Categorically Counterintuitive: Pre-Trial Imprisonment Based on Dangerousness

by Reyna M. Ramirez

Case Focus

Dangerousness hearings have huge stakes for defendants: if the Commonwealth proves by clear and convincing evidence that there are no conditions that can assure the safety of the community, a defendant can be incarcerated for up to 120 days in a district court case, or 180 days in a Superior Court case. G.L. c. 276, § 58A. However, pretrial detention based on “dangerousness” is counter-balanced by the presumption of innocence that undergirds our entire criminal justice system, and criminal defendants have recently mounted successful challenges to certain applications of the statute.  This article reviews the challenges, the Supreme Judicial Court’s rulings, and responsive proposed legislation.

“Dangerousness” Hearings Under G.L. c. 276, § 58A

Under General Laws c. 276, § 58A, a court may order pretrial detention of a criminal defendant if the prosecution shows, by clear and convincing evidence, that no conditions of release will reasonably assure the safety of any other person or the community. But the Commonwealth can seek such pretrial detention only if the defendant is charged with: (a) one of several predicate enumerated crimes; (b) a misdemeanor or felony that involves “abuse” (the “abuse clause” of § 58A); (c) a felony that has as an element the use, attempted use, or threatened use of physical force against another (the “force clause”); or (d) a felony that, by its nature, involves a substantial risk that physical force against the person of another may result (the “residual clause”).

The abuse clause defines “abuse” with reference to the definition of abuse contained in Chapter 209A, that is, where the charged crime is against the defendant’s “family or household member,” including somebody who is or has been in a substantive dating or engagement relationship with the defendant, and involves: 1) attempting or causing physical harm; 2) putting others in fear of imminent serious physical harm; or 3) causing another to participate in sexual relations involuntarily through force, threat, or duress (i.e., rape).

The force clause focuses on whether the elements of the charged offense involve the use of force. A “categorical approach” is used to determine whether a non-enumerated felony qualifies as a predicate under the force clause. Commonwealth v. Young, 453 Mass. 707, 712 (2009). This approach assesses the elements of the felony “independent of the particular facts giving rise to a complaint or indictment.” Id. In other words, to determine whether a charge qualifies as a predicate under the force clause, the court asks not whether the defendant’s conduct involved the use of force, but rather whether the elements of the crime necessarily always involve the use of force.

Finally, the residual clause asks whether a felony “by its nature, involves a substantial risk that physical force against the person of another may result.” G. L. c. 276, § 58A.

Commonwealth v. Barnes / Scione v. Commonwealth

In January 2019, the Supreme Judicial Court ruled on the consolidated appeals of David Barnes and William Scione, each of whom had been detained following a finding of dangerousness under § 58A. Scione v. Commonwealth, 481 Mass. 225 (2019). Barnes was charged with statutory rape in violation of G.L. c. 265, § 23A, based on an allegation that he had sexual intercourse with a 15-year-old girl at a hotel after the two met online. Scione, on the other hand, was charged with using an incendiary device in violation of G.L. c. 266, § 102A, based on an allegation that he created a homemade improvised explosive device and placed it at the bottom of the driveway of his former girlfriend’s home (the record indicated that the device could have caused serious harm if it had not failed to explode). Neither of the charged crimes is an enumerated predicate charge under § 58A.

The SJC first ruled that statutory rape under § 23A is not a predicate charge under the force clause. Using the required categorical approach to analyze the elements of statutory rape under § 23A, the SJC observed that the crime requires proof that: (1) the defendant had sexual or unnatural intercourse with (2) a child between 12 and 16 years old where (3) there was a greater than 10-year age difference between the defendant and the child. Thus, force is not a required element of proof for statutory rape. The SJC noted that forcible rape of a child is its own crime under G.L. c. 265, § 22A, and that“[t]he fact that the Legislature saw fit to create two separate statutory rape offenses – one that includes the use of force and one that does not” – supported its decision to find there is no force element with respect to § 23A. Scione, 481 Mass. at 230. Justice Lowy wrote a separate concurrence “because such a counterintuitive result requires further discussion and consideration by the Legislature,” signaling to the Legislature to fix what he termed an “unfortunate” decision mandated “under the law as currently written.” Id. at 239.

