Samuel Goldberg has been a Massachusetts criminal defense attorney for 20 years. Prior to that, he was a New York state prosecutor. He has published various articles regarding the practice of criminal law and frequently provides legal analysis on radio and television, appearing on outlets such as the Fox News Channel, Court TV, MSNBC and The BBC Network. To speak to Sam about a criminal matter call (617) 492 3000.

WOULD A MASSACHUSETTS SENTENCING HEARING BEEN MUCH DIFFERENT FOR LARRY NASSAR?

Well, the hearing in Lansing, Michigan, has grabbed the attention of the nation over the past week or so. The court’s judgment came down yesterday.

Larry Nassar, hereinafter, the “Defendant”, the 54-year-old former sports doctor (who had already been convicted of dealing in child pornography) has now been given his sentence in his most recent brush(es) with the law. I invoke the plural given the sheer number of victims.

As reported by the Boston Herald, the Defendant has admitted sexually assaulting  some of the nation’s top gymnasts for years under the guise of medical treatment.

There was no room for doubt as to how the judge felt as she sentenced him. Aside from indicating that she would not be opposed to a death penalty sentence in his case, statements like “”I just signed your death warrant” and “It is my honor and privilege to sentence you. You do not deserve to walk outside a prison ever again.” Left little room for doubt.

Neither did the sentence of 40 to 175 years in prison. He had already been sentenced to a 60 year sentence for the above-mentioned child pornography case.

The sentence came after a seven-day hearing in which scores of the Defendant’s victims were able to confront him face to face in court for the sentencing hearing.

Attorney Sam’s Take On Massachusetts Criminal Sentencing

First, let’s deal with the question which serves as the title for today’s posting. The answer is “I doubt it” as to whether the sentencing hearing would have played out differently in Massachusetts. The only reason there is any doubt is that different personalities might be involved The process of a sentencing hearing is the same.

By law, victims are accorded the right to address the court as to the effects of the crimes by a given defendant. Their input is considered along with other factors when the judge considers the proper sentence.

“Sam, what are the factors?”

 

The factors are what you would expect them to be. The effect on the victim, the history of the defendant, the need for punishment, deterrence to others and the interest in rehabilitation.

“How are they applied?”

That sometimes differs from judge to judge. For example, some judges put more emphasis on rehabilitation. Others are more dedicated to punishment. Still others focus on the effect on the victim(s).

Most criminal sentences in the Commonwealth have a built in range, such as a 5 – 7 year sentence as to a simple 7 year sentence. This puts some of the responsibility on the defendant as to what he or she does while in custody.

Some crimes have mandatory minimums and maximums. However, many of the more serious crimes have no maximum sentences. In other words, it can be life.

“Life”, as you might imagine does not really mean the entire life. With the exception of Murder in the First Degree, there is parole legibility at some point…at least 20 years.

“Does the prosecutor get to determine the sentence?”

No. The prosecution, like the defense, make a recommendation to the court. Sometimes there is an agreement between the two. That would be in the case of a plea bargain. However, often the two sides do not agree. When there is agreement, the court usually goes along with it, figuring that the lawyers know the case the best. However, the judge does not have to agree and often does not. After all, the judge has to sign off on the sentence and if, for some reason, that sentence hits the press (usually for being “too lenient”), it is the judge who will be criticized.

In the past, we have discussed many such situations. Nobody seems to challenge or criticize a criminal sentence for being “too tough”. Only the opposite.

“Doesn’t the Commonwealth have to recommend what the victim wants?”

No. The Commonwealth will take it into account, but it is not bound by it. You must remember that the criminal case is the Commonwealth vs. the defendant. The Commonwealth is the plaintiff. The victims are witnesses.

Important witnesses, yes.

But simply witnesses.

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