- Massachusetts has abolished the death penalty. It also allows for parole in most cases, excluding some sex offenders.
- Massachusetts allows for mandatory LWOP and JLWOP. See Mass. Gen. Laws Ann. ch. 265, § 2.
- Juveniles may be transferred to adult court at age 14.
ALM Constitution Pt. 1, Art. XXVI (2012) Excessive Bail or Fines, and Cruel Punishments Prohibited.
No magistrate or court of law, shall demand excessive bail or sureties, impose excessive fines, or inflict cruel or unusual punishments. No provision of the Constitution, however, shall be construed as prohibiting the imposition of the punishment of death. The general court may, for the purpose of protecting the general welfare of the citizens, authorize the imposition of the punishment of death by the courts of law having jurisdiction of crimes subject to the punishment of death.
NOTE: Although the Massachusetts Supreme Judicial Court has never officially decided the issue, Article 26 is treated as the equivalent of the Eighth Amendment.
- Sentencing Guidelines System – Massachusetts Sentencing Guidelines -- A sentencing judge may depart from the Massachusetts Sentencing Guidelines if the court finds that any mitigating or aggravating circumstances exist. The judge must describe the circumstances for the departure in writing. Either party may appeal a departure. The Massachusetts Sentencing Guidelines are available here: https://www.mass.gov/law-library/massachusetts-sentencing-guidelines
- Habitual Offender Statute – ALM GL ch. 279, § 25 (2012) -- § 25. Punishment of Habitual Criminals.
Massachusetts courts give broad discretion to the legislature to determine what conduct is criminal and what punishments are appropriate for that criminal conduct. Commonwealth v. Alvarez, 413 Mass. 224, 233-234 (Mass. 1992); Commonwealth v. Morrow, 363 Mass. 601, 610-611 (Mass. 1973); McDonald v. Commonwealth, 173 Mass. 322, 328 (Mass. 1899).
State Constitution & Proportionality
The Massachusetts Supreme Judicial Court has never decided whether Article 26 is equivalent to the Eighth Amendment. Michaud v. Sheriff of Essex County, 390 Mass. 523, 533-534 (Mass. 1983); See Commonwealth v. Diatchenko, 387 Mass. 718, 722 n.2 (1982); Cepulonis v. Commonwealth, 384 Mass. 495, 496-497 n.2 (Mass. 1981); Commonwealth v. Diatchenko, 387 Mass. 718, 722 (Mass. 1982). Nevertheless, Article 26 is at least as broad as the Eighth Amendment. Michaud v. Sheriff of Essex County, 390 Mass. 523, 533-534 (Mass. 1983).
Article 26, like its federal counterpart, draws meaning from “the evolving standards of decency that mark the progress of a maturing society." Michaud v. Sheriff of Essex County, 390 Mass. 523, 533-534 (Mass. 1983) (quoting Trop v. Dulles, 356 U.S. 86, 101 (1958)).
The defendant has the heavy burden of establishing that his punishment is disproportionate to his offense. Commonwealth v. Alvarez, 413 Mass. 224, 233-234 (Mass. 1992) (citing Commonwealth v. O'Neal, 369 Mass. 242, 248 (Mass. 1975) (Tauro, C.J., concurring)); Commonwealth v. Sanchez, 405 Mass. 369, 379-380 (Mass. 1989); Cepulonis v. Commonwealth, 384 Mass. 495, 497 (Mass. 1981).
When considering the proportionality of any sentence other the death penalty, the standard of review is “whether the statute bears a reasonable relation to a permissible legislative objective." Commonwealth v. Diatchenko, 387 Mass. 718, 726-727 (Mass. 1982) (internal citations omitted).
The defendant’s punishment must be so disproportionate to the offense that it "shocks the conscience and offends fundamental notions of human dignity." Commonwealth v. Alvarez, 413 Mass. 224, 233-234 (Mass. 1992) (quoting In re Lynch, 8 Cal. 3d 410, 424 (Cal. 1972)); Commonwealth v. Tart, 408 Mass. 249, 266-267 (Mass. 1990); Commonwealth v. Jackson, 369 Mass. 904, 910 (Mass. 1976); Commonwealth v. Marcus, 16 Mass. App. Ct. 698, 699 (Mass. App. Ct. 1983); Opinion of Justices to House of Representatives, 378 Mass. 822, 830 (Mass. 1979).
In deciding whether a punishment is disproportionate to the offense, Massachusetts courts use a three-part test: (1) the nature of the offender and offense in light of the degree of harm to society; (2) sentencing provisions in other jurisdictions for similar offenses; and (3) sentences for more severe offenses within the Commonwealth. Commonwealth v. Alvarez, 413 Mass. 224, 233-234 (Mass. 1992); Commonwealth v. Therriault, 401 Mass. 237, 240 (Mass. 1987); Cepulonis v. Commonwealth, 384 Mass. 495, 497 (Mass. 1981), appeal dismissed, 455 U.S. 931 (1982); Commonwealth v. Bianco, 390 Mass. 254, 260-262 (Mass. 1983).
