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SJC: Judges can grant probation in some ‘three strikes’ cases

Sebastian Duda - stock.adobe.com

The state’s highest court says that defendants convicted under one section of the Massachusetts “three strikes” law can be placed on probation by a judge, rather than face hefty sentences for their third offense.

The Supreme Judicial Court, after analyzing the law’s wording and legislative history, found Tuesday that it was ambiguous. And the court invited legislators to alter it if they wanted to.

The SJC cited the “rule of lenity,” saying that in the case of ambiguous wording or legislative intent that could not be ascertained, the defendant is entitled to the “benefit of any rational doubt.”

“I think the decision interprets the statute in a way that provides a safety valve for third-strike nonviolent offenders,” said Ines McGillion, who represented Ricardo Montarvo, the defendant in a Worcester case who appealed his third-strike sentence. The decision “gives judges some discretion in sentencing, particularly in cases where a defendant warrants mercy.”

The section of the “three strikes” law in question provides that people face enhanced sentences when they are convicted of a felony after two prior convictions that resulted in state or federal prison sentences of three or more years.


Such a person “shall be considered a habitual criminal and shall be punished by imprisonment in state prison or state correctional facility for such felony for the maximum term provided by law,” according to the law. But it doesn’t explicitly bar probation.

Among other things, the court pointed out the difference between the “habitual criminal” section of the law and a separate section of the law that applies to the sentencing of “habitual offenders,” who have been convicted of a string of three more serious, generally violent crimes. The law explicitly bars probation for those “habitual offenders.”

The court said, quoting a previous opinion, that “when the Legislature intends to bar probation, it knows how to say so explicitly.”


“When the Legislature includes a phrase in one subsection of a statute but not in another, this invites the ‘negative implication’ that the phrase was purposefully excluded,” the court said in a unanimous opinion written by Justice David Lowy.

The court acknowledged its ruling might appear contrary to common sense, offering “a sentencing judge in some cases a Hobson’s choice between probation and a mandatory term of twenty years in prison.”

It invited the Legislature to change the wording. “Should the Legislature decide to do so, it may amend [the section of the law] to bar a judge from imposing probation. It need not look far for how to accomplish this goal,” the court said.

Montarvo appealed after he was sentenced to 20 years in prison under the statute, arguing that the judge was allowed to impose probation. The SJC vacated his sentence and sent the case back to the Superior Court for sentencing.

McGillion said the judge would now have the “opportunity to consider” probation, but she had no prediction on the judge’s ruling.

Martin Finucane can be reached at martin.finucane@globe.com.