwealth, the guidelines shall establish:(A) The circumstances, if any, under which the imposition of intermediate sanctions may be proper, and the circumstances under which imprisonment may be proper.(B) Appropriate intermediate sanctions for offenders for whom imprisonment may not be necessary or appropriate. In establishing such intermediate sanctions, the commission shall make specific reference to non-institutional sanctions, including but not limited to: standard probation, intensive supervision probation, community service, home confinement, weekend jail sentences, day reporting, residential programming, substance abuse treatment, restitution, means-based fines, continuing education, including but not limited to the ''Changing Lives Through Literature'' program administered by the trial court and the University of Massachusetts at Dartmouth, vocational training, special education, and psychological counseling; provided, however, that in no event shall a state employee be replaced by an offender serving an intermediate sanction.(C) A target sentence for offenders for whom an intermediate sanction may not be appropriate based on a combination of reasonable offense and offender characteristics for each offense, and the adequacy of the commonwealth's criminal justice and public safety resources. The guidelines shall provide that, for each target sentence, the sentencing judge may impose a maximum sentence within a range to be established by the commission for each offense, and a minimum sentence of two-thirds of the maximum sentence; provided, however, that for target sentences of two years or greater the range may not be greater than twenty percent greater or less than the target sentence; and provided, further, that for target sentences of less than two years, the sentencing judge may impose an intermediate sanction. Within that range, the sentencing court may impose any sentence without stating its reasons therefor.The commission shall act consistent with the need for flexibility, expeditious administration, case-flow management and resources of the trial court departments in sentencing guidelines.(D) The circumstances, which shall not be considered exclusive, under which a sentencing judge may depart upward or downward from the range otherwise prescribed by the guidelines.(E) The circumstances, if any, under which substance abuse treatment may be mandated, and the circumstances under which substance abuse treatment may be offered to an offender for voluntary participation.(b) The commission shall adopt, in conjunction with the sentencing guidelines, general policy statements, which shall be used in interpreting the guidelines.(c) In its development of the sentencing guidelines, the commission shall not be bound by any existing mandatory maximum or minimum term prescribed by statute and may recommend target sentences that exceed existing mandatory maximum terms or that fall below existing mandatory minimum terms. The commission shall conduct an empirical study in order to ascertain, to the extent practical, a survey of those individuals appearing before the commonwealth's criminal courts, and those committed to probation, prison and jail. It should also include the average sentences imposed for all offenses prior to the promulgation by the commission of the sentencing guidelines, and the length of prison terms actually served in such cases. The commission shall not be bound by such average sentences, and shall independently develop a sentencing range that is consistent with the purposes of sentencing described in section two; provided, however, that the commission shall assure that the target sentences established for each offense shall not be higher than the averages determined herein solely because of the discontinuation of sentence reductions for good conduct. The commission shall promulgate guidelines regarding participation in work release, education, training, employment or treatment programs outside correctional facilities. The commission shall utilize this data and develop any other data it deems necessary in order to assess the impact of the sentencing guidelines and carry out the purposes set forth in said section two.(d) In establishing non-exclusive aggravating and mitigating circumstances pursuant to subparagraph (2) of paragraph (a), the commission shall determine whether the following kinds of factors, among others, are relevant, and shall take such factors into account only to the extent that it deems to be relevant:(1) factors that describe the nature and circumstances of the offense;(2) factors that describe the offender's mental state at the time of the offense;(3) factors that describe the relationship, if any, between the offender and victim;(4) factors that describe the nature and degree of the harm caused by the offense;(5) the community view of the gravity of the offense;(6) the public concern generated by the offense;(7) the deterrent effect a particular sentence may have on the commission of the offense by others;(8) the current incidence of the offense in the community and in the commonwealth as a whole;(9) the role in the offense of each offender in cases involving multiple offenders;(10) the age of the offender;(11) the mental and emotional condition of the offender, to the extent that such condition mitigates the defendant's culpability or to the extent that such condition is otherwise plainly relevant;(12) the offender's physical condition, including drug dependence;(13) the offender's family ties and responsibilities;(14) the offender's community ties;(15) the offender's degree of dependence upon criminal activity for a livelihood;(16) the offender's character and personal history; and(17) the offender's amenability to correction, treatment, or supervision.(e) Except for the crimes set forth in section one of chapter two hundred and sixty-five, the sentencing judge may depart from the range established by the sentencing guidelines and impose a sentence below any mandatory minimum term prescribed by statute, if the judge sets forth in writing reasons for departing from that range on a sentencing statement as set forth in paragraph (h) of this section, based on a finding that there exists one or more mitigating circumstances that should result in a sentence different from the one otherwise prescribed by the guidelines and below any applicable mandatory minimum term.The commission shall assure that the guidelines are neutral as to the race, sex, national origin, creed, religion and socio-economic status of offenders.(f) The commission periodically shall assess the impact of the sentencing guidelines in order to determine the type and amount of correctional resources needed. In particular, the commission shall examine the impact of said guidelines on intermediate sanctions and correctional institutions and may consult with all appropriate authorities for this purpose. Beginning in the year after the sentencing guidelines become law, but no later than May first, the following persons shall submit comments and recommendations to the commission regarding the implementation and impact of the sentencing guidelines: The governor's chief legal counsel, the commissioner of probation; the chairman of the parole board; every district attorney; the chief counsel of the committee for public counsel services; the commissioner of corrections; the chief justices of the superior court, district court, and Boston municipal court; the attorney general; and the Massachusetts Association of Criminal Defense Attorneys.(g) Beginning in the calendar year following the effective date of the sentencing guidelines, the commission, at or after the beginning of a regular session of the legislature, but not later than the first day of October, may submit to the legislature proposed amendments to the sentencing guidelines. Such amendments shall be accompanied by a report stating the reasons therefor. The amendments to the guidelines shall take effect only if enacted into law.(h) The chief justice of the trial court, in consultation with the sentencing commission, shall promulgate the form of a sentencing statement, conforming to the sentencing guidelines, which shall be used by the sentencing judge in the application of the guidelines when imposing a sentence. The sentencing judge shall complete the statement for every sentence imposed. If the sentencing judge imposes a sentence that departs from the range established by the guidelines, he shall, in the sentencing statement, give the facts, circumstances, evidence, opinions and any other matters considered by him to support the mitigating circumstances justifying the imposition of a sentence different from the one otherwise prescribed by the guidelines or below any applicable mandatory minimum term. One copy of the sentencing statement shall be forwarded by the court to the commission, which shall be used by the commission to submit to the legislature, at least annually, an analysis of sentencing patterns under the guidelines.(i) Any inmate sentenced to a state or county correctional facility prior to the effective date of any sentencing guidelines enacted into law shall be subject to the law, regulation and rules governing the issuance of parole and the supervision of parole at the time the offense was committed.(j) A person sentenced to a term of imprisonment as prescribed by any sentencing guidelines enacted into law may be eligible for parole after serving the minimum sentence imposed, less credit for deductions for good conduct earned under section one hundred and twenty-nine D of chapter one hundred and twenty-seven.(k) The commission shall provide a public hearing and opportunity for public comment on its sentencing guidelines prior to submitting said guidelines to the legislature.