What the Massachusetts Legislature Decides in a Criminal Case

Most of what governs a Massachusetts criminal case was decided before anyone walked into a courthouse. The Legislature wrote the criminal statute that names the offense and the elements of the offense. The same statute fixes the maximum sentence and, in some cases, a minimum the judge cannot go below. Other criminal law legislation decides which court hears the case, which dispositions exist, and when the record can be sealed.

Article 30 of the Declaration of Rights places that power in the legislative department. The district attorney and the judge exercise their own powers within the limits the criminal statutes set. The page on what a Massachusetts district attorney can and cannot decide covers the executive decisions. The page on what a Massachusetts judge can and cannot decide covers the judicial ones. The page on how criminal cases get dismissed covers the motion practice through which those decisions are contested in the District Court and the Boston Municipal Court.

This page covers the legislative decisions. It takes each one in turn, from the definition of the crime to the sealing of the record. It then states what each decision means for a defendant with a pending criminal case.

The Legislature’s Authority Over Criminal Law

Article 30 states that “the legislative department shall never exercise the executive and judicial powers, or either of them.” The same article bars the executive and judicial departments from exercising legislative power. Neither a district attorney nor a judge can create an offense or fix a penalty for one. A criminal offense in Massachusetts therefore exists because the Legislature enacted a statute defining it and fixing a punishment for it.

Every criminal statute is part of the General Laws of Massachusetts, the complete body of the Commonwealth’s statutory law. Within the General Laws, chapter 265 defines the crimes against the person. Chapter 266 defines the crimes against property. Chapter 90 defines the motor vehicle offenses, including operating under the influence. Chapter 94C defines the controlled substance offenses.

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 turn on provisions from several of those chapters.

The Legislature also drew the line between the two classes of crime. Under G.L. c. 274, § 1, “a crime punishable by death or imprisonment in the state prison is a felony. All other crimes are misdemeanors.” The classification follows the punishment the statute authorizes, not the label a police report uses. The page on felonies and misdemeanors in Massachusetts covers what follows from the 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 proof of 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 can add an element of the offense or remove one. Defense counsel reads the statute first, because the elements of the offense decide what evidence matters and what a motion to dismiss or a motion for a required finding of not guilty can argue.

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 ones beside it before anything else, because the wrong subsection changes both the elements of the offense and the sentence.

Which Court Hears the Case

The Legislature decided which court department hears which offenses. Under G.L. c. 212, § 6, the Superior Court has original jurisdiction of all crimes. Under G.L. c. 218, § 26, the District Court and the Boston Municipal Court have original jurisdiction, concurrent with the Superior Court, over all misdemeanors except libels. The same section gives the District Court and the Boston Municipal Court jurisdiction over all felonies punishable by imprisonment in the state prison for not more than five years, together with the offenses the section enumerates.

A felony carrying a state prison term above five years must be prosecuted in the Superior Court unless G.L. c. 218, § 26 names it among the offenses the District Court and the Boston Municipal Court may also hear. Under Mass. R. Crim. P. 3, a defendant charged with an offense punishable by imprisonment in the state prison has the right to be proceeded against by indictment. The district attorney decides whether to seek one. The Legislature decided which offenses carry that right.

The statute therefore fixes, before the first court date, whether a charge can stay in the District Court or the Boston Municipal Court or must go to the Superior Court. Where the statute allows the District Court and the Superior Court to hear the same offense, the district attorney chooses the court. A judge of the District Court or the Boston Municipal Court cannot impose a state prison sentence. The page on the courts, the state prison, and the house of correction covers what each court can impose.

The Maximum, the Minimum, and the Mandatory Minimum

Every criminal statute fixes the maximum sentence for the offense it defines. That maximum binds the judge at sentencing. No plea agreement, no sentencing recommendation, and no finding at trial can carry a sentence above it. The judge’s discretion runs from zero, or from the statutory minimum where one exists, up to that maximum. The sentences available in the District Court and the Boston Municipal Court are covered on their own page.

Some statutes also fix 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 read the express language of G.L. c. 272, § 7 barring suspension and barring eligibility for probation, parole, and furlough. That express language, not the minimum term standing alone, made the two years a term the defendant had to serve.

Chapter 269, § 10(a) contains a true 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. It then states that the sentence “shall not be reduced to less than 18 months, nor suspended.”

The same subsection adds 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. That express language, not the phrase “not less than,” makes the minimum mandatory.

A mandatory minimum changes three things for a defendant. The judge cannot go below it, whatever the mitigation. The prosecutor’s charging decision controls whether it applies at all, because the minimum attaches to the statute charged and not to the conduct. A plea to a lesser offense that carries no minimum then becomes the only way to avoid it. The district attorney controls that decision. A judge cannot impose that plea over the Commonwealth’s objection.

The Time Within Which the Commonwealth Must Charge

The Legislature also decided 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 one filed more than 27 years after the offense must be supported by independent evidence corroborating the complainant.

The section fixes fifteen year and ten year 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 count.

A complaint or indictment filed outside the period the statute fixes is subject to dismissal on motion. The district attorney cannot extend the period. The judge cannot shorten it.

The Dispositions the Legislature Created

A criminal case can end in ways other than a conviction or an acquittal only because a statute created the alternative. Four of them matter most in the District Court and the Boston Municipal Court: the continuance without a finding, pretrial probation, diversion, and the first-offense disposition for operating under the influence 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 continuance runs to a date certain. If the defendant complies with the conditions, the judge dismisses the charge on that date.

