Excessive Sentencing Project - Massachusetts

Policies and rulings on lengthy imprisonment terms in Massachusetts.

Return to the Map

  • 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.
State Constitution

ALM Constitution Pt. 1, Art. XXVI (2012)

Art. XXVI. 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 Statutes
  • 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: http://www.mass.gov/courts/formsandguidelines/sentencing/intro.html 
  • Habitual Offender Statute –  ALM GL ch. 279, § 25 (2012) -- § 25.  Punishment of Habitual Criminals.
Case Law

General  

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); SeeCommonwealth 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).

Continue reading below

Coronavirus Resources

NACDL to Focus on Service and Support for Members, Clients, and Community Throughout Virus Emergency

Learn More

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).

Mandatory life imprisonment is not a per se violation of the Massachusetts Constitution. Commonwealth v. Diatchenko, 387 Mass. 718, 723 (Mass. 1982).

Continue reading below

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) 

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)