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January 18, 2018

Massachusetts Supreme Judicial Court unanimously rejects constitutional attack on consideration of victim impact statements at sentencing

The Massachusetts Supreme Judicial Court handed down a notable short ruling today in Massachusetts v. McGonagle, SJC-12292 (Mass. Jan. 18, 2018) (available here). Here is how the unanimous opinion starts and ends:

General Laws c. 258B, § 3 (p), permits "victims . . . to be heard through an oral and written victim impact statement at sentencing . . . about the effects of the crime on the victim and as to a recommended sentence."  We transferred this case here on our own motion to answer two questions: first, whether the United States Supreme Court's recent decision in Bosse v. Oklahoma, 137 S. Ct. 1 (2016) (per curiam), precludes a sentencing judge from considering victim impact statements "as to a recommended sentence" under the Eighth Amendment to the United States Constitution and art. 26 of the Massachusetts Declaration of Rights; and second, whether the sentencing recommendation provision violates the defendant's constitutional guarantee of due process.  We conclude that a sentencing judge's consideration of victim impact statements "as to a recommended sentence" is constitutional because the concerns underpinning the Supreme Court's treatment of victim impact statements before a jury during the sentencing phase of a capital murder trial differ from those at issue here.  We further conclude that a victim's right to recommend a sentence pursuant to G. L. c. 258B, § 3 (p), satisfies the requirements of due process. We therefore answer both questions in the negative and affirm....

"Few, perhaps no, judicial responsibilities are more difficult than sentencing. The task is usually undertaken by trial judges who seek with diligence and professionalism to take account of the human existence of the offender and the just demands of a wronged society."  Rodriguez, 461 Mass. at 259, quoting Graham v. Florida, 560 U.S. 48, 77 (2010).  The concerns underlying the Supreme Court's holdings in Booth and Bosse, that sentencing decisions not be made based on emotion, apply in nearly every sentencing decision.  They raise an important caution. When a crime victim recommends a particular sentence to a judge, that judge must dispassionately consider that recommendation, cognizant that the sentencing decision is the judge's and the judge's alone.  We expect judges to make sentencing decisions devoid of emotion, prejudice, and the relative status of a particular crime victim.

We all stand equal before the bar of justice, and it is neither cruel nor unusual or irrational, nor is it violative of a defendant's due process guarantees, for a judge to listen with intensity to the perspective of a crime victim.  We affirm.

UPDATE: Not long after noting this case, it dawned on me that this posting might be a fitting place to link this compelling account from the Washington Post of all the compelling victim impact testimony being offered in a high profile case in Michigan this week.  The extended article is headlined "At Larry Nassar sentencing hearing, a parade of horror and catharsis," and here is the context:

Nearly a year and a half after one woman filed a police report and contacted a newspaper, the criminal cases against Larry Nassar are nearing an end this week with a marathon sentencing hearing — 105 of the more than 130 girls and women who’ve accused Nassar of abuse are expected to speak — that began Tuesday and could end Friday, before a judge levies a sentence for seven sex crimes Nassar has admitted to as part of a plea deal.

January 18, 2018 at 04:44 PM | Permalink


I understood the opinion as denying a challenge to victim recommendations for the sentence, not victim impact statements per se. The two seem to me like pretty different issues.

Posted by: John | Jan 19, 2018 12:29:31 AM

I do not understand something. It is customary to have a female attendant when a male doctor examines a female patient, like for the past 5000 years. In the case of children, it may be a parent. I understand not doing that during busy times, but rarely. I do not understand how sexual abuse could have occurred so many times, over such a long time. Patients would know this if they had ever gone to any other doctor.

Victim impact statements are more lawyer bullshit. The real interest of victims is to not get victimized. That interest the filthy lawyer traitor profession will be crushing at every opportunity. The lawyer traitor filth is trying to increase actual criminal victimization, to increase lawyer employment. The greatest threat to crime victims is this filthy traitor profession. They never fail to protect, privilege, and empower their client, the criminal.

We know victims are upset. To say so, wastes the time of the court, adding zero dispositive fact. Their Supreme Court falsely labeled "attestations" are actually testimony. Their not being cross examination is a self evident violation of the procedural process right and the Sixth Amendment right to confront accusers. For example, one would ask if the victim boohooing got any benefit from the abusive service. One would ask if she knew about the above described standard practice, and failed to request the attendant. Furthermore, these stupid and pointless, falsely labeled "attestations" are a Trojan Horse for future lawyer representation of all victims at tax payer expense.

Posted by: David Behar | Jan 19, 2018 2:23:11 AM

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