Will
I wonder if Massachusetts has a similar system as California where a representative of the Probation or Corrections department is responsible for interviewing researching and making a post sentencing recommendation to the Judge when deciding what sentence is to be imposed on a convicted person? If so does the Commonwealth have a legal framework under which this process works? Apparently in California the process is extremely opaque. Judge Persky in the Stanford rape case is being vilified by accepting this pre-sentencing report recommendation rather than following the law. But no one knows who did it; the writer is anonymous, only the court has seen it, what went into it, why it does not follow the legal code for the felonies the person was convicted of, what the rational was for the recommendation, if there are conflicts of interest in the process. Apparently according to a commentary in the Huffington Post, which I can not find right now, there are no standards and the report writer can consider anything and everything. The court the writer was convicted was Federal court in Connecticut. And the poster was complaining that the recommendation in their case considered factors that were not part of the trial, problems between the writer and his attorney and resulted in a vast increase in prison time with no ability to challenge the writer’s supposition of the facts or reasoning. The point is that the writer has vast power and basically no supervision on the recommendation they write, which is not how I envision our courts working.
It appears that in many states California included, these evaluations are made by private companies that also are responsible for providing parole monitoring and profit from putting people on parole for long periods of time by imposing fees for services and collecting fees from the state for the services provided the paroled person. One would think this is a conflict of interest.
It seems to me that the commonwealth would be well served if these reports were public after there use and available to the lawyers in the case, standardized, published, signed and the writers should be required to follow precedent the same way lawyers have to follow rules and precedent in their argument. This way a recommendation that falls outside normal practice would need to be vetted and justified. I am not opposed to making recommendations that result in lighter sentences, there needs to be an accountable process in doing so. It appears to me the problem in the Stanford Case was the following of the Probation Department report instead of the law for what ever reason, and not vetting the proposed sentence with the lawyers.
Interesting set of questions raised here.
During the sentencing process a wide range of information can be considered which may not meet the high standards of evidence required during the trial process. Typically, both the defense and the prosecution make arguments based on hearsay. However, Massachusetts does not have a routine process by which a third party like the probation department does research and makes a recommendation.
Sometimes sentencing can be opaque in Massachusetts — it is not uncommon for the parties to meet with the judge in the judge’s chambers to work out a plea agreement.