What the Massachusetts Legislature Decides in a Criminal Case

The Massachusetts Legislature writes the statutes that police, prosecutors, and judges apply in every criminal case. The Legislature defines statutory offenses and their elements, assigns jurisdiction among the courts, establishes sentencing ranges and limitation periods, and creates statutory procedures for release before trial, dispositions, sealing, and expungement.

Article 30 of the Massachusetts Declaration of Rights establishes separation of powers among the legislative, executive, and judicial departments. The district attorney exercises executive authority over charging and prosecution, while the judge exercises judicial authority over motions, release, pleas, trial rulings, and sentencing. The Legislature establishes the governing law. Each branch must respect the authority that Article 30 assigns to the other two branches.

The Legislature’s Authority Over Criminal Law

Article 30 prohibits the legislative department from exercising executive or judicial power and prohibits the executive and judicial departments from exercising legislative power. Neither a district attorney nor a judge may create a criminal offense or establish its punishment. The Legislature defines most Massachusetts crimes by statute, but Massachusetts courts also recognize a limited number of common-law offenses.

The General Laws codify most permanent statewide criminal statutes, while the Acts and Resolves contain session laws. Chapter 265 defines crimes against the person, chapter 266 defines crimes against property, chapter 90 defines motor vehicle offenses, and chapter 94C defines controlled substance offenses. When no statute provides a punishment, G.L. c. 279, § 5 requires the court to impose a sentence consistent with the Commonwealth’s common usage and practice.

Chapters 276, 277, and 278 govern bail, pleadings, and trials. Chapter 218 governs the District Court and the Boston Municipal Court, including their criminal jurisdiction in § 26 and the clerk-magistrate hearing in § 35A. A single criminal case can depend on provisions from several of those chapters.

G.L. c. 274, § 1 classifies a crime as a felony if it is punishable by death or imprisonment in state prison. All other crimes are misdemeanors. The classification depends on the punishment the statute authorizes, not on the label a police report uses. The page on felonies and misdemeanors in Massachusetts explains the procedural and sentencing consequences of that classification.

The Elements of the Offense

The statute states the elements of the offense. Each element of the offense is a fact the Commonwealth must prove beyond a reasonable doubt before a jury or a judge may find the defendant guilty. A statute that requires knowledge requires the Commonwealth to prove knowledge. A statute that requires a specific value, weight, distance, or relationship requires the Commonwealth to prove that fact.

The district attorney chooses which statute to charge. The judge instructs the jury on the elements of the offense that statute contains. Neither the district attorney nor the judge can add an element of the offense or remove one. Defense counsel reads the statute first. The elements of the offense define what the Commonwealth must prove. Counsel builds the motion to dismiss or the motion for a required finding of not guilty on those elements.

Neighboring subsections often define materially different offenses. Chapter 269, § 10 alone contains the unlicensed carrying of a firearm in subsection (a), a separate offense for carrying a dangerous weapon, and further subsections, each with its own elements of the offense and its own penalty. Defense counsel reads the charged subsection and the neighboring subsections before anything else, because the elements of the offense and the sentence depend on which subsection the Commonwealth charged.

Which Court Hears the Case

The Legislature assigns criminal jurisdiction among the courts. Under G.L. c. 212, § 6, the Superior Court has original jurisdiction over all crimes. G.L. c. 218, § 26 identifies the offenses within the concurrent jurisdiction of the District Court, the Boston Municipal Court, and the Superior Court. A case charging an offense outside the District Court’s final jurisdiction may begin in the District Court by complaint, but the trial must take place in the Superior Court.

Mass. R. Crim. P. 3 provides the procedure for charging an offense by complaint or indictment. A defendant charged in the District Court with an offense outside its final jurisdiction is entitled to a probable-cause hearing unless the Commonwealth obtains an indictment first or the defendant waives that hearing. For an offense within concurrent jurisdiction, the District Court may retain the case, although the prosecutor may seek an indictment.

