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July 7, 2016

Does Massachusetts have a problem with under-punishment of convicted rapists?

The question in the title of this post is prompted by this new Boston Globe article headlined "Dozens of convicted rapists in Mass. have avoided prison. " Here are excerpts:

More than three dozen people convicted of rape in Massachusetts in recent years have received no prison time for their crimes, state data show, including several who had lengthy criminal histories.  A Globe review of Massachusetts court system statistics on 305 rape convictions in the 12-year period that concluded at the end of June 2013 found that in 42 cases, or about 14 percent of the time, defendants received no prison time.

They included two defendants who had a record of either “repetitive” or “violent” convictions, and three had a “serious record.” Seven had a “moderate record” of convictions, while 30 had either never been convicted of a crime or had been convicted of what the court system considered minor offenses. The figures come from annual reports by the Executive Office of the Trial Court.

“If you look at any other violent, serious felony, this would never happen,” said Colby Bruno, an attorney at the Victim Rights Law Center in Boston.  Rapists should not be given leniency when it comes to sentencing, Bruno said.

In Massachusetts, state sentencing guidelines call for anyone convicted of certain serious crimes, including rape, to be sentenced to some period of incarceration. For rape, the minimum recommended sentence is five years. But judges aren’t required to follow the guidelines.  The Massachusetts data reviewed by the Globe showed that convicted rapists who were incarcerated were typically sentenced to between five and 10 years in prison, and that defendants with more troubling criminal histories usually received lengthier sentences....

National statistics on criminal sentencing are limited. But a federal study on cases that began in 2009 in large urban US counties found 11 percent of convicted rapists were not sentenced to jail or prison time. For those who were incarcerated, the median prison sentence length was 10 years....

The Globe’s review of the data focused on convictions under Massachusetts’ definition of rape, which is described as nonconsensual sex with someone by using force or the threat of bodily injury. The review did not look at other classifications of the crime, such as aggravated, statutory, or child rape. The reports did not detail specific cases. The state trial court office, which is exempt from public record disclosure laws, declined to release further details. The most recent year for which data was available was fiscal year 2013.

Defense attorneys, as well as former judges and prosecutors, offered several potential reasons why someone convicted of rape might not get prison time. One of the most likely scenarios, experts said, would be a plea bargain.  A prosecutor with a weak case could offer, in exchange for a guilty plea, to recommend a lesser sentence such as probation to the judge.

Getting a conviction and at least some punishment for the defendant is sometimes viewed as a better option than risking losing the case at trial.  It also removes the possible need to bring a traumatized victim to testify. “The ultimate goal is to decrease crime and hold people responsible, and sometimes that can come in different forms and packages,” said law professor Mary G. Leary, a former prosecutor whose focus included sexual assault cases.

In another possible scenario, a victim might ask the judge not to incarcerate the assailant. “Sometimes, when you have parties who know each other, they want the person convicted, but they don’t want them to be incarcerated,” said Christine Cole, executive director of the Crime & Justice Institute, part of the Boston-based nonprofit Community Resources for Justice.

In addition, judges carefully weigh many factors when making sentencing decisions. Factors can include the specific facts of the crime, and whether the defendant cooperated with prosecutors, showed remorse, has a criminal past, and is likely to reoffend, specialists said. The details of each case are critical, said Nancy Gertner, a former federal judge in Boston and a former defense attorney. For example, Gertner said, she routinely encountered cases where defendants, particularly those with drug addiction problems, “wound up with these very long rap sheets, but of relatively minor offenses.”

Some observers, including Cole and Gertner, said they believe judges sentence appropriately in the vast majority of cases. Martin Rosenthal, a longtime criminal defense attorney and Massachusetts Sentencing Commission member, agreed, saying that while “it’s certainly unusual for someone to be convicted of rape and not get incarcerated . . . I don’t think that rape is being diminished in any way” by judges or the justice system.  “The idea that we’re being soft on rape as a society is just not true,” he said.

July 7, 2016 at 01:49 PM | Permalink

Comments

Yep. We have an over-incarceration problem in this country. The federal study is troublesome.

Posted by: federalist | Jul 8, 2016 1:18:10 PM

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