The judge may allow that request over the Commonwealth’s objection unless a statute prohibits the disposition for the offense. The Legislature wrote both the disposition and the exception. Where a statute excludes an 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, a person charged with a first offense of operating under the influence may, with consent, be placed on probation for up to two years with an alcohol or controlled substance education program. The section is also available where the only prior like offense, and any program assigned for it, came 10 years or more before the date of the new offense. The OUI and motor vehicle pages cover that disposition and its license consequences.

Each of those dispositions exists in the form the statute gives it. Where the Legislature has excluded an offense from a disposition, no judge and no prosecutor can restore it.

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. The section lists what the judge weighs and requires written or recorded findings where the amount set is likely to result in long-term pretrial detention because the person cannot pay it.

The Legislature can add to that list at any time. Chapter 163 of the Acts of 2026 added a final order of removal to the appearance factors in § 58, effective August 5, 2026. The changes Chapter 163 made for a noncitizen in a criminal case are covered in their own post. The bail page covers § 58 in full.

Under G.L. c. 276, § 58A, the Commonwealth may move for pretrial detention on dangerousness, but only for the offenses the section enumerates. A felony that includes, as an element of the offense, the use, attempted use, or threatened use of physical force against another person qualifies. So does a felony that by its nature involves a substantial risk that physical force may result. The Legislature wrote that list. Only the Legislature can add an offense to it. A judge cannot hold a dangerousness hearing on a charge outside it.

The Clerk-Magistrate Hearing

The hearing that lets a person contest a criminal complaint before it issues is a creature of statute. Under G.L. c. 218, § 35A, a person not under arrest against whom a misdemeanor complaint is sought is entitled to notice and an opportunity to be heard before process issues. The same opportunity applies to a felony application received from a law enforcement officer who requests the hearing. A felony application from a private applicant is heard at the discretion of the clerk-magistrate.

The Legislature also wrote the exceptions. The hearing is not required 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 a citation under G.L. c. 90C has already been issued. The Supreme Judicial Court has held that the right is statutory rather than constitutional. Cabrera v. Commonwealth, 496 Mass. 179 (2025). Because the right is statutory, the Legislature could narrow it or repeal it.

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

A statute, not a judge, decides whether a criminal record can be sealed and when. Under G.L. c. 276, § 100A, a person may ask the commissioner of probation to seal a conviction record once the required time has passed. The period is not less than 3 years for a misdemeanor and not less than 7 years for a felony. It runs from the disposition or the end of any incarceration, with no intervening conviction. Certain sex offenses carry a 15 year period.

Under G.L. c. 276, § 100C, a record ending in a finding of not guilty, a no bill, or a finding of no probable cause is sealed automatically unless the defendant asks in writing that it not be. Where a nolle prosequi or a dismissal has been entered, the court may order the record sealed where substantial justice would best be served. The pages on sealing and expungement standards and on how to seal or expunge a Massachusetts criminal record cover the procedure.

Expungement, which destroys the record rather than sealing it, exists only for the categories the Legislature listed in G.L. c. 276, §§ 100E through 100U. G.L. c. 6, § 172 fixes what a sealed or unsealed record shows to an employer, a landlord, or a licensing board. The page on what shows up on a Massachusetts CORI check covers those tiers.

When the Legislature Changes the Law

Two rules govern what a new criminal statute does to conduct that has already occurred and to cases already 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. It cannot increase the punishment for conduct already committed.

A repeal or a decriminalization does not automatically benefit a defendant who is already charged. 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 says otherwise. Whether a defendant benefits from a change is therefore a question of what the act itself provides.

Chapter 65 of the Acts of 2026 made simple possession of marijuana through three ounces a civil offense rather than a criminal one. The expungement provision for decriminalized marijuana offenses, G.L. c. 276, § 100K 1/4, names the 2008, 2016, and 2017 acts and was not amended to add Chapter 65. A person with an older possession conviction for an amount the new act treats as civil does not receive expungement under that section on the strength of Chapter 65 alone.

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 one in a particular way, and cannot order the district attorney to charge or to decline 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 statute that punishes past conduct violates Article 24. A statute that is too vague to give notice of what it forbids, or that punishes protected speech, or that permits a search Article 14 prohibits, is one a judge may decline to apply. That review belongs to the judicial branch. Defense counsel raises it in a pending criminal case by a motion to dismiss.

Who Makes Each Decision

The Legislature defines the offense and the elements of the offense, classifies the offense as a felony or a misdemeanor under G.L. c. 274, § 1, and fixes the maximum sentence and any minimum. It decides which court department has jurisdiction under G.L. c. 212, § 6 and G.L. c. 218, § 26.

The Legislature creates each alternative disposition. It writes the bail factors in G.L. c. 276, § 58 and the offense list in § 58A. It creates the clerk-magistrate hearing in G.L. c. 218, § 35A and sets the sealing periods in G.L. c. 276, § 100A.

The district attorney decides which statute to charge, whether to seek an indictment, whether to enter a nolle prosequi, and what plea to offer. Those decisions are set out on the district attorney page.

The judge decides the motions, sets release, accepts or rejects the plea, and imposes the sentence within the range the statute provides. Those decisions are set out on the judge page. The stages of a Massachusetts criminal case, from the clerk-magistrate hearing to trial and appeal, are set out on the criminal process hub.

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 district courts of those counties each have their own page. The Boston Municipal Court has its own page.

Serpa Law Office can be reached at 617.936.0201.