A judge of the District Court or the Boston Municipal Court cannot impose a state prison sentence. The page on Massachusetts courts, state prison, and the house of correction explains the confinement options available in each court.

Statutory Maximums and Minimums

Criminal statutes ordinarily establish the maximum sentence for each statutory offense. The sentencing judge cannot impose a sentence above the statutory maximum. No plea agreement, sentencing recommendation, verdict, or finding may support a sentence above the authorized maximum. A statutory minimum may further restrict the judge’s discretion. The page on sentencing in the District Court and the Boston Municipal Court explains the dispositions those courts may impose.

Some statutes also provide a minimum term. Whether the defendant must serve that term depends on the words of the particular statute. A term phrased “not less than” a number of years does not, by itself, bar suspension or probation. In Commonwealth v. Lightfoot, 391 Mass. 718, 721 (1984), the Supreme Judicial Court relied on the express language of G.L. c. 272, § 7, which bars suspension of the sentence and bars eligibility for probation, parole, and furlough. The defendant had to serve the full two years because of that express language, not because of the minimum term standing alone.

G.L. c. 269, § 10(a) contains a mandatory minimum. The statute provides a state prison term of not less than two and one-half years nor more than five years, or a house of correction term of not less than eighteen months nor more than two and one-half years. Section 10(a) further provides that the sentence “shall not be reduced to less than 18 months, nor suspended.”

Section 10(a) also provides that no person convicted under it “shall be eligible for probation, parole, work release, or furlough or receive any deduction from his sentence for good conduct” until eighteen months have been served. A defendant convicted under § 10(a) must serve the eighteen months because of that express language, not because of the phrase “not less than.”

A defendant charged with a mandatory-minimum offense must serve the minimum only if the case ends in a conviction under the qualifying provision. The case may instead end in dismissal, a nolle prosequi, an acquittal, or a verdict or plea to another offense. The district attorney decides whether to offer a plea to a lesser charge. A judge cannot accept a plea to a reduced charge over the Commonwealth’s objection.

Criminal Statutes of Limitations

The Legislature determines how long the Commonwealth has to bring a charge. Under G.L. c. 277, § 63, an indictment for murder may be found at any time after the death. An indictment or complaint for the sexual offenses the section lists may also be found at any time, but an indictment or complaint filed more than 27 years after the offense must be supported by independent evidence corroborating the victim’s allegation.

Section 63 also establishes 15-year and 10-year limitation periods for other offenses it names, including several assaults in chapter 265. An indictment for any other crime must be found and filed within six years after the crime was committed. Any period during which the defendant was not usually and publicly a resident of the Commonwealth is excluded from the calculation.

A complaint or indictment filed after the limitation period expired is subject to dismissal on the defendant’s motion. The district attorney cannot extend the period. The judge cannot shorten the period.

Statutory Dispositions

The Legislature has created several alternatives to a conviction after trial. In the District Court and the Boston Municipal Court, statutory examples include a continuance without a finding, pretrial probation, diversion, and the driver alcohol education program disposition under G.L. c. 90, § 24D.

Under G.L. c. 278, § 18, a defendant in the District Court, the Boston Municipal Court, or the Juvenile Court may tender a plea or an admission with a request for a continuance without a finding. The judge continues the case to a specific date. If the defendant complies with the conditions, the judge dismisses the charge on that date.

The judge may allow a continuance without a finding over the Commonwealth’s objection unless a statute prohibits that disposition for the charged offense. The Legislature wrote both the statute that allows the disposition and the statutes that exclude particular offenses. For an excluded offense, the judge cannot allow a continuance without a finding on that charge.

Under G.L. c. 276, § 87, the Superior Court, any District Court, and any Juvenile Court may place a defendant on probation, with the defendant’s consent, before trial and before a plea of guilty. That disposition is known as pretrial probation. Under G.L. c. 276A, § 2, the District Court and the Boston Municipal Court may divert an eligible first-time defendant, charged with an offense within the District Court’s final jurisdiction, to a program instead of prosecution.

