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Date: 01-18-2018

Case Style:


Massachusetts Supreme Judicial Court

Case Number: SJC-12292

Judge: David A. Lowy

Court: Massachusetts Supreme Judicial Court

Plaintiff's Attorney: Cailin M. Campbell
Assistant District Attorney

Defendant's Attorney: Max Bauer

Description: Following a trial in the
District Court, a jury convicted the defendant, Shawn McGonagle,
of assault and battery, G. L. c. 265, § 13A. At the defendant's
sentencing hearing, the Commonwealth requested that the
defendant be sentenced to two and one-half years in a house of
correction, the maximum possible sentence under the statute, to
be served from and after his release on an unrelated one-year
sentence for violating an abuse prevention order. Immediately
after the Commonwealth's recommendation, the victim gave an
impact statement, during which he told the judge, "I would like
. . . for [the defendant] to get the maximum [sentence], and not
concurrent." The defendant then requested a sentence of nine
months in a house of correction to be served concurrently with
his unrelated sentence.
The judge sentenced the defendant to eighteen months in a
house of correction to be served concurrently with the sentence
he was then serving. This was a lesser term of imprisonment
than the maximum possible sentence or the sentences recommended
by both the Commonwealth and the victim. The judge did not
explicitly reference the victim's statement, but explained that
in deciding the appropriate sentence, he placed great weight on
the victim's injuries and the defendant's criminal record.

Discussion. The defendant does not challenge G. L.
c. 258B, § 3 (p), in its entirety, but instead only challenges
the portion of the statute that permits victims to provide an
impact statement "as to a recommended sentence." The defendant
relies on Booth v. Maryland, 482 U.S. 496 (1987); Payne v.
Tennessee, 501 U.S. 808 (1991); and Bosse, 137 S. Ct. 1, to
support his claim that a victim's recommendation as to a
particular sentence violates the proscription against cruel and
unusual punishments under the Eighth Amendment, and its "cruel
or unusual punishments" counterpart under art. 26. The
defendant further contends that allowing a victim to recommend a
particular sentence violates due process.
1. Eighth Amendment and art. 26. In Booth, 482 U.S. at
509, the United States Supreme Court held that the introduction
of certain types of victim impact statements to a jury "at the
sentencing phase of a capital murder trial violates the Eighth
Amendment." Specifically, the Court identified two prohibited
categories of victim impact statements: (1) those providing
accounts of the emotional impact of the crime and descriptions
of the victims' personal attributes; and (2) those addressing
the victims' family members' opinions about the crime and the
defendant, and recommendations as to the defendant's sentence.
Id. at 502. Four years later, however, the Court in Payne, 501
U.S. at 827, held that "the Eighth Amendment erects no per se

bar" to the admission of the first category of victim impact
statements identified in Booth if the State authorizes their
admission. The Court declined to reconsider the Eighth
Amendment's prohibition on the second category of victim impact
statements concerning "opinions about the crime, the defendant,
and the appropriate sentence." Id. at 830 n.2.
After the defendant was sentenced in this case, the Supreme
Court decided Bosse, 137 S. Ct. at 2, which clarified its
holdings in Booth and Payne. The Court stated that Payne held
"that Booth was wrong to conclude that the Eighth Amendment
required . . . a ban" on the first category of victim impact
statements. Id. The Court then emphasized that Payne was
expressly limited to the first category of statements regarding
"the personal characteristics of the victim and the emotional
impact of the crimes on the victim's family." Id., quoting
Payne, 501 U.S. at 817. Thus, Booth's prohibition as to the
second category of victim impact statements concerning
"characterizations and opinions [from a victim's family] about
the crime, the defendant, and the appropriate sentence" remained
intact. Bosse, supra.
While the prohibition on the second category of victim
impact statements announced in Booth and reaffirmed in Bosse
remains binding precedent in capital murder trials, that
prohibition has no application here for two reasons. First,

this is not a capital murder case. The Supreme Court in Booth,
482 U.S. at 509 n.12, expressly relied on the unique character
of the death penalty, a "punishment different from all other
sanctions," in rendering its decision (citation omitted).
Second, the victim impact statement in this case was made to a
judge who imposed the defendant's sentence, not to a jury.
While a jury in a capital murder trial may be unable to separate
relevant evidence from that which is unduly prejudicial, we
trust that judges, when weighing such statements as part of the
sentencing determination, will render decisions guided by the
best practices for individualized evidence–based sentencing,
according to law and logic, not emotion. Cf. Fautenberry v.
Mitchell, 515 F.3d 614, 639 (6th Cir.), cert. denied, 555 U.S.
951 (2008) (concerns in Booth "are severely diminished -- if not
entirely obviated -- when the sentencer is a judge or a three
judge panel, rather than a lay jury").
We conclude that the Supreme Court's holding in Booth does
not apply to noncapital proceedings and, therefore, it does not
prohibit the statement at issue here.2 The dangerous uses to
2 We have never interpreted art. 26 of the Massachusetts Declaration of Rights more broadly than the United States Supreme Court has interpreted the Eighth Amendment to the United States Constitution, Diatchenko v. District Attorney for the Suffolk Dist., 466 Mass. 655, 667 n.13 (2013), S.C., 471 Mass. 12 (2015), and we decline to do so here because the concerns that motivated the Court in Booth v. Maryland, 482 U.S. 496,


which a jury in a capital murder trial may put a victim's
recommendation as to a particular sentence are not present at a
noncapital sentencing proceeding before a neutral, impartial
2. Due process. Having concluded that the United States
Supreme Court's holding in Booth, supra, under the Eighth
Amendment is limited to capital murder trials, we consider
whether the sentencing recommendation provision of G. L.
c. 258B, § 3 (p), nonetheless violates due process.4 Where, as
here, the statute does not affect a fundamental right or target
a suspect class, we apply the rational basis test. Goodridge v.
Department of Pub. Health, 440 Mass. 309, 330 (2003).
505-509 (1987), are not implicated in the instant case.

