March/April 2008 Massachusetts Chapter
1
Mass Law & Order Snubs the Constitution
Luis Perez
To those individuals who are concerned with the subject of the illegal sentence imposed by the Massachusetts Courts between 1972-1982, the Constitutional Construction has the key legal language to understand the entire subject matter.
As you all know, I am a Red-Neck Cuban-American and I will try to explain as my dear friend from Springfield educated me when the research was completed.
After the ruling on Furman v. Georgia, Massachusetts Murder Statute did not have a saving clause or severability clause with the statute. Therefore, Furman’s decision did in fact invalidate the murder statute of G.L. c. 265 s2, that mandate the punishment.
The Saving clause is a simple document from the Legislative Branch indicating that if “the law will remain standing until it can be adjusted by the Legislature.” Similar as the State of Florida so allows the court to have a moratorium so that the legal language of the death penalty can be adjusted into the murder statute on that State.
In Massachusetts, the Judicial Branch has been more powerful than the other two branches of the Government. In particular, after the Civil War the court system did in fact trigger the Daniel Shays Rebellion in 1786- 1787.
It has been known by every citizen of the Commonwealth that Massachusetts Judges are indeed legislating from the bench, and that is what really happens after the Furman’s decision. They did not wait for the legislature to provide a new adjustment on the murder statute. When they realized that there was a constitutional legal gap, suddenly they provided the authorization to sentence individuals convicted of murder to life in prison and further issued a saving clause (1979-1982).
Explanation of the Statute
While G.L. c. 265 s1 defines the elements of murder, G.L.c. 265 s2 mandates the punishment that was divided in four different statutes after (1956).
- Upon a guilty verdict, with no recommendation that death be not imposed, the Judge had to issue a mandatory DEATH sentence. (No saving clause or severability clause).
- Upon a guilty verdict, with the recommendation that death be not imposed, the judge had to issue a mandatory life sentence without parole. (No saving clause).
- Upon a guilty verdict for rape-murder, the judge had to issue a mandatory death sentence, because according to the statute, the Jury could not recommend that death be imposed, nor could the court recording it. (No saving clause)
- Upon a guilty verdict for second degree murder, the Judge had to issue a mandatory life sentence, with parole eligibility. (No saving clause)
As enacted by the Legislature, those four punishments were mandatory, based upon Jury discretion and the only lawful punishments that have no saving clause or severability clause from one statute to the other.
The trial judges at that time made their own assumption from the bench; that they can sentence individuals convicted on 1st degree murder to life in prison, without receiving authorization from the Legislative Branch.
The leading case where the mistake was made Comm. v. Stewart 359 Mass. 671 was on appeal of his death sentence in Federal Court. Stewart v. Massachusetts, 408 U.S. 845 (1972).
The U.S. Court returned Stewart’s case for further proceedings only. The court was saying that Stewart still had a death sentence but the state of Massachusetts could not impose that sentence because it would be in violation of the VIII and XIV Amendments to the Constitution. When the court re-sentenced Stewart to life in prison, instead of reviewing the statutory jurisdiction of G.L.c. 265 s2, it was making a legal maneuvering, nothing more than legislating from the bench, with the sole purpose of rescuing G.L. c. 265 s2, from a charge of unconstitutionality.
In conclusion, there is a great historical severability doctrine that we can write a book and I have to make it simple. In the Stewart case, life sentence it would have been an unconstitutional ex-post factor law, in violation of Article 1, a10 of the U.S. Constitution and Article 24 of the Declaration of Rights of the Massachusetts Constitution.
I read on the Court’s brief in Com. v. Harrington, 367 Mass. 13,21 (1975), “We have no way of knowing how the Legislature would have reacted in 1951. It had foreseen the situation which arose more than twenty years later and without saving clause on the record.”
It has been very clear during the Legislature tenure of 1951 and 1956 that they were aware of the historical case that deals with the saving clause, as you can read Com, v. McDonough, 95 Mass. 581 585 (1866); “It is also to be considered that the Legislature might have inserted in the repealing act a saving clause…, if they had seen fit to do so. If they omitted it through mistake, the court cannot correct the mistake.”
“An unconstitutional law is void, and is as no law.” Ex parte Siebold, 100 U.S. 371, 376 (1879). Most recently, the U.S. Supreme Court affirmed another constitutional language that deal with judges legislating from the bench in Bush v. Gore, 121 S. Ct. 525 (2000). The State of Florida in recent Presidential elections, the State Court interpreted the elections laws without having authority from the Legislative Branch.