The SJC next ruled that statutory rape under § 23A cannot be a predicate charge under the residual clause, because the residual clause is unconstitutionally vague. Scione, 481 Mass. at 230. To reach this conclusion, the SJC relied on the decisions of the United States Supreme Court in Johnson v. United States, 576 U.S. —, 135 S. Ct. 2551 (2015) and Sessions v. Dimaya, 548 U.S. —, 138 S. Ct. 1204 (2018) which, respectively, held that similarly-worded residual clauses in the federal Armed Career Criminal Act and the federal statutory definition of “crime of violence” were each vague because they failed to set out how to determine which crimes triggered the statute’s application. Noting that it had already followed Johnson in interpreting the Massachusetts Armed Career Criminal Act, see Commonwealth v. Beal, 474 Mass. 341 (2016), the SJC ruled that the residual clause of § 58A is unconstitutionally vague under Article 12 of the Massachusetts Declaration of Rights and, therefore, cannot be used to justify dangerousness proceedings in any case.

Turning to Scione’s case, the Court analyzed whether his charge of using an incendiary device under § 102A could trigger a dangerousness hearing under the abuse clause (which, the Commonwealth argued, applied because the alleged victim had previously been in a substantive dating relationship with the defendant). The Court held that, unlike the force clause, the abuse clause does not require use of the categorical approach. The SJC reached this conclusion in part because only one Massachusetts statutory crime—assault and battery on a household member (G.L. c. 265, § 13M)—explicitly includes abuse as an element. Id. at 236. Using statutory interpretation principles to presume that the Legislature intended to act logically, the Court opined that, “had the Legislature intended that only one crime be captured under the abuse clause,” it would have enumerated that crime rather than enact a separate “abuse” clause. Id. Instead, the SJC found, abuse “is best described as a characterization of an action or actions” and, therefore, a judge can look at the details of the defendant’s underlying conduct to determine whether the charge involves abuse. Id. Applying those principles to Scione, the SJC found that his alleged acts of placing a potentially-harmful IED on the property of his former girlfriend indeed involved abuse.

Commonwealth v. Vieira

The SJC’s decision in Barnes paved the way for its October 2019 decision in Commonwealth v. Vieira. 483 Mass. 417 (2019). There, the defendant was charged with indecent assault and battery on a child under 14 years old, in violation of G.L. c. 265, § 13B, based on allegations that he had engaged in sexual activity with a thirteen-year old boy he met online.  Indecent assault and battery on a child under 14 is not an enumerated charge under § 58A, and the Commonwealth sought to treat it as a predicate charge under the force clause.

At the outset of its opinion, the SJC reminded practitioners that “pretrial detention is a measure of last resort,” and that the presumption of innocence always applies. Applying the categorical approach, the SJC observed that indecent assault and battery on a child under § 13B does not have statutory elements, but rather incorporates the common law definition of battery, including to the extent that an assault is simply a threatened or attempted battery. The SJC explained that, at common law, there were three types of battery: (1) harmful battery, involving touching with such violence that bodily harm was likely to result; (2) reckless battery, involving a wanton, willful, or reckless act that results in injury; and (3) offensive battery, requiring “only that the defendant, without justification or excuse, intentionally touched the victim, and that the touching, however slight, occurred without the victim’s consent.” Although the first two types, the SJC found, necessarily involve the use of physical force, offensive battery does not. And, because a court evaluating bail and pretrial detention does not look to whether the charged conduct involves harmful, reckless, or offensive battery, application of the categorical approach means that a statutory crime incorporating all three types of battery does not necessarily always include force. Applying those principles, the SJC concluded that indecent assault and battery under § 14B is not a predicate charge under the force clause of § 58A.

Looking Forward

Two days after the SJC’s decision in Barnes, Governor Charles Baker submitted House Bill No. 66, An Act to Protect the Commonwealth from Dangerous Persons, which sought to change the dangerousness statute to include sex offenses involving children by adding those crimes – along with others – to § 58A’s list of enumerated crimes. This bill retains the force clause but completely removes the unconstitutional residual clause. Adding more enumerated crimes would have the effect of subjecting more individuals to dangerousness hearings and pre-trial detention. However, this approach does not address the issue that battery may not always include force, but commonly does. See, e.g., G.L. c. 265, § 13A (assault and battery). Instead, this legislation only addresses the specifics of the cases the SJC has adjudicated and misses an opportunity to draft legislation that looks forward and targets only the most dangerous of offenses and individuals.

Reyna M. Ramirez is a Partner at Ramirez and Sunnerberg, a criminal defense and prisoners’ rights practice on the South Shore. She is also an Associate at the firm J. W. Carney, Jr. and Associates, where she litigates complex criminal defense cases.


