AuditReview of Chapter 211E of the Massachusetts General Laws

This is a state performance audit of the Massachusetts Sentencing Commission covering July 1, 2017 through June 30, 2018.

“In accordance with Section 12 of Chapter 11 of the Massachusetts General Laws, the Office of the State Auditor has conducted a performance audit of the Massachusetts Sentencing Commission (MSC) for the period July 1, 2017 through June 30, 2018.”

The audit was started after district attorneys raised concerns that new sentencing guidelines had not been sent to lawmakers but were still being used in courts.

“Members of MDAA alleged, among other things, that the guidelines were never submitted to the state Legislature for enactment into law but were used in the court system.”

Sentencing guidelines can only have legal force if the Legislature passes them into law.

“As a result, these guidelines do not have the force and effect of law.”

For ordinary citizens, this matters because sentencing rules affect how criminal penalties are decided, and the audit says the updated guidelines were not legally enacted.

“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.”

The commission approved new guidelines, but the auditor found they were not sent to the Legislature for enactment.

“Although the primary purpose of the Massachusetts Sentencing Commission (MSC) is to develop sentencing guidelines to submit to the state Legislature for enactment into law, it has not submitted its latest guidelines, which it approved on August 16, 2017, to the Legislature.”

The auditor recommended changing state law to set clear deadlines for when the commission must send approved guideline changes to the Legislature.

“MSC should work with the Legislature and others as necessary on an amendment to Chapter 211E of the General Laws that establishes specific timelines by which MSC must submit any guideline revisions it approves to the Legislature.”

The report raises a separation-of-process concern: sentencing guidance was available and used by some judges even though the auditor says it had not been enacted into law.

“Of the 259 judges who received the survey, 149 responded.”

“Advisory capacity” means judges and court officials may look at the guidelines for guidance, but the audit does not say they have the force of law.

“During our interviews with the current and former MSC chairs, both chairs confirmed that the revised guidelines were used in the court system, but only in an advisory capacity.”