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Am I Going to Jail?

By Kevin R. Collins, Esq.

February 2022


After people are arrested or charged with a crime, one of the most common questions they have is, “Am I going to jail?”  Spending any time in jail is an unpleasant experience, to say the least.  The prospect of spending a significant amount of time in custody, however, has far-reaching consequences.  People can lose their jobs, housing, or custody of their children.  Physical and mental health is often compromised when a person is locked up.  Family members often feel harsh effects of the separation from the person in custody.  The following article helps break down the approach a judge and a prosecutor may take to determine if a person will serve jail time or not.

First, it is important to understand the terms discussed in this article.

Jail v. Prison

While the terms “jail” and “prison” are often used interchangeably, it is a common misconception that they refer to one and the same location.

In Massachusetts, crimes are divided between felonies and misdemeanors.  The difference between these two types of crimes is how they may be sentenced.  Misdemeanors are less serious crimes, often with a maximum punishment of one year in jail.  A jail in Massachusetts is often referred to as the House of Corrections.  Felonies are more serious crimes and sentences are served in a State Prison.


When people are charged with a crime, it is important to distinguish whether they face a misdemeanor or a felony charge because that will help determine the likelihood of their sentence being served in custody and also where that time may be served.

District Court v. Superior Court

In Massachusetts, criminal cases are heard in District Court and Superior Court.  It can be difficult to determine which court will hear a case.  District Courts hear cases that are both misdemeanors and felonies.  District Court judges are limited in how much they can sentence a person to, however.  Two and a half years is the maximum sentence a District Court judge can impose.  In Superior Court, judges can sentence a person to prison time, from a term of years all the way up to life in prison.

Felony cases may originate in the District Court and then proceed to the Superior Court by way of a Grand Jury indictment.  Many felonies do not proceed this way, however, and are prosecuted entirely in District Court.

Certain very serious felonies can only be prosecuted in Superior Court.  These may begin in District Court but, according to Massachusetts law, they must later be transferred to the Superior Court.

Whether a case proceeds in District or Superior Court has a significant impact on whether defendants will serve time in custody and how much time they may face.

The Specific Crime Alleged Matters

When a judge is determining what sentence defendants should receive, the crime they are charged with is the first consideration.  A general rule of thumb is that the more serious the crime, the greater likelihood that a person will receive jail time as part of a sentence.


Many crimes have more than one sentencing scheme based on the severity of the facts of the case.

A crime like larceny, for example, can be charged as either a misdemeanor or a felony, depending on the value of the property alleged to have been stolen.  If the amount is under $1,200, larceny is considered a misdemeanor offense.  If the property taken exceeds $1,200, the charge is considered a felony.

The punishment for Larceny Under $1,200 is up to 1 year in jail, or a fine up to $300.  Larceny Over $1,200 carries a jail sentence up to 2 years, or up to 5 years in state prison, and/or up to a $25,000 fine.  Clearly the difference between these two larceny charges is significant when it comes to sentencing.

Assault and battery is also a charge that can be considered a misdemeanor or a felony.  Simple assault and battery, for example, is a misdemeanor offense with a maximum penalty of two and a half years in jail or up to a $1,000 fine.

If there are aggravating circumstances as part of the assault and battery, Massachusetts law considers the crime a felony. M.G.L. ch. 265, sec. 13A lists potential aggravating circumstances as:

  1. Assault and battery that results in serious bodily injury to the victim,
  2. A victim who is pregnant, and the defendant knew or had reason to know she was pregnant, or
  3. A victim who has an active restraining order against the defendant.

If any of these circumstances exist, then the offense is elevated from a misdemeanor to a felony with a maximum penalty of 5 years in state prison, a $5,000 fine, or both.

Mandatory Minimums May Affect The Sentence

Some criminal charges in Massachusetts have mandatory minimum sentences which means that no matter what circumstances surround the case, no matter how sympathetic a judge may feel towards a defendant, the law requires that a conviction result in a mandatory minimum sentence.

Behind bars

For example, someone found driving while his or her license is suspended by the Registry of Motor Vehicles (RMV) will often face a short period of probation, a small fine, or sometimes the case may even be dismissed.

Someone found driving while his or her license was suspended for an Operating Under the Influence (OUI) conviction, however, faces a mandatory minimum punishment of 60 days in jail.

Someone who faces his or her first OUI charge is unlikely to be sentenced to jail time.  A person accused of a third OUI charge, however, faces a mandatory minimum 180 days in jail.

It is important to work with an attorney who understands the sentencing scheme of the particular crime and whether a mandatory minimum sentence may be a part of the case.

Prior Convictions Matter

Another factor that will play a role in determining a sentence is whether a person has prior convictions. Individuals with criminal convictions of any kind will be considered differently than those with no criminal record and may face jail time as a result.  Similarly, individuals with prior convictions of the same type as the current charge are more likely to receive a jail sentence than those without like priors.

Perhaps the strongest factor weighing in favor of a jail sentence is if a person has served jail time before.  If this is the case, a judge is more likely to sentence that defendant to jail on this occasion.

The Victim’s Input Matters


In cases that involve victims, their input will be heavily considered by a judge when determining a person’s sentence.  According to Massachusetts law, victims are entitled to make an “Impact Statement” in either written form or by live testimony.  Victims are allowed to explain to the judge what the case has meant to them personally, and explain any injuries they received, physical or financial.  If a victim provides a compelling statement, it may influence a judge to enhance a person’s sentence.

On occasion, a victim may support a non-jail sentence, and judges will consider those wishes in their decision as well.

Personal Factors Matter

The final decision made by a judge may be swayed by personal and extraneous factors specific to the defendant’s life.  If the defendant has children, for example, and no one else is available to care for their needs, a judge might display leniency and avoid sentencing the defendant to jail.

If a person has complicated medical needs that cannot be adequately met in custody, a judge may order home detention, so that the defendant does not suffer needless deterioration in health.

Finally, if defendants have a job with good pay or benefits and they are solely responsible for financially supporting their family, a judge may consider avoiding jail time as part of the sentence.

A Good Attorney Can Help You Avoid Jail

Argue with Judge

Having an attorney who understands all of the factors that go in to your defense and what a judge will consider when sentencing is critical to avoiding serving jail time.

Kevin R. Collins is a seasoned litigator with extensive experience in criminal law cases.  Prior to working as a criminal defense attorney, Attorney Collins served as an Assistant District Attorney with the Middlesex District Attorney’s Office in Massachusetts, prosecuting cases in both District and Superior Court.

Attorney Collins is experienced in all phases of criminal cases and will work relentlessly to ensure that you avoid jail time in your case.

Contact Attorney Kevin R. Collins for a free consultation today.

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I highly recommended Kevin Collins. Kevin is the utmost professional. He promptly came to my side and applied his experience and knowledge to help me with my case. I don’t know where I’d be without his expert guidance...

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Attorney Collins was the toughest and most intelligent district attorney I ever faced. He now brings his skill to the other side of the aisle as a defense attorney. You could do no better than to hire him.

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