The separation of power between government branches was in violation of their own State Constitution. If the U.S. Supreme Court helped President Bush to be elected, that case should help us for interpretation of our own State Law; JUDGES LEGISLATING from the bench, and separation of power should be a subject for Governor Patrick to review the legality of those individuals that have been sentenced between 1972 and 1979.
One of our Supreme Court Judges (Spina, J.) is very much aware of this Constitutional error, but he is playing like he really doesn’t know anything about it.
Good Time, Bad Time, What Time, Any Time
David Jones
I read the recent article in the January/February MPV written by Luis Perez. In his article he talks about aspects of concern on earned good time and statutory good time for lifers that is not being dealt with.
I am in total agreement with what Luis has written, but I believe this problem extends even further. So I’d like to put a spin on what I perceive to be another glitch in the battle for earned good time in the Mass DOC.
In my own case, I was arrested in another state so I fought extradition. When I was finally brought here to Mass., I was deemed a juvenile because my case stemmed from a 1975 incident. Being 1997 when I was arrested for the case, I am now serving time. Being under juvenile status, I was held in Cambridge jail while I went through the juvenile aspect of my case while the DA and the court worked on having me bound over from juvenile status to adult status. This whole process took 2 ½ years. During that time while in Cambridge I did everything and anything I could to keep busy such as being a runner, a tier cleaner, a cage cleaner, taking the Street Law Program offered by N.E. School of Law, and anything else that came along. 2 ½ years working and taking classes for absolutely no earned good time I was finally indicted in 2000 and transferred to Concord. I stayed there for almost 5 years under 52A status. While under 52A status, I worked and did just about every program that was offered just to keep my sanity and to try to keep a positive attitude on my situation.
By the time I finally went to trial, I had 10 months fighting extradition, 2 ½ years in Cambridge and 5 years in Concord. I had 8+ years in before going to trial in 2004. I was sentenced in November 2004 and it took 6 + months before I was classed to BayState.
After trial with less than 4 years to wrap, I am now allowed to earn good time. I see this as a major problem. Why is it only after being convicted can a person earn good time? Why can’t good time be accumulated while you are waiting for trial? Then when the trial is over and if you are convicted and not doing a mandatory sentence, credit that earned good time towards your sentence. If the person who goes to trial should be found not guilty, all the better because they bettered themselves while waiting for trial.
How many men and women have to wait for lengthy periods of time before trial? Why should we have to be convicted in order to accrue good time credits that could be used if we are found guilty and convicted?
It could only work in the DOC’s favor. Say someone waits 2 years for a trial and ends up only having to serve 1 more year, gibe them any good time credits earned toward their sentence and if there is any good time left over, oh well! Earned good time should not have to start after conviction. There are plenty of people in the system that could greatly benefit by incorporating earned good time pre-conviction, plus putting good time in place while awaiting trial would help just a little in moving people through the system a little faster after conviction. It’s time to incorporate earned good time to 52A’s awaiting trials.
“Death” A Eulogy for A Friend
Robert LeSage
What man can live and not see death?
What man has the power over his own breath?
What man can save himself from ominous grave?
Not one, only Jesus, Who has the power to save.
The day of death, is better than the day of birth
On that day we will truly discover our soul’s worth,
Death is inevitable; it is the destiny of every man
And the living should take heart, best as they can.
Death is a time to celebrate, a time to remember
It’s a time of honesty, a time to bring cheer,
The hurts and pains of the past will last momentarily
But, one will always be held in esteem in memories.
God says, “I will ransom them from the graves power”
And he truly will resurrect us in His chosen hour,
Where oh death are thy plagues, where is thy sting?
For to our hearts, a healing balm Jesus brings.
Do not fear death, but see it as a great bridge
Which will take you across the mountain ridge,
That mountain which you have worked so hard to overcome
Now is brought low, through belief in God’s holy Son.
Welcome death as a brother if you’re a true believer
For Jesus your Brother is waiting, and He’s no deceiver,
His arms of unconditional love are opened wide
So as to accept you through His crimson tide.
Mobilization
Abdur Nadheeru Islam
Mobilization. What is mobilization? According to the tenth edition of the Merriam- Webster Collegiate dictionary, mobilization means: 1.To put into movement or circulation; 2. to release for bodily use; 3: to assemble and make ready for war duty; 4: to marshal for action.
Let us finish there. The absolute and basic certain point of this discussion is about us. Being mobilized! Why are we just following our every day schedulization- to the gym- to the library for fiction reading- to the yard etc. just allowing the Mass. DOC to dictate to us how we should live our lives in these Hell campuses.
We should be mobilized!