Boston’s Way Forward on Housing

by City Councilor Lydia M. Edwards

Viewpoint

Boston’s economy is thriving. Why then are so many residents of the City and Commonwealth struggling to find and afford housing, remain in the communities they love, become homeowners and build wealth? A shortage of housing that serves the needs of all economic classes and family structures is certainly part of the problem. But simply building across the region will not solve our state’s persistent housing affordability crisis. To house our diverse, growing population, we will need a multi-pronged approach that balances growth and prosperity with protection of all residents during both recession and economic booms and addresses the widening wealth gap that plagues our City and the Commonwealth. As Boston City Council Chair of the Housing and Community Development and Government Operations Committees, my view is that Boston can lead through housing policies that raise revenue for affordable housing, shape new inclusive neighborhoods through planning and zoning that affirmatively furthers fair housing, and stabilize communities through protections against involuntary displacement and equitable opportunities for home ownership.

Revenue for Affordable Housing

With the decades-long decline in  federal funding, localities must look to other sources to finance the preservation and production of housing that is affordable to low- and moderate-income residents. Boston recently passed a home rule petition to collect a transfer fee of up to 2% on high-value real estate transactions that exceed $2 million dollars, subject to exemptions (“Transfer Fee Home Rule”). Enacted, the Transfer Fee Home Rule could generate as much as $169 million per year for affordable housing in Boston, vastly outstripping current  resources at the City’s disposal. Municipalities as different as Somerville, Concord and Nantucket have also  proposed transfer fees to fund their affordable housing, and 38 states and localities already have excise taxes on property sales.

Boston also has a pending home rule bill to authorize the City to update its existing Development Impact Program (“Linkage”) and Inclusionary Development Policy (“IDP”) which are each intended to mitigate the increased demands for affordable housing and job training attributable to large-scale developments. HB 4115. Enacted, HB 4115 would permit the City to make its own decisions to adjust the linkage fees to enable Boston to align more efficiently with changing market conditions and local needs without waiting for approval of the full General Court as currently required by statute; extend the IDP requirements (e.g., to create 13% of development as income-restricted units or contribute equivalent funds) which currently apply only to market-rate housing developments with 10 or more units and are in need of zoning relief, to all large projects regardless of whether zoning relief is needed; and codify the IDP into Boston’s Zoning Code.

Inclusive Zoning and Planning

Several “large projects” subject to Boston’s Article 80 Development Review and Approval process–including the former Suffolk Downs race tracks in East Boston, the Bunker Hill public housing in Charlestown, and the Mary Ellen McCormack public housing in South Boston–provide the City with unprecedented opportunities to shape entire new neighborhoods that provide an inclusive range of housing options to accommodate the City’s diverse population, while disrupting historic concentrations of poverty and patterns of racial and cultural segregation and providing access to employment and training opportunities for affected residents.

For public housing redevelopments, this may mean ensuring that income-restricted units are integrated with the market-rate units, whereas in purely private developments like Suffolk Downs, it may mean planning to ensure sufficient “affordable units” of the right bedroom size to house families and a community benefit agreement to mitigate meaningfully against adverse development impacts and hardships. I have proposed a zoning change for Boston to systematically ensure that all developers undertake deliberate and “meaningful actions, in addition to combating discrimination, that overcome patterns of segregation and foster inclusive communities free from barriers that restrict access to opportunity based on protected characteristics.” This change would amend the text of Boston’s Zoning Code to expressly incorporate our preexisting federal Affirmatively Furthering Fair Housing obligations. Seattle and Portland, for example, already review their plans with a lens for racial equity and displacement risk along with opportunities for economic growth, to inform their choices.

The City also recently strengthened its comprehensive planning under the Climate Ready Boston Initiative by passing an Ordinance Protecting Local Wetlands and Promoting Climate Change Adaptation in the City of Boston to ensure the equitable protection of all residents from the effects of climate change.

Community Stabilization

Boston has been taking aggressive steps to address the chronic housing crisis since October 2014 when the mayor’s Housing Advisory Task Force issued Housing a Changing City: Boston 2030, which was updated in 2018. The original Plan called for the production of 69,000 new housing units by 2030 with specific targets for different affordability levels in an effort to create a more equitable and inclusive City. Beyond production, the City also dedicates funds to support the acquisition and deed-restriction of properties as affordable housing, regulates and restricts short-term rentals, protects against condominium conversions, and supports a right to counsel in eviction proceedings––all measures intended to protect residents, especially long-time, low-income, elderly, and disabled tenants, against involuntary displacement. The City also created the Office of Housing Stability (“OHS”) in 2016, the first of its kind in the nation, to work across City departments and with external partners to promote policies, practices, and programs that are effective in achieving housing stability for tenants at risk of eviction, which is also critical to stabilizing communities like Boston where the majority of the population is renters.

