>Let Judges Decide

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The legislature should revise the suspended sentence statute (G. L. c. 279, § 3) to give judges greater discretion in resolving probationary matters.

When a defendant violates probation, and the alleged violation took place when the client was free on a suspended sentence, judges lack the discretion to impose common-sense resolutions. The case of Commonwealth v. Holmgren, 421 Mass. 224 (1995) points out that in these cases, the legislature drafted language that eliminates the judge’s ability to impose sentences other than the original suspended sentence.

Every probation violation hearing has two questions: (1) the factual issue of whether the violation took place, and (2) if so, should probation be revoked. see Dist. Ct. Rules for Prob. Viol Proc. In cases of “straight” probation, when a judge revokes probation, he is has wide discretion about where to go. He may extend the probation, leave it the same, or impose additional conditions. However, in cases where the probation was part of a suspended sentence, once the probation has been revoked, the Judge has no choice but to impose the original suspended sentence.

For example, let’s say that someone is on probation as part of a 1 year suspended sentence for drug possession. Let’s say that he fails a mandatory drug screening during the probation period. Once the violation has been proven, the hearing judge has only 2 choices: (a) Not revoke the probation (doing nothing), leaving the probation as it was, or (b) impose the full 1 year sentence. This is ridiculous. If he chooses option (a), then he basically sends the message, “Yes, you screwed up, but we’re going to let you get away with it.” If he chooses option (b), then he is sending a guy to jail for a full year just for failing a drug test. Both options seem extreme to me.

Judges deserve a third option. If a judge decides to revoke probation, he or she should be able to adjust the sentence, impose additional conditions (like detox), or find other solutions based on a defendant’s individual situation. If the legislature were to overturn the statute behind the Holmgren decision, adopting instead the more flexible federal rule, judges would be given that freedom. Given the overcrowding of the jails, this would go a long way in making sure that we only incarcerate people who belong in jail.

With the current fiscal crisis stressing all parts of state government, we cannot afford to send people to jail unnecessarily. The legislature should really do something about this.