Now don’t get me wrong. What I mean is we should be writing to State and Federal Senators and Representatives, our new Governor and new Commissioner, writing to reporters and activists, making proposals that structure out lives for the better. Filing competent and articulate lawsuits addressing the heinous human right violations in the DOC. It is our time, no, past time to mobilize our community, our family and friends to stop the culture of abuse and torture of state empowered terrorism!
Let us mobilize to change our lives. Stop intimidation. Coercion, brutality and correctional murder. Stop disrespect, humiliation and dehumanization by wardens and guards. Stop over rides to higher security and allow lower security transfers to be top priority or stop high security policy and make lower security in every institution. Stop allowing the parole board to unjustly and uncivilly deprive us our God-given right to freedom to help and support our families. Stop D reports used as a weapon to destroy our liberty and movements. Allow us higher education, reinstitute the Pell grants, allow lifers parole, allow higher wages and days off. Better food and housing, vocations and voting. Allow conjugal visitations. Stop the high sentencing and warehousing of human beings. Stop segregation and allow the segregated world, school and recreation. Open the DOC up to public scrutiny and review and enforcement powers over prison staff. We must stop fighting and killing each other. We need to focus on providing opportunities for everyone. While we fight each other, the DOC grows rich and increases their state empowered terrorism over us. We must be mobilized! Start today.
That’s Hot
Ronald Scott
Are you intoxicated by your own relevance?
Compelled to strike a pose by glaring halogens?
Are you constantly bragging?
about celebrities you know
hoping to (snort) wallow in
the mire of their famous glow?
Are you never endingly engaged in the irrelevant
or like a child underfoot
afraid to miss a moment?
Are you perpetually lonely
stricken with Hobnobs disease
afraid to acknowledge friends
too busy trying to please?
Here’s a marvelous solution-
if you’ve given up hope-
you can check out in haute couture with a Louis Vuitton noosed rope!
Restorative Justice
“Prisons of the Future”
Brian Sirois
What may those who are incarcerated look forward too? For example, one who has injured another may be given an opportunity to work for that person and do service for them, or to earn for them in order to make up for their error which was caused. Not all errors can be made up for, but there can be some kind of equity involved. The person who is simply incarcerated, or whose eye was plucked out because they had plucked out the eye of another, has not in actuality given anything in compensation to the first person to make the first person’s life any better, other than a sense of mutual revenge.
Vengeance towards one who has committed a crime is not a wholesome value, but whereby the one who has committed a crime is forced or given the opportunity to give some meaningful service to compensate for the crime committed, then that can become a more meaningful form of equity and balance. The prisons of the future, another than simply being warehouses of incarcerated people, may consist of meaningful occupations within the prison or nearby, whereby the person may earn a decent wage, or may earn some form of compensation, which will be delivered to the victims of their crime.
This is, in part, because of this perverted form of punishment that many people subscribe to, i.e. lock them up and throw away the key attitude, is not working. What essentially happens is a person who committed a crime spends their time in prison, with little to nothing productive to do, and then being released, some have said to me, “I have served my punishment. I have served my time. I no longer feel guilty, or no longer feel I have a debt to society for the crime I committed.” Such people do not in all actuality feel themselves to be wholesome citizens of the society, for simply sitting in a prison, or serving time for a crime does not balance in reality the energies which the victim suffered.
Psychology 400, and the penal system of Europe have learned: The victim and the energies to balance the victim’s injury should in fact be paid by the energies of the one who so violated. That when the violator repays for the injury to the violated, then the violator has neutralized the karma, has balanced the karma involved. But simply to sit in a jail cell for a prescribed duration, (time out penalty), while the victim must live the injury and receive no compensation whatsoever; this is not a form of justice. Just look at their penalogical structure and sentencing, as a model. Where everyone including murderers, serves short intense sentences, has weekend furloughs; a meaningful job with compatible wages; attends intense restorative justice programs, giving then a hand up, not a hand out, and their recidivism rate is less than ¼ of one percent, or one person in over 400 is likely to reoffend, and they aren’t building any more prisons. Compare this to the U.S. as a whole, or even worse yet, to Massachusetts! Ouch!
With the Mass. State Governor, Deval Patrick, and the DOC Commissioner, Harold Clarke in office, taking note that the current system is just not working, this new system could be easily implemented if enough people in society would wake up and look around and begin to ask for this type of prison reform and for criminal reform bills to be enacted, can become a reality, saving the tax payers billions of hard earned dollars a year. For the court systems are not about justice, they’re about control!
In the case wherein a victim can not be compensated, such as where a life has been taken, and wherein the remaining victims, such as family can not be compensated, for they perhaps do not exist, then the one who violated can be sentenced to give meaningful service to other needy persons to the degree that would balance the type or nature of their crime, to that person who is no longer present upon Mother Earth.