Under G.L. c. 90, § 24D, an eligible person charged with or convicted of operating under the influence may consent to probation for up to two years and must complete a driver alcohol education program. The court may also require alcohol or controlled-substance treatment. A person charged with a first offense is generally eligible. A person with a single prior conviction or program assignment for a like offense that occurred 10 years or more earlier is also eligible, once in the person’s lifetime. The section does not apply when the person caused serious personal injury or death during the events underlying the charge. The OUI and motor vehicle pages explain that disposition and its license consequences.

A judge may order each of those dispositions only on the terms the statute provides. No judge can allow, and no prosecutor can agree to, a disposition for an offense the Legislature has excluded from that disposition.

Release Before Trial

The Legislature wrote the rules a judge applies at arraignment. Under G.L. c. 276, § 58, the judge admits a person to bail on personal recognizance unless release on personal recognizance will not reasonably assure the person’s appearance. Section 58 lists the factors the judge weighs. The section also requires written or recorded findings when the bail amount the judge sets is likely to result in long-term pretrial detention because the person cannot pay that amount.

Chapter 163 of the Acts of 2026, effective August 5, 2026, added a narrowly defined final order of removal to the factors a judge weighs under G.L. c. 276, § 58 in deciding whether the person will appear in court. The new factor applies only when the alleged conduct involves a felony and the statute’s conditions concerning appeal, a stay or order of supervision, and active execution of the removal order are satisfied. The post on Chapter 163 and noncitizens in criminal cases explains the amendment, while the Massachusetts bail page addresses § 58 more broadly.

Under G.L. c. 276, § 58A, the Commonwealth may move to detain a defendant before trial as dangerous, but only for the offenses the section lists. A felony that includes, as an element of the offense, the use, attempted use, or threatened use of physical force against another person qualifies. A felony that by its nature involves a substantial risk that physical force may result also qualifies. Only the Legislature can add an offense to that list. A judge cannot hold a dangerousness hearing on a charge that is not on the list.

The Clerk-Magistrate Hearing

G.L. c. 218, § 35A gives a person the opportunity to contest an application for a criminal complaint before the clerk-magistrate issues the complaint. A person who is not under arrest and against whom a misdemeanor complaint is sought is entitled to notice and an opportunity to be heard. The same opportunity applies to a felony application received from a law enforcement officer who requests the hearing. A clerk-magistrate may conduct a hearing on a felony application from a private applicant.

The Legislature also wrote the exceptions. A clerk-magistrate may issue the complaint without a hearing where there is an imminent threat of bodily injury, of the commission of a crime, or of flight from the Commonwealth. Notice is not required where the police have already issued a citation under G.L. c. 90C. The Supreme Judicial Court has held that the right to the hearing is statutory rather than constitutional. Cabrera v. Commonwealth, 496 Mass. 179 (2025). The Legislature therefore could narrow or repeal the right to the hearing.

The clerk-magistrate hearing page covers who receives a hearing. The page on what happens at a clerk-magistrate hearing describes the proceeding step by step.

Sealing and Expungement of the Record

The Legislature establishes the eligibility rules and standards for sealing. Under G.L. c. 276, § 100A, the Commissioner of Probation seals an eligible conviction record after the applicant satisfies the statutory requirements. The waiting period is not less than three years for a misdemeanor and not less than seven years for a felony. The period begins when the case ends or, if the person was incarcerated, when the incarceration ends. The applicant must also have no new conviction during that period. For certain sex offenses the period is 15 years.

Under G.L. c. 276, § 100C, the Commissioner of Probation automatically seals a record ending in a finding of not guilty, a no bill, or a finding of no probable cause unless the defendant asks in writing that the record remain unsealed. For a case that ended in a nolle prosequi or a dismissal, the judge decides whether substantial justice supports sealing the record. The pages on sealing and expungement standards and how to seal or expunge a Massachusetts criminal record explain the procedures.

