Wakefield, MA Criminal Defense Attorney

William J. Barabino

Massachusetts Legislature Habitual Offender Laws

The Massachusetts Senate on Thursday, November 10, 2011, passed An Act Relative to Habitual Offenders, Sentencing and Improving Enforcement Tools. The bill is now headed to the Massachusetts House of Representatives for deliberation. This law---as written may sound inviting and comforting to the average law-abiding citizen. However, the real life consequences are not always positive. Often you may have factual circumstances in which the charges are weak, questionable or simply not true. Often you may have personal circumstances, which can mitigate or explain some elements of the Defendants background. For example, the Defendant is a veteran suffering from posttraumatic -stress disorder, or a young woman who is also mentally retarded. Those are not legal excuses for committing a crime---nor should they be. But most reasonable people would agree that those factors should be included in fashioning a punishment for a Defendant. When the court is bound by “minimum mandatory sentences” any factors in the persons life are not considered in sentencing. This is but a small footnote in the minimum
mandatory debate—however, other issues in the debate include the inherent cost of incarcerating inmates for years and decades and the public cost of supporting the families of incarcerated criminals.
The new bill, S.2059, which was amended on the Senate floor, remains a cause for grave concern. We expect that the House will be taking this legislation up within the next 48 hours.

Significant changes to the Massachusetts wiretap statute, enhanced criminal liability in DNA collection, expansion of the habitual offender law, mandatory post-release supervision and new standards of whom shall be eligible for parole and when were maintained.

Concerns that appeared in the original bill and were voted on favorably by the Senate include:

One of the harshest 3-Strikes laws in the country by enhancing our present habitual offender statute.
Increased number of years for parole eligibility for those serving life sentences from 15 to 25 years.
Mandatory post-release supervision, which will add nine months to two years to sentences and result in fewer grants of parole.
Wiretapping of anyone suspected of chapter 94C Controlled Substances offenses and all firearm offenses, except those lawfully permitted to possess or control a firearm, even if convicted of a felony. An amendment to the original bill provides for our wiretap statute to now mirror the federal law.
Expanded criminal liability for anyone who does not provide a DNA sample, when so ordered, by changing the standard from "refuses to provide a sample" to "fails to provide a sample."
Reduction in the school zone from 1,000 ft. to only 500 ft., which does little to offset the "urban penalty" paid by city residents.
Slight decrease in the mandatory minimum sentences for low-level nonviolent chapter 94C Controlled Substances offenses; an action that will not ease prison overcrowding, which is currently at 144% capacity.

Floor amendments of note include:

Requiring level 2 & 3 sex offenders to register at police stations in person within 2 days of release.
Requiring that any mandatory minimum sentence imposed for a 3rd strike from the list of predicate offenses under the new section 25(b) of chapter 279 MGL run from and after any sentence the defendant is serving at the time of sentencing.
Requiring a prisoner demonstrate competency in program material for any good time obtained through successful completion of a 6-month program.
Requiring the Parole Board certify, in writing, its satisfaction of the requirements for notification of the Attorney General, relevant District Attorney, chief of police and victims before a parole hearing is held for any person serving a life sentence.
Allowing judges to include pets in temporary restraining orders.
Making an attempt to disarm an on duty police officer a felony punishable by imprisonment in the state prison for not more than 10 years, or by a fine of not more than $1000, or imprisonment in a jail or house of correction for not more than 2 ½ years.
Requiring the commissioner of the Department of Correction to establish a prisoner re-entry and rehabilitation program at the beginning of a person's sentence.

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William J. Barabino
599 North Ave. Suite 7
2nd Floor
Wakefield, MA 01880

Phone: 781-245-5900
williambarabino@verizon.net