Article 26 of the Massachusetts Declaration of Rights, which prohibits “cruel or unusual punishments,” is arguably broader in scope than its federal counterpart, the Eighth Amendment to the United States Constitution. In addressing constitutional challenges to the length of incarceration sentences, the Massachusetts Supreme Judicial Court utilizes essentially the same test under Article 26 as the United States Supreme Court does under the Eighth Amendment. Among other considerations, the tests compare the subject sentence of a crime to the potential sentences for more serious crimes within the same jurisdiction, as well as to the prescribed sentences for the same crime in other states. This is an unduly restrictive analysis, however. A comparison of merely theoretical sentences under analogous statutes sheds no light on whether an imposed sentence is, in reality, excessively long. Instead, Massachusetts appellate courts should compare the subject sentence to sentences actually imposed for comparable crimes both within and outside of the jurisdiction. Only then can a court accurately gauge whether a particular sentence of incarceration is actually “unusual.” The limitations of the current approach can be appreciated by considering a hypothetical case involving statutory rape, which is a potential life felony in Massachusetts.
Thomas H. Townsend, CRIMINAL LAW/CONSTITUTIONAL LAW—ARTICLE 26 OF THE MASSACHUSETTS DECLARATION OF RIGHTS: THE SUPREME JUDICIAL COURT’S “CRUEL” AND “UNUSUAL” NEGLECT OF ITS LONGEVITY COMPONENT, 41 W. New Eng. L. Rev. 55 (2019), https://digitalcommons.law.wne.edu/lawreview/vol41/iss1/3