3 We note the absence of any indication that the sentencing judge in this case was unduly influenced by the victim's sentencing recommendation. The judge specifically noted that it was his, not the victim's, responsibility to impose a sentence, the significance of which he clearly understood. Additionally, the transcript reflects that, in sentencing the defendant, the judge properly considered the nature and circumstances surrounding the commission of the crime, the defendant's prior criminal record, and the significant injuries the victim sustained. See Commonwealth v. Rodriguez, 461 Mass. 256, 259 (2012); Commonwealth v. Lykus, 406 Mass. 135, 145 (1989).

4 The defendant does not specify whether he asserts this claim under the Fourteenth Amendment to the United States Constitution or the parallel provision of the Massachusetts Declaration of Rights. Nevertheless, we analyze due process claims in this area under the same framework. Goodridge v. Department of Pub. Health, 440 Mass. 309, 353 (2003) (Spina, J., dissenting).

"[R]ational basis analysis requires that statutes 'bear[] a real
and substantial relation to the public health, safety, morals,
or some other phase of the general welfare'" (citation omitted).
Id. We note that "[t]he Legislature is presumed to have acted
rationally and reasonably." Commonwealth v. Leis, 355 Mass.
189, 192 (1969).
The Legislature enacted G. L. c. 258B, § 3, as part of an
initiative to "provide victims a meaningful role in the criminal
justice system . . . to the greatest extent possible." Section
3 "was intended to change the 'traditional view' of victims from
virtually silent observers to active participants in the
criminal justice process." Hagen v. Commonwealth, 437 Mass.
374, 380-381 (2002). Consistent with this purpose, G. L.
c. 258B, § 3 (p), permits "victims . . . to be heard through an
oral and written victim impact statement at sentencing . . .
against the defendant about the effects of the crime on the
victim and as to a recommended sentence." Absent this
legislative authorization, crime victims would not have an
opportunity to voice the impact of the crime at sentencing, even
though the criminal conduct has a direct impact on them. See
Hagen, supra at 380. Crime victims are unrepresented at trial.
The prosecutor is not their advocate; the prosecutor advocates
for the Commonwealth. Id., quoting Taylor v. Newton Div. of the
Dist. Court Dep't, 416 Mass. 1006, 1006 (1993). While victim

impact statements give crime victims a voice at sentencing, a
victim's ability to state the impact of a defendant's criminal
conduct by recommending a particular sentence provides all
victims the language to express that impact, regardless of their
ability eloquently or precisely to verbalize the impact of the
In addition to providing all crime victims a voice at
sentencing, the sentencing recommendation provision of G. L.
c. 258B, § 3 (p), assists judges in fashioning just and
appropriate criminal sentences. "[T]o impose a just sentence, a
judge requires not only sound judgment but also information
concerning the crimes of which the defendant stands convicted,
the defendant's criminal and personal history, and the impact of
the crimes on the victims." Commonwealth v. Rodriguez, 461
Mass. 256, 259 (2012). A victim may use the opportunity to
recommend a particular sentence to the judge to urge imposition
of a lengthy sentence or to request mercy. While the decision
to impose sentence rests exclusively with the judge, a victim's
recommendation, whether it be for a lenient sentence in the hope
of redemption or for a maximum sentence commensurate with harm,
is a relevant consideration in determining the appropriate
sentence to impose.5 Since the statute provides a mechanism for
5 The Superior Court Working Group on Sentencing Best


victims to participate in the sentencing process in a way that
enhances judges' understanding of the impact of the crime, we
reject the defendant's argument that the sentencing
recommendation provision of G. L. c. 258B, § 3 (p), lacks a
rational basis.
"Few, perhaps no, judicial responsibilities are more
difficult than sentencing. The task is usually undertaken by
trial judges who seek with diligence and professionalism to take
account of the human existence of the offender and the just
demands of a wronged society." Rodriguez, 461 Mass. at 259,
quoting Graham v. Florida, 560 U.S. 48, 77 (2010). The concerns
underlying the Supreme Court's holdings in Booth and Bosse, that
sentencing decisions not be made based on emotion, apply in
nearly every sentencing decision. They raise an important
caution. When a crime victim recommends a particular sentence
to a judge, that judge must dispassionately consider that
recommendation, cognizant that the sentencing decision is the
judge's and the judge's alone. We expect judges to make
Practices acknowledges that the impact of the defendant's criminal conduct on the victim is a relevant consideration in determining the appropriate sentence to impose. See Superior Court Working Group on Sentencing Best Practices, Criminal Sentencing in the Superior Court: Best Practices for Individualized Evidence–Based Sentencing, at 5-6 (Mar. 2016) ("In formulating a criminal disposition, a judge should consider . . . victim impact statements" and fashion sentence that is "proportionate to . . . the harms done to crime victims").

sentencing decisions devoid of emotion, prejudice, and the
relative status of a particular crime victim.

Outcome: We all stand equal before the bar of justice, and it is neither cruel nor unusual or irrational, nor is it violative of a defendant's due process guarantees, for a judge to listen with intensity to the perspective of a crime victim.

We affirm.

Plaintiff's Experts:

Defendant's Experts:


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