Other high-cost cities also have passed right to counsel legislation, and some states such as Oregon, California and New York are moving towards rent stabilization policies which would allow rent increases but prohibit increases as high as those experienced by many Boston residents. These states, as well as Boston, have also looked to “just cause eviction” policies in efforts to protect tenants current with rent and who otherwise have not broken their lease agreements.

Additionally, to encourage home ownership, Boston has expanded the availability of low-interest loans to moderate-income families through the ONE+ Boston program and approved zoning to allow for accessory dwelling units. Other policies which support resident-controlled housing, such as cooperatives, cohousing and community land trusts; the co-ownership of such housing by residents; and a resident’s right of first refusal  to purchase, would each promote community stability, as well as individual opportunity to gain equity and build wealth.

Conclusion

Boston’s housing affordability crisis is not abating, and our response has not scaled up to protect all residents. With bolder action, we can create lasting stability in neighborhoods and reverse historic patterns of discrimination and dispossession in our real estate market, as well as in zoning and planning decisions. To achieve community stability we need a multifaceted approach to the housing shortage that is responsive to the diverse needs of all residents and to historic inequities and barriers to enabling them to remain in place and housed in their communities of choice.

Lydia Edwards has spent her entire career as an advocate, activist, and as a voice on behalf of society’s most vulnerable. She served as the deputy director within the Mayor’s Office of Housing Stability, as a public interest attorney with Greater Boston Legal Services focusing on labor issues, and she currently represents District One on the Boston City Council. For the 2020-2021 council session, she serves as Chair of the Committees on Housing and Community Development and Government Operations.


Not Just the Facts: Commonwealth v. Walczak Tells Prosecutors When to Instruct Grand Juries on the Law in Juvenile Murder Cases

by Alex Philipson

Case Focus

Philipson_AlexIn the mid-1920’s, in one of America’s most sensational cases of juvenile homicide, teenagers Nathan Leopold and Richard Loeb bludgeoned a neighbor to death in Chicago. At about the same time, a thousand miles away in Boston, the Supreme Judicial Court declared that a prosecutor seeking an indictment should, in appropriate instances, do more than present evidence to the grand jury; he should also give advice on the law. See Attorney Gen. v. Pelletier, 240 Mass. 264, 307 (1922). Nearly a century later, the concerns of these seemingly unrelated cases—juvenile murder and grand jury instructions—came together in ways never before seen in Massachusetts.

In Commonwealth v. Walczak, 463 Mass. 808 (2012), in a plurality opinion, the SJC held that a prosecutor must instruct the grand jury on the law in any case where he or she seeks to indict a juvenile for murder, and where there is substantial evidence of mitigating circumstances or defenses other than lack of criminal responsibility. Specifically, the prosecutor has a duty to inform the grand jury of the elements of murder and the significance of mitigating circumstances or defenses for reducing or eliminating the juvenile’s criminal liability—using the model homicide instructions, modified for grand jury proceedings. In no other case had the SJC ever held that a prosecutor was required to instruct the grand jury on the law absent a request from the grand jury. See Commonwealth v. Noble, 429 Mass. 44, 48 (1999).

Unlike Leopold and Loeb, who set out to commit a thrill killing, Walczak had no intention of killing anyone when, embroiled in a fight with two other teenagers, he allegedly stabbed one of them to death. One night in August, 2010, Walczak, then sixteen years old, agreed to meet the victim and another youth on a street corner to sell them marijuana. The purported buyers had actually planned to rob Walczak of his drugs. When the three met, the victim and his friend told Walczak they were going to take his marijuana, and one poked him in the head. Punches were thrown and Walczak stabbed the victim several times in the neck and torso with a knife, killing him.

The Commonwealth sought and obtained an indictment for murder in the second degree. Walczak moved successfully to dismiss the indictment on grounds of insufficient evidence. See Commonwealth v. McCarthy, 385 Mass. 160 (1982). The judge ruled that the Commonwealth had failed to disprove that Walczak acted on reasonable provocation or sudden combat—mitigating circumstances that negate malice and reduce a homicide from murder to voluntary manslaughter—and that, as a matter of law, the evidence supported at most an indictment for manslaughter.

On appeal by the Commonwealth, the SJC unanimously held that the judge erred: the evidence was sufficient to show probable cause for murder in the second degree; the Commonwealth bore no burden to disprove mitigation in the circumstances; and the grand jury was free to believe or disbelieve the evidence of mitigation. Nothing about those conclusions was particularly surprising. The excitement began when the justices considered an alternative ground for affirming the dismissal of the indictment: the Commonwealth’s failure to instruct the grand jury on the legal significance of the evidence of mitigation—i.e., that if someone kills another based on reasonable provocation or during sudden combat the offense would be manslaughter rather than murder. On the need for these instructions the justices differed markedly, but a plurality concluded that the Commonwealth should have given the instructions.

