IF CRIME IS DOWN, WHY ARE MASS. PROSECUTORS SO BUSY?

Crime has plummeted, but Massachusetts prosecutors are as busy as ever.

Just look at the superior court docket. Since 1990, reported crimes are down
more than one-third. Meanwhile, Boston's Suffolk County district attorney's
staff has remained strong with 125 attorneys, and the number of felony
defendants brought before court has remained fairly steady.

How's that? The district attorney's office says it's because prosecutors are
at last able to address cases they should have been looking at all along --
but never had the time. But many state judges and attorneys have a different
theory. They say district attorneys are "bumping up" relatively minor
charges for criminal defendants and sending them to superior court, which
carry heavier sentences than in the lower courts. The result, critics say,
is criminals are getting hit with punishments that exaggerate the crime.

"Crime is down," says Denise Regan, lead attorney for Boston's trial unit of
the Committee for Public Counsel Services, the state's public-defender
agency. "The district attorney has time to target less serious crime. It's
something we regret seeing because it does put our clients in jeopardy with
harsher punishments."

Charges such as drugs possession, domestic violence, assault and child abuse
that previously were handled by lower courts are making their way into
superior court, say critics of the district attorney's office. "They've
swept with a very big broom," Ms. Regan says.

Ralph C. Martin, Suffolk County's district attorney, doesn't apologize for
his agency's tough stance on crime. He denies his agency is bringing cases
to court that don't belong there and says his office is paying more
attention to certain crimes.

"No one here is looking to put someone away and blow something out of
proportion," Mr. Martin says. He says he'd like to see statistics proving
his office is "bumping up" charges, "rather than the suggestion that some of
this is make-work and there's not enough other business going around and
we're twiddling our thumbs."

Superior court, which has mandatory minimum sentences, generally hears only
the most serious offenses, such as rape and murder. Massachusetts carries
mandatory minimum sentences for crimes including murder, trafficking certain
kinds of drugs, and second offenses for drug possession. The district courts
usually handle less-serious cases, from traffic tickets to first-time
assaults, and have less strict sentencing. Where a case is heard is at the
discretion of the district attorneys, who can file charges in the court of
their choice.

Both district attorneys and public defenders agree some cases fall in the
middle. But Page Kelley, who heads the public defender's Cambridge office,
says filing more cases in the higher court is "a waste of the superior
court's time" because it requires more hearings and motions than a district
court. Ms. Kelley says district courts are set up to process less-serious
cases much more quickly, with a smaller jury, than the superior courts.

For similar reasons, "judges are complaining that they are seeing smaller
cases," says Judge Suzanne DelVecchio, Superior Court chief. There's little
judges can do, Judge DelVecchio says, because "district attorneys are
completely in control" of where cases go.

In some cases, superior-court judges say their hands are tied when it comes
to bringing down tougher sentences than necessary. For example, a defendant
charged with selling heroin in district court can get a sentence of
probation to a maximum 2 1/2 years in a house of correction, which is like a
county jail. However, the same defendant in superior court faces a minimum
of five years in state prison or more, depending on the amount of drugs.

Superior Court Judge Carol S. Ball says she's hard-pressed to criticize the
district attorney for getting tough on crime, though she says she has talked
to district attorneys about cases she feels belong in lower court. "There's
a case or two where I wish I had more discretion," she says.

Judge Ball says a classic example is when a girlfriend of a drug dealer is
indicted for selling a large amount of cocaine. Often, the girlfriend is a
first-time offender with young children who is found with drugs at her home.
Eventually, she is sentenced to a mandatory 10 years in state prison with
her children put in foster care. "I'm not saying those women shouldn't have
to do time," Judge Ball says. "But 10 years, that's a long time."

Not every judge finds the trend to be troublesome. Judge Raymond G. Dougan
says sometimes district court judges don't feel they have the power to be
tough enough so some cases would be better handled in superior court. "If
the case stays in the district court, the judges in this court are limited"
in their sentences, says Judge Dougan of Boston Municipal Court, which has
jurisdiction similar to a district court. (District court judges aren't held
to mandatory minimums, but they are limited in the maximum sentence they can
hand down: 2 1/2 years for a single offense.)

Mr. Martin, the district attorney, explains it this way: Crime has gone down
and his office is sending a steady level of felony defendants to court. In
court, his office doesn't look to target crimes as singular events. Instead,
he says, it tries to show the court "the impact this particular defendant
has had on the community."

Mr. Martin says his office also is taking certain crimes more seriously,
particularly domestic violence and child abuse. Since Mr. Martin's tenure
began seven years ago at Suffolk County, home to Boston and one of the
busiest crime counties, his office created a unit of eight attorneys for
domestic-violence cases. He also added staff to the child-abuse unit. "Most
people don't know that 15% of our indictments" involve domestic violence and
child abuse, he says, compared with "hardly any" such cases eight or 10
years ago. "Why?" Mr. Martin asks. "We and the police departments and the
medical establishment have created more capacity to handle these cases and
more awareness of how to report them."

Criminal-defense attorney Tom Hoopes of Perkins, Smith & Cohen LLP in Boston
agrees that child abuse always belongs in superior court, but says domestic
violence "almost never belongs there." Mr. Hoopes says most
domestic-violence cases involve heated arguments and don't warrant a
superior-court indictment. Domestic cases involving real violence are
"statistically insignificant," he says.

For some offenses in which mandatory minimum sentences aren't in place,
superior-court judges have taken to light sentencing, such as probation.
Superior Court Judge Maria Lopez admits to having a "soft touch" when it
comes to sentencing. She estimates that 25% to 30% of her cases don't belong
in her court. According to Judge Lopez, "judges will say, `You know, they
don't seem to be the kinds of criminals the superior court should have.'"