Senator predicts Patrick amendments as Senate sends sentencing bill to governor

By 
Michael Norton, Gintautas Dumcius and Matt Murphy, State House News Service
Jul. 20, 2012

The Senate on Thursday voted 31-7 to approve a bill broadening crime-fighting tools, ensuring that certain repeat violent offenders serve their full sentences, and easing prison overcrowding by adjusting sentencing laws for drug offenders.

Shortly after the vote, the House gave the bill final approval and senators sent it to Gov. Deval Patrick.

"The governor should sign it because it's the balanced bill that he asked for when the discussion began," Senate Minority Leader Bruce Tarr said after the vote.

While supporters said the bill featured a smart blend of policies that would ease prison overcrowding and improve public safety, critics of the bill said its habitual offender reforms would replace decision-making by judges with the "cold machinery of automated justice," as Sen. Cynthia Creem put it.

The bill would eliminate parole for certain habitual violent felons, and reduce some mandatory minimum sentences for drug offenders. The bill's details were negotiated over eight months by a six-member panel of House and Senate lawmakers. Creem, of Newton, was the lone vote against it on the conference committee.

After the Senate vote, Les Gosule, whose daughter Melissa was raped and murdered in 1999 by a habitual felon, described his 12-year push for a tougher, new habitual offender law as "a hike up a big mountain," thanking Speaker Robert DeLeo, Senate President Therese Murray, Tarr and others for their support.

"I met with the governor over the last couple of years a couple times. He sat with me. He gave me a hug. He gave me a handshake. He promised me. I'm holding him to his word, because we know the governor's an honorable man. He promised me if this bill was a fair bill, a balanced bill, that he would sign the bill and that the bill name would be Melissa Gosule's Bill. I anticipate the governor will keep his word," Gosule told reporters during a press conference after the vote.

Gosule was joined by Tarr, Sen. Jennifer Flanagan, Senate President Therese Murray and Chuck McGuire, whose brother John McGuire was shot and killed in December 2010 during a jewelry heist by a repeat felon.

"My brother was killed by the worst person in the world, someone who should have never been out. You couldn't ask for a better case for keeping someone in jail than keeping the guy that killed my brother. I mean, the Parole Board failed him miserably," McGuire said.

The bill includes a reform of the Parole Board to require two-thirds support to parole an inmate serving a life sentence.

On Wednesday, Cape and Islands District Attorney Michael O'Keefe blasted the habitual offender bill as a "fraud on the public" and urged Patrick to veto the bill.

O'Keefe criticized the failure of lawmakers to address needed updates to the state's wiretapping laws, or consider mandatory post-release supervision and other provisions that could deter crime. He also said the habitual offender law would ensnare no more than eight people a year, and was written in a way that would not have caught the man who raped and murdered Melissa Gosule in 1999.

Tarr called O'Keefe's comments "unfortunate," and predicted the legislature would be back next session to tackle "issues like wiretapping and strangulation and contract murder," as well as mandatory minimum sentencing.

"That doesn't mean it isn't a good bill for capturing recidivist violent offenders. He knows as well as anyone that we have to be very careful with regard to these matters so that we don't capture folks that aren't in that category, and we've been very careful…," Tarr said. "At the end of the day, sometimes you can't be all things to all people."

Middlesex County District Attorney Gerard Leone called the bill "a step in the right direction in protecting the public from the worst of the worst criminal offenders," and a "significant improvement" over the current habitual offender law.

"While there are further criminal justice reforms in areas like domestic violence, wiretaps, and DNA collection from convicts I wish were included that would have made the crime bill a stronger platform for victims and public safety, I am thankful that the Legislature has passed an improved and reformed habitual offender statute and I urge the Governor to pass the long-awaited habitual offender reform bill, honoring victims like Melissa Gosule and Jack Maguire," Leone said in a statement.

Gosule first told reporters that his daughter would still be alive if this law had been in place 13 years ago, but later acknowledged that a provision requiring a sentence of at least three years in state prison to count as a strike on an offender's record might not have ensnared Melissa's attacker, who was convicted of dozens of misdemeanors and some breaking and entering crimes.

"Even if this bill wouldn't have protected Melissa, if the bill protects some other woman from being raped then it's worth the time and effort," Gosule said.

Though supporters called the bill an important step toward taking violent criminals off the streets, some lawmakers, including Rep. Eugene O'Flaherty who helped write the proposal, expressed concern about whether the legislation struck the right balance of being not just tough on crime, but "smart on crime."

Creem, the chief Senate negotiator on a conference committee that recommended the bill this week, spoke out against the bill's three-strikes provision eliminating parole options for three-time offenders convicted of three separate felonies from a list of 40 enumerated crimes in the bill.

The bill's approach on habitual offenders lacked "safety valve" options available in many "red states" that allow judges to grant parole to people convicted under habitual offender laws, Creem said.

Creem also made a prediction. "I know the governor will make amendments because he publicly told us he wouldn't vote for a bill that didn't have a safety valve," she said.

While Creem was unavailable to elaborate on her prediction, documents obtained by the News Service appear to show the bill does not include three of seven key provisions sought by Patrick during negotiations.

On habitual offender reforms, the governor requests judicial discretion to allow for parole eligibility "in the interest of justice." The document also shows that Patrick requested a working group of legislative and administrative appointees to study mandatory minimum sentencing and a wiretap expansion for the next session, which was not included in the final bill. Patrick also sought a reduction in the size of school zones carrying harsher penalties for drug offenses to 250 feet, though the conference bill did shrink the zones to 300 feet from 1,000 feet.

During a TV interview Wednesday night, Patrick gave the bill, which cleared both branches by veto-proof margins, a mixed review. He described it as "not a bad bill" and "not as good as it could have been."

Asked if she thought Patrick would sign the bill, Murray said, "I don't know. I hope he does."

The House approved the bill Wednesday night on a 139-14 vote.

Joining Creem and Sen. Sonia Chang Diaz in voting against the bill were Sens. William Brownsberger, James Eldridge, Susan Fargo, Patricia Jehlen and Dan Wolf.

Tarr, a Gloucester Republican and a conference committee member, said, "This is not a bill that is a trap for the unwary. This is not a bill that arbitrarily metes out sentences. This is a bill that says that if you repeatedly victimize citizens in the commonwealth, we are going to respond forthrightly and decisively to eliminate your parole eligibility."

Creem said California laws do not allow mandatory life sentences without parole. "It can be argued that this bill is now tougher than the California notorious three-strikes," she said. "We've all heard of California's discredited three-strikes law."

During debate, Chang-Diaz (D-Jamaica Plain) read a letter the Black and Latino Legislative Caucus drafted and sent Wednesday to the Senate, decrying the bill as "not balanced."

"It imposes new burdens on our courts and prisons while doing too little to promote actual rehabilitation for non-violent offenders and prevent recidivism," they wrote. "It also removes the judicial discretion that is fundamental to the purpose of our judicial system and the principle of separation of powers."

Sen. Jennifer Flanagan (D-Leominster) urged her colleagues to vote for the bill, which she said is balanced and will save taxpayers money.

"This all began with the murder of a police officer," Flanagan said. "So we must remember that when we're talking about the crime bill, we're talking about everybody throughout the Commonwealth of Massachusetts regardless of what part of the state that you come from."