Expungement destroys the record rather than sealing it. A judge may order expungement only for the categories the Legislature listed in G.L. c. 276, §§ 100E through 100U. G.L. c. 6, § 172 defines what an employer, a landlord, or a licensing board may see of a sealed or unsealed record. The page on what shows up on a Massachusetts CORI check explains those access rules.

When the Legislature Changes the Law

Two rules apply when the Legislature changes a criminal statute after the conduct occurred or while a case is pending.

Article 24 of the Declaration of Rights provides that laws “made to punish for actions done before the existence of such laws, and which have not been declared crimes by preceding laws, are unjust, oppressive, and inconsistent with the fundamental principles of a free government.” The Legislature cannot make past conduct a crime after the fact. The Legislature also cannot increase the punishment for conduct already committed.

A defendant who is already charged does not automatically benefit when the Legislature repeals or decriminalizes the charged offense. Under G.L. c. 4, § 6, Second, the repeal of a statute “shall not affect any punishment, penalty or forfeiture incurred before the repeal takes effect, or any suit, prosecution or proceeding pending at the time of the repeal for an offence committed” under the repealed statute. A pending prosecution continues under the old law unless the new act states otherwise. Whether a charged defendant benefits from the change therefore depends on what the new act provides. A judge can also treat one defendant’s misdemeanor charge as a civil infraction under G.L. c. 277, § 70C, as the firm’s page on how to keep a criminal charge off your record explains.

Chapter 65 of the Acts of 2026 made possession of three ounces or less of marijuana a civil offense effective April 19, 2026. G.L. c. 276, § 100K 1/4 creates a separate expungement procedure for certain marijuana records tied to the 2008, 2016, and 2017 decriminalization acts, but the section does not name Chapter 65. Chapter 65 therefore does not by itself make a marijuana record eligible for the § 100K 1/4 procedure.

G.L. c. 276, § 100K(a)(2) separately permits a court to expunge a record when clear and convincing evidence shows that the conduct was an offense when the record was created but is no longer a crime, unless the elements remain criminal under a different designation. The judge may order or deny expungement under § 100K(a)(2). The judge must also find that expungement serves the best interests of justice. A person seeking expungement of a marijuana record after Chapter 65 must meet the requirements of the provision that applies to that record rather than assume that the mandatory § 100K 1/4 procedure applies.

What the Legislature Cannot Do

Article 30 forbids the legislative department from exercising judicial or executive power. The Legislature cannot decide a pending case, cannot direct a judge to decide a case in a particular way, and cannot order the district attorney to charge or to decline to charge a particular defendant. The Legislature writes the rule that the judge applies and that the district attorney chooses whether to invoke in a particular case.

The Legislature also cannot enact a criminal statute that violates the Declaration of Rights or the United States Constitution. A law that punishes past conduct may violate Article 24. A law may also be unconstitutional if it is impermissibly vague, punishes protected speech, or authorizes a search that Article 14 prohibits. A defendant ordinarily challenges an unlawful search in a motion to suppress and challenges the validity of the charged statute, on its face or as applied, in a motion to dismiss.

Who Makes Each Decision

The Legislature defines statutory offenses and their elements, classifies crimes, establishes authorized penalties, assigns court jurisdiction, and creates statutory procedures for release before trial, dispositions, and criminal records. The district attorney decides whether and how the Commonwealth will prosecute a particular case. The judge rules on motions and other legal questions, accepts or rejects a plea, and imposes a sentence or other disposition the statute allows. In a jury trial, the jury decides whether the Commonwealth proved the charge beyond a reasonable doubt.

The Massachusetts criminal process page explains when those decisions arise, from a clerk-magistrate hearing through trial and appeal.

Where These Statutes Are Applied

Attorney Joe Serpa defends criminal cases under these statutes in the District Court, the Boston Municipal Court, and the Superior Court in Suffolk, Norfolk, Middlesex, Essex, Worcester, and Bristol counties. The Massachusetts court-location pages identify the District Court divisions in those counties, and the Boston Municipal Court page explains that court’s divisions and jurisdiction.

To discuss a Massachusetts criminal case, contact Serpa Law Office at 617.936.0201.