In dissent, Justice Spina, joined by Chief Justice Ireland and Justice Cordy, argued that, regardless whether mitigating circumstances surround a homicide, the Commonwealth has no obligation to instruct on mitigation absent a request from the grand jury. But according to the plurality opinion, at least where there is “substantial” evidence of mitigation—evidence “so strong” that “concealing it would impair the integrity of the grand jury” because the evidence concealed probably would have influenced the grand jury’s decision about what charge, if any, to indict—the legal significance of that mitigating evidence must be explained. Presumably a reviewing court would examine the facts de novo to decide whether the evidence of mitigation was substantial enough to require the instructions, but Walczak is silent on this point.

Justice Gants, in his concurrence, joined by Justices Botsford and Duffly, thought the instructions should be given in all murder cases, juvenile and adult. For him, what made the instructions necessary were “due process” interests not limited to juveniles.

By contrast, Justice Lenk, who wrote her own concurrence, did not speak in terms of due process. Rather, she thought that what necessitated the instructions were “prudential” concerns arising from the special status of adolescents. For example, unlike an adult, a juvenile indicted for manslaughter rather than murder faces trial in Juvenile Court, which affords special protections for adolescents. That difference, and the generally reduced culpability of minors as compared to adults, were the reasons Justice Lenk thought the instructions were required in juvenile murder cases. But the instructions that Justice Lenk thought essential were those concerning such traditional mitigating circumstances as reasonable provocation and sudden combat; she did not say that a grand jury should also be instructed that a juvenile’s youth itself constitutes a mitigating circumstance. (She did think that, in addition to instructions on mitigating circumstances, the grand jury should be told that a juvenile indicted for murder would be tried in Superior Court, but she was alone in that view.) For purposes of resolving Walczak’s case, Justice Lenk, unlike Justice Gants, thought it unnecessary to go so far as to require mitigation instructions (on reasonable provocation and sudden combat) not only for juveniles but for adults too. As the narrower view—requiring the instructions only in juvenile cases—hers prevailed in the plurality opinion.

But this reader, at least, sees no reason why the instructions should not be given in both juvenile and adult cases, as Justice Gants suggested. Although Justice Lenk wanted to ensure that a grand jury would take into account a juvenile’s youth, mitigation and self-defense are not concepts unique to adolescents. Adults can act out of reasonable provocation, sudden combat, or self-defense just as much as adolescents can. Thus, regardless whether the subject of a murder charge is a juvenile or an adult, it would seem fair in either case for the grand jury to be instructed on mitigating circumstances and self-defense, where the evidence warrants it. But the plurality concluded that the instructions are needed only in juvenile cases.

Besides instructions on mitigation and self-defense, Justice Gants suggested that the grand jury “may even be instructed that the prosecution is entitled to an indictment of the crime charged if it is supported by probable cause based on the credible evidence.” Walczak, 463 Mass. at 841. In this way, he agreed with Justice Spina that the grand jury is not permitted simply to choose between murder and manslaughter if credible evidence of the greater offense has been presented. But, as Justice Gants explained, even if the evidence of malice is legally sufficient, the grand jury is still free to decide that the evidence of mitigation is more reliable and return an indictment for the lesser offense.

Questioning the wisdom of the plurality’s view, Justice Spina pointed out that the decision did not address how one may pursue judicial review of a grand jury’s “gatekeeper” decision (i.e., whether the juvenile will be tried in Superior or Juvenile Court) or the applicable standard of review. More fundamentally, Justice Spina saw the plurality’s position as an “improper judicial exercise of the legislative function.” He believed that where the Legislature, in the 1996 Youthful Offender Act, removed power from Juvenile Court judges to determine in which court a juvenile would be tried, it was not up to the SJC to give similar power to the grand jury. Any legislative response to Walczak remains to be seen.

A postscript to this story is worth telling. After the SJC affirmed the dismissal of Walczak’s murder indictment, the Commonwealth returned to the grand jury to present the case again. This time, with the benefit of instructions on the legal significance of the mitigating circumstances, the grand jury indicted Walczak for voluntary manslaughter. As a result, Walczak will be treated as the juvenile he was in August, 2010, when that botched robbery turned tragically into a fatal fight.

Alex G. Philipson is founder of the appellate boutique Philipson Legal, providing appellate representation and consulting services in civil and criminal matters. He was Senior Staff Counsel to the Supreme Judicial Court from 2003 to 2011.