Do vic­tims have a say?

Court to hear case on pun­ish­ment re­quests

Boston Herald - - NEWS - Bob McCOVERN

After a con­vic­tion, vic­tims are al­lowed to tell the world about the im­pact the crime had on them and their loved ones — and as part of those of­ten-tear­ful so­lil­o­quies, they can sug­gest a pun­ish­ment to the judge who will even­tu­ally lay down a sen­tence.

But those sug­ges­tions are un­der fire, and next Thurs­day the Supreme Ju­di­cial Court will hear a case that asks whether or not re­quest­ing a pun­ish­ment vi­o­lates a con­vict’s con­sti­tu­tional rights.

“There are ex­perts on sen­tenc­ing — the judge, prose­cu­tor and de­fense at­tor­ney — but the vic­tim is not in that po­si­tion,” said Max Bauer, the at­tor­ney chal­leng­ing the prac­tice. “They un­der­stand what ef­fect the crime had on them, but they don’t know what an ap­pro­pri­ate sen­tence is.”

Bauer is rep­re­sent­ing Shawn McGona­gle, who in 2016 was found guilty of sim­ple as­sault and bat­tery after a two-day trial at West Roxbury District Court. At sen­tenc­ing, Judge Paul J. McManus asked to hear from An­gel Otero, the vic­tim of the crime, ac­cord­ing to court doc­u­ments.

Otero said: “I would like it for him to get the max­i­mum.”

Al­though McManus didn’t hand down the max­i­mum sen­tence, Bauer ar­gues that the very fact that the judge asked — and that state law al­lows a vic­tim to give their opin­ion — is un­con­sti­tu­tional.

He cites a Supreme Court de­ci­sion stat­ing that, in death penalty cases, al­low­ing a vic­tim’s fam­ily mem­bers to sug­gest an ap­pro­pri­ate sen­tence vi­o­lates the Eighth Amend­ment.

“The Supreme Court has never held that pro­hi­bi­tion is in­ap­pli­ca­ble to non-cap­i­tal cases,” Bauer wrote in his pitch to the SJC. “The dan­ger of im­prop­erly in­flu­enc­ing a sen­tence is just as real in other crim­i­nal con­texts; the same rea­son­ing should ap­ply.”

But Suf­folk pros­e­cu­tors ar­gue vic­tims have had the right to be heard at sen­tenc­ing for years and that Bauer’s chal­lenge “has no merit.”

“Un­der th­ese cir­cum­stances, it ap­pears the de­fen­dant’s goal is not to cor­rect an un­just sen­tence but to fur­ther si­lence vic­tims by elim­i­nat­ing the one op­por­tu­nity they have to ad­dress the court,” Suf­folk District At­tor­ney spokesman Jake Wark said in an email.

Kim Bozzi, the aunt of teen suicide vic­tim Con­rad Roy III, asked for a 20-year prison sen­tence for Michelle Carter on the heels of her con­vic­tion in the block­buster suicide-by-text case. She said the rule is fine as is.

“Vic­tims should be able to say what­ever they want,” she said.

“They should be able to yell and scream and cry and sug­gest a sen­tence. It’s their mo­ment.”

POOL PHOTO, TOP; sTaff PHOTO, aBOVE, By faiTH niniVaggi

VIC­TIM IN­PUT: Kim Bozzi, above, the aunt of teen suicide vic­tim Con­rad Roy III, speaks after Judge Lawrence Moniz found Michelle Carter, top right, guilty of in­vol­un­tary man­slaugh­ter in Roy’s death. Bozzi thinks the rule be­ing chal­lenged in court next week, which al­lows vic­tims to spec­ify de­sired pun­ish­ment, is fine as it is.

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