In regards to the third prong of this test, sentencing disparities between Massachusetts and other states may be no more that “different exercises of legislative judgment,” rather than unrestrained legislative action Commonwealth v. Bianco, 390 Mass. 254, 260-262 (Mass. 1983) (quoting Cepulonis v. Commonwealth, 384 Mass. 495,498 (1981)). Such a sentencing disparity does not violate Article 26 of the Massachusetts Constitution. Id.
Imprisonment for a long term of years “might be so disproportionate to the offense as to constitute a cruel or unusual punishment.” Commonwealth v. Alvarez, 413 Mass. 224, 233-234 (Mass. 1992) (quoting McDonald v. Commonwealth, 173 Mass. 322, 328 (Mass. 1899)); Commonwealth v. Sanchez, 405 Mass. 369, 379-380 (Mass. 1989); Commonwealth v. Bianco, 390 Mass. 254, 260-262 (Mass. 1983); Commonwealth v. Dunn, 43 Mass. App. Ct. 58, 62-63 (Mass. App. Ct. 1997).
Continue reading below
Cross-Examination Trial Pack
NACDL’s new Cross-Examination Trial Pack includes three of our best-selling Cross-Examination resources: “Damage Control: Situational Cross-Examination Techniques Trial Guide”, "Ultimate Cross 2.0: Audio Recordings & Written Materials" and "Sample Cross-Examination Questions."
This masterful collection of cross-examination resources provide countless tips, techniques and strategies for a variety of criminal case-specific scenarios. Learn to cross-examine a variety of trial witnesses!
Death Investigation: Forensic Pathology in the Courtroom and Cause & Manner of Death (2022)
This unique program provides criminal defense lawyers with an accurate and clear overview of forensic pathology and the countless factors to consider in a death investigation and will methodically explain what happens during an autopsy to determine cause and manner of death.
You'll uncover the different types of medicolegal death investigations, what to request from your MDI expert, quality benchmarks for accreditation and certification, guidelines and standards, common terminology and frequently asked questions.
The Psychology of Persuasion & Storytelling for Criminal Defense Lawyers
This Trial Resource Guide is a masterful collection of practical tips, techniques and strategies focused solely on using the arts and sciences of persuasion to improve your storytelling skills at trial.
You'll learn how to master the ability to communicate with juries, deliver powerful openings and closings, perform convincing cross-examinations, use effective courtroom choreography and non-verbal communication, identify and develop the optimal theme and theory for your case, and offer compelling arguments during mitigation and sentencing.
Zealous Advocacy in Sexual Assault & Child Victims Cases (2022)
Defending charges of sexual assault and child abuse can be daunting — but with the right tools, it doesn’t have to be.
Every year, NACDL identifies the hottest topics and most pressing issues when defending these cases, and brings-in nationally-renowned lawyers and experts to help you prepare for battle. This year’s 13th Annual Defending Sex Cases training program is our best yet; packed with topics and speakers you won’t want to miss!
Mandatory life imprisonment is not a per se violation of the Massachusetts Constitution. Commonwealth v. Diatchenko, 387 Mass. 718, 723 (Mass. 1982).
The following appellate cases mention both Section 26 and the Eighth Amendment, but do not provide any significant analysis of Section 26:
- Commonwealth v. Rivera, 2011 Mass. App. Unpub. LEXIS 81 (Mass. App. Ct. Jan. 19, 2011) –
- Commonwealth v. Farley, 6 Mass. L. Rep. 175 (Mass. Super. Ct. 1996) –
- Commonwealth v. Silva, 21 Mass. App. Ct. 536, 542-543 (Mass. App. Ct. 1986) –
Leading Court Discussions of Graham and Miller
Com. v. Walczak, 463 Mass. 808, 979 N.E.2d 732zh (December 12, 2012) (concurring) (Graham and Miller show juveniles are different so court may give them additional protection by instructing grant jury) (another concurring opinion says this is not a constitutional requirement because this is not mentioned in the Miller trilogy)
Chardin v. Police Com'r of Boston, 465 Mass. 314, 989 N.E.2d 392 (June 4, 2013) (Eighth Amendment does not apply to regulatory statutes like issuance of firearm license)
Continue reading below
Diatchenko v. Dist. Attorney for Suffolk Dist., 466 Mass. 655 (December 24, 2013) (Miller applies retroactive to cases on collateral review because it is substantive. Grant broader protection to juveniles by holding that mandatory imposition of LWOP on juveniles violates U.S. constitution and discretional LWOP violates Massachusetts Constitution.)
Com. v. Keo, 467 Mass. 25 (January 21, 2014) (LWOP imposed on juvenile offender charged with first degree murder violates U.S. Constitution and Massachusetts Constitution and should be remanded to life with possibility of parole)
Com. v. Ray, 467 Mass. 115, 140 (February 12, 2014) (following Diatchenko, remand the LWOP sentence on juvenile convicted first degree murder to district on the parole eligibility)