423 Mass. 771 | Mass. | 1996
In these cases we consider the constitutionality of G. L. c. 276, § 58A (1994 ed.),
Kevin Mendonza now challenges its constitutionality under arts. 1, 10, 12, and 26 of the Massachusetts Declaration of Rights. He challenges as well those aspects of § 58A that differ from the Federal legislation on both State and Federal constitutional grounds. Vincent Callender challenges the constitutionality under both Constitutions of the provision in § 58A (4) which the Commonwealth and the District Court read as requiring the pretrial detention of a defendant for three days if the Commonwealth requests a continuance prior to a hearing on dangerousness. Although the Bad Reform Act contains a similar provision,
We conclude that in the respects challenged by Mendonza, § 58A is valid under the Fourteenth Amendment and the Declaration of Rights, both on its face and as applied to him. A provision that would require detention during a three-day continuance requested by the Commonwealth, without a hearing or any determination of need could not stand under either Constitution, but it is not necessary to read § 58A (4) in this way. The Commonwealth must show good cause for such a continuance, and the judge must in each case make a specific finding indicating what such cause is.
I
A
General Laws c. 276, § 58A, allows a District or Superior Court judge, on motion of the Commonwealth, to order the pretrial detention of a person charged with certain felonies and other ofienses involving the use, or threatened use, of violence or abuse, or the violation of protective orders, including protective orders obtained under G. L. c. 209A (1994
The hearing at which the detention order is sought must take place at the arrested person’s first appearance, absent a request for a continuance by one of the parties. The hearing may be continued for three business days on motion of the Commonwealth. The prisoner shall be detained during such continuance on a showing that there was probable cause to arrest him. § 58A (4). The judge at the hearing must find the requisite dangerousness by clear and convincing evidence, G. L. c. 276, § 58A (3) and (4), and shall consider, among other factors, the nature and seriousness of the danger posed by the prisoner if released, the nature and circumstances of the offense charged, his family ties, his employment record, his record of convictions, and whether he is on bail pending adjudication of other prior charges. G. L. c. 276, § 58A (5). The prisoner has a right to counsel at the hearing, including,
B
Four police officers came to Mendonza’s house to serve him with a protective order obtained by his wife, requiring him to move out of the family home. Mendonza asked permission to gather his belongings from his bedroom. As Mendonza and three of the officers approached the bedroom he ran into the room and barricaded the door with furniture. When the officers got inside, they found Mendonza standing in a comer pouring gasoline from a canister over his head with one hand and holding a book of matches in the other. Mendonza said, “I have matches and I’ll set the whole place on fire.” One of the officers subdued Mendonza with “caps-tun” (a disabling substance), arrested him, and charged him with three counts of armed assault with intent to murder, assault and battery on a police officer, and violation of a protective order for his failure to leave the house when served with the order.
At his arraignment on these charges, the Commonwealth sought a detention order under G. L. c. 276, § 58A, but the judge ordered Mendonza committed to Bridgewater State Hospital for an evaluation of his competency to stand trial and of his criminal responsibility. During this time a grand
Callender was arrested for banging on the door of an apartment which a G. L. c. 209A protective order forbade him from visiting. At the time, Callender was on probation for three violations of G. L. c. 209A protective orders. At his arraignment, the Commonwealth moved for a § 58A detention order and requested a continuance for three days. The District Court judge declined to grant the three-day continuance on the ground that the § 58 (4) requirement that a continuance be granted merely at the request of the Commonwealth was unconstitutional. Callender was, however, held for that period on the probation violation, at the end of which time he admitted to sufficient facts on the charges, and was found guilty. Accordingly, no detention order ