441 Mass. 157 | Mass. | 2004
The question we must decide on a reservation and report from a single justice of this court is whether any provision of G. L. c. 123A permits the release of a person on
Background. The respondent, William Knapp, has twice been convicted of sexual offenses.
Discussion. Finding “the danger of recidivism posed by sex offenders . . . to be grave and that the protection of the public from these sex offenders is of paramount interest to the government,” the Legislature in 1999 enacted a mechanism, codified at G. L. c. 123A, to provide for the civil commitment of individuals convicted of sexual offenses who are found to be sexually dangerous persons. St. 1999, c. 74, § l.
General Laws c. 123A sets forth strict procedures that courts and the Commonwealth must follow with regard to the civil commitment of sexually dangerous persons. Section 12 (a) requires facilities holding persons convicted of sexual offenses
The language that the Legislature has employed and the procedures that it has set forth demonstrate its clear “concern with protecting the public from harm by persons . . . who are likely to be sexually dangerous.” Commonwealth v. Bruno, 432 Mass. 489, 504 (2000). The statute’s strict timetables and express recitations of respondents’ rights throughout the process also demonstrate the Legislature’s simultaneous concern for individuals’ liberty.
After a finding of probable cause, however, §§ 13 and 14 of the statute operate to deprive the judge of discretion with respect to whether the person will be committed. At this point, “the prisoner . . . shall be committed to the treatment center. . .
Knapp argues, however, that § 14 (e) recognizes judicial discretion to consider relief from confinement even after a probable cause finding, as the circumstances in each case may require. He points particularly to language in § 14 (<?) that, on its face, seems to parallel the language of § 12 (e). His reading of § 14 (e) is too broad. Although it provides that “[i]f the person named in the petition is scheduled to be released from [custody] at any time prior to the final judgment, the court may temporarily commit such person to the treatment center pending disposition of the petition” (emphasis added), this language is preceded by language within the same section of the statute
Knapp further argues that the language in § 14 (a) directing the confinement of persons “for the duration of the trial” applies only to the period of actual court proceedings, and does not apply to the period between the finding of probable cause and the beginning of the trial itself. This makes little sense. The Legislature’s stated purpose is to protect the public from harm by persons likely to be sexually dangerous. A sexually dangerous person would not pose a greater risk to the public during the court proceedings than before, and we find it implausible that the Legislature would require confinement only during proceedings simply to reduce the risk of flight during that limited period. Once a judge has found that probable cause exists to believe that a person is sexually dangerous and the Commonwealth has petitioned for trial (as it must to set the trial process in motion), the clear intent and requirement of the statute is that the person be confined in a secure facility.
Our analysis does not conclude with interpreting the statutory
“ ‘ “[S]ubstantive due process” prevents the government from engaging in conduct that “shocks the conscience,” Rochin v. California, 342 U.S. 165, 172 (1952), or interferes with rights “implicit in the concept of ordered liberty,” Palko v. Connecticut, 302 U.S. 319, 325-326 (1937).’ United States v. Salerno, 481 U.S. 739, 746 (1987).” Aime v. Commonwealth, 414 Mass. 667, 673 (1993). If the government’s action impairs a fundamental right, that action must be “narrowly tailored to further a legitimate and compelling governmental interest” in order to survive substantive due process review. Id. Procedural due process, the second part of our constitutional analysis, “requires that a statute or governmental action that has survived substantive due process scrutiny be implemented in a fair manner.” Id. at 674.
The right of an individual to be free from physical restraint is a paradigmatic fundamental right. “[F]reedom from physical restraint ‘has always been at the core of the liberty protected by the Due Process Clause from arbitrary governmental action.’ ” Kansas v. Hendricks, 521 U.S. 346, 356 (1997), quoting Foucha v. Louisiana, 504 U.S. 71, 80 (1992). Confinement, therefore, must be narrowly tailored to further a legitimate and compelling governmental interest. As expressed in the preamble to the 1999 emergency legislation, the legislative interest at stake is the protection of the public from harm by persons likely to be sexually dangerous. See Commonwealth v. Bruno, supra at 504. We already have held that interest to be both legitimate and compelling. Id. We now consider whether the confinement of a convicted sexual offender alleged by the Commonwealth to be sexually dangerous, after a judge has found that probable cause exists to believe that the person is sexually dangerous, and after the Commonwealth has petitioned for trial, is narrowly tailored
In Commonwealth v. Bruno, supra, we held that the temporary commitment of a person to a treatment center prior to the probable cause determination, as allowed by G. L. c. 123A, § 12 (e), is narrowly tailored to the Legislature’s expressed interest and does not violate substantive due process rights. Id. at 504. In so holding, we noted that the Commonwealth may petition for a probable cause hearing only when it can show by “sufficient facts” that it is “likely” that a person is sexually dangerous, that the Commonwealth may not seek temporary commitment under § 12 (e) unless it satisfies the probable cause to arrest standard with a “sufficient showing” based on “evidence before the court” that the person is likely to commit future harm, that temporary commitment is in a treatment center rather than a correctional facility, and that the temporarily committed person may seek relief at any time before the probable cause determination. Id. at 503-504, 507-508. We evaluate the nondiscretionary commitment mandated by § 14 (a) in light of our previous analysis of the temporary commitment allowed by § 12(e).
Although the confinement described in § 14 (a) is automatic and nondiscretionary, it does not occur in a vacuum. Before a person may be temporarily confined pending the outcome of his commitment trial under § 14 (a), he must be a convicted sexual offender, serving a prison sentence at the time the Commonwealth petitions for his commitment, whose sentence is scheduled to expire before that final outcome is obtained. A judge must also have concluded, after a probable cause hearing (including expert testimony, see Commonwealth v. Bruno, supra at 513), with significant procedural protections provided to the respondent, that there is sufficient admissible evidence on each element of proof necessary to satisfy a jury that the person is sexually dangerous beyond a reasonable doubt, see Commonwealth v. Reese, 438 Mass. 519, 524 (2003). In addition, the Commonwealth must have petitioned for trial after the respondent has been evaluated by at least two qualified examiners at the treatment center. Finally, the statute requires that,
In these circumstances, we conclude that the confinement of such a person is narrowly tailored to the Legislature’s expressed interest in protecting the public from harm by persons convicted of sexual offenses who are likely to be sexually dangerous. Cf. Paquette v. Commonwealth, 440 Mass. 121, 131 (2003), cert. denied, 540 U.S. 1150 (2004) (holding bail revocation following charge of crime committed while on release to be “narrowly tailored to further the Commonwealth’s legitimate and compelling interests in assuring compliance with its laws[] and in preserving the integrity of the judicial process”); Querubin v. Commonwealth, 440 Mass. 108, 116 (2003) (holding denial of bail to defendant posing flight risk to be “narrowly tailored to the State’s legitimate and compelling interest in assuring the defendant’s presence at trial”).
We proceed to determine whether such confinement is implemented in a fair manner under the statute and therefore satisfies the requirements of procedural due process. We hold that it does.
Where, as here, the government interferes with an individual’s protected liberty interest, we must balance the interest of the individual affected, the risk of erroneous deprivation of that interest, and the government’s interest in the efficient administration of its affairs. Paquette v. Commonwealth, supra at 131. See Mathews v. Eldridge, 424 U.S. 319, 334-335 (1976); Aime v. Commonwealth, 414 Mass. 667, 675 (1993). As we have recognized, “[t]he requirements of procedural due process are pragmatic and flexible, not rigid or hypertechnical. . . . ‘[D]ue process is flexible and calls for such procedural protections as
Citing United States v. Salerno, 481 U.S. 739 (1987), and Aime v. Commonwealth, supra, Knapp argues that a determination of “probable cause” using the “directed verdict” standard required by Commonwealth v. Reese, 438 Mass. 519, 522 (2003), is constitutionally inadequate to justify his confinement pending final judgment, and that the Commonwealth must instead prove by “clear and convincing” evidence that there are no conditions of release that may reasonably assure the safety of the public.
In United States v. Salerno, supra, the United States Supreme Court held that a judge may deny bail “[w]hen the Government proves by clear and convincing evidence that an arrestee presents an identified and articulable threat to an individual or the community.” Id. at 751. In Aime v. Commonwealth, supra at 675, 682, we struck down a Massachusetts statute that permit
Unlike the holding of suspects denied bail, confinement of alleged sexually dangerous persons after their release from prison and pending a commitment trial under G. L. c. 123A is civil, not criminal, in nature. See Kansas v. Hendricks, 521 U.S. 346, 361-363 (1997) (proceedings under statute that, like G. L. c. 123A, required secure confinement after judge found probable cause to believe that person was sexually violent predator are civil, not criminal). Those confined are held in the treatment center (a secure mental health facility), not a correctional facility. See G. L. c. 123A, §§ 13 (a), 14 (a); Doe v. Gaughan, 808 F.2d 871, 879 (1st Cir. 1986) (distinguishing between confinement in jail and in treatment facility). And confinement may continue only for a relatively short period of time. See G. L. c. 123A, § 14 (a). See also Mendonza v. Commonwealth, 423 Mass. 771, 783 & n.5 (1996) (noting constitutional significance of term of confinement); Logan v. Arafeh, 346 F. Supp. 1265, 1268 (D. Conn. 1972), aff’d sub nom. Briggs v. Arafeh, 411 U.S. 911 (1973) (holding forty-five day commitment to hospital for mental illness on physician’s finding of dangerousness not to violate due process because of availability of judicial review after forty-five days).
Further, the combination of an adversary probable cause hearing (including expert testimony), the standard for finding prob
Therefore, in response to the question reported to us by the single justice, we hold that G. L. c. 123A, § 14 (a), does not permit a judge to release a respondent pending trial, on probationary conditions, after a finding of probable cause on the Commonwealth’s petition for his commitment as a sexually dangerous person.
So ordered.
The respondent does not make a separate argument under the due process provisions of the Declaration of Rights of the Massachusetts Constitution.
Knapp was convicted in 1978 of assault with intent to rape, and in 1988 of assault with intent to murder, assault with intent to rape, assault and battery by means of a dangerous weapon, and indecent assault and battery on a person who has attained age fourteen (there is some discrepancy in the defendant’s brief and in parts of the record; nonetheless, it appears certain that the victim of the indecent assault and battery had attained age fourteen).
Instead of petitioning for a trial within fourteen days of the filing of the qualified examiners’ report, as G. L. c. 123A, § 14 (a), envisions, the Commonwealth included its petition for a trial within its initial petition alleging that Knapp is a sexually dangerous person. Knapp moved to dismiss the Commonwealth’s petition for commitment on this basis. After a hearing, the Superior Court judge denied the motion, holding that the Commonwealth’s combined filing fulfilled “the spirit and letter of the statute.” Knapp argues here that the Commonwealth’s combined filing makes its petition invalid and therefore would render his own commitment illegal. The question whether the Commonwealth may file its § 14 (a) petition concurrently with its § 12 (b) petition was not reserved and reported by the single justice; therefore, we do not address it. See Sheriff of Suffolk County v. Pires, 438 Mass. 96, 97 n.3 (2002).
Knapp is now living under probationary conditions and monitored by an electronic bracelet while he awaits his commitment trial.
The reservation and report states: “I hereby reserve and report the case without decision to the Full Court for determination of whether G. L. c. 123A, § 13 (a) and § 14 (a) permit a judge to release a [respondent] on probationary conditions pending trial on the Commonwealth’s petition for commitment as a sexually dangerous person.”
In the circumstances of this case, a sexually dangerous person is defined as “any person who has been. . . convicted of or adjudicated as a delinquent juvenile or youthful offender by reason of a sexual offense and who suffers from a mental abnormality or personality disorder which makes the person likely to engage in sexual offenses if not confined to a secure facility.” G. L. c. 123A, § 1.
At the probable cause hearing, the statute provides that the person named in the petition has the right to assistance of counsel, to present evidence, to cross-examine witnesses, and to view and copy all petitions and reports in the court file. G. L. c. 123A, § 12 (d). During the examination period, all documentation provided to the qualified examiners must be provided to the person’s counsel, id. at § 13 (c), and the person may retain his own psychologist or psychiatrist (at court expense if the person is indigent), id. at § 13 (d). Should a commitment trial occur, the statute guarantees assistance of counsel and independent examinations (and provides such for indigent persons), requires that independent examiners have access to the person and to the
In her June 12, 2003, order, the judge cited Commonwealth v. Blanchette, 54 Mass. App. Ct. 165 (2002), to support “imposition of] conditions of supervised probation in lieu of detention in the Treatment Center.” The Appeals Court, however, was addressing commitment before a finding of probable cause, not after. See id. at 167 n.4. Its instruction to trial judges that they may consider imposing conditions of supervised probation in lieu of a temporary commitment to the treatment center is therefore consistent with our interpretation of § 12 (e), but not applicable after a finding of probable cause.
Massachusetts is not the only State to require confinement after a judge determines that probable cause exists to believe that a person is sexually dangerous. See, e.g., Ariz. Rev. Stat. § 36-3705(B) (West 2003) (“If the judge determines that probable cause exists ... the judge shall order that the person be detained . . .”); Cal. Welf. & Inst. Code § 6602(a) (West Supp. 2004) (“If the judge determines that there is probable cause, the judge shall order that the person remain in custody . . .”); Fla. Stat. Ann. § 394.915(5) (West 2002) (“After a court finds probable cause ... the person must be held in custody . . .”); Kan. Stat. Ann. § 59-29a05(a) (Supp. 2002) (“If [a probable cause] determination is made, the judge shall direct that person be taken into custody”), § 59-29a20 (“Any person for whom a petition . . . has been filed . . . shall not be eligible for. . . any. . . measure[] releasing the person from the physical protective custody of the state . . .”); NJ. Stat. Ann. § 30:4-27.28(g) (West Supp. 2003) (“If the court finds that there is probable cause . . . [i]n no event shall the person be released from confinement prior to the final hearing”); Va. Code Ann. § 37.1-70.7(C) (Supp. 2003) (“If the judge finds that probable cause exists ... the judge shall order that the [person] remain in. . . custody”); Wash. Rev. Code Ann. § 71.09.040(1) (West 2002) (“If [a probable cause] determination is made the judge shall direct that the person be taken into custody”), § 71.09.040(4) (“In no event shall the person be released from confinement prior to trial”); Wis. Stat. Ann. § 980.04(3) (West 1998 & Supp. 2003) (“If the court determines . . . that there is probable cause ... the court shall order that the person be taken into custody . . .”).
Knapp also contends that § 14 (e) permits a judge to ignore the language of § 13 (a) that, after a finding of probable cause, a respondent “shall be committed to the treatment center” for examination, and to release a respondent on the condition that such an examination be performed on an outpatient basis (emphasis added). While these circumstances are not presented here, our reasoning with respect to the limited meaning of § 14 (e) would apply as equally to the mandatory language of § 13 (a) as it does to that of § 14 («).
If the relevant agencies and the Commonwealth act promptly, as they should, commitment proceedings may even conclude before the date on which a person is scheduled to be released from custody. See Commonwealth v. Gagnon, 439 Mass. 826, 832 n.8 (2003); Commonwealth v. Bruno, 432 Mass. 489, 508 (2000).
Over two years have passed since the judge found probable cause that Knapp is a sexually dangerous person, but Knapp’s trial has yet to occur. Knapp does not argue that this delay has not been “for good cause” or in the “interests of justice,” and indeed the judge noted that trial has been delayed “[mjostly at the request of the [respondent] . . . .”
Knapp’s characterization of the probable cause standard suggests that it is lower than we have established it to be. In Commonwealth v. Reese, 438 Mass. 519 (2003), we stated that “the decision-making process [at a § 12 (c) probable cause hearing] ought to consist of a two-part inquiry, one quantitative and the other qualitative. ‘The judge must be satisfied, first, that the Commonwealth’s admissible evidence, if believed, satisfie[s] all of the elements of proof necessary to prove the Commonwealth’s case. Second, she must be satisfied that the evidence on each of the elements is not so incredible, insubstantial, or otherwise of such a quality that no reasonable person could rely on it to conclude that the Commonwealth had met its burden of proof.’ ” Id. at 524, quoting Commonwealth v. Blanchette, 54 Mass. App. Ct. 165, 175 (2002).
Addington v. Texas, 441 U.S. 418 (1979), which established the clear and convincing evidentiary standard as the one appropriate for civil commitment, addressed ultimate commitment determinations, not limited periods of confinement pending final judgment. On this measure, G. L. c. 123A, § 14 (d), permitting final commitment only on a finding beyond a reasonable doubt, exceeds the Federal constitutional minimum.
In Aime v. Commonwealth, 414 Mass. 667 (1993), we noted the clear and convincing standard of United States v. Salerno, 481 U.S. 739 (1987), but did not describe what would be the appropriate burden of proof under an otherwise constitutional statute. Id. at 679, 682. We have since held the clear and convincing standard to be the appropriate measure of an arrestee’s dangerousness for a judge to deny bail in a criminal case. See Mendonza v. Commonwealth, 423 Mass. 771, 782-784 (1996).
Our answer to the question posed in the reservation and report is the same with regard to G. L. c. 123A, § 13 (a), although the circumstances which would raise the question under § 13 (a) are not present in this case. See notes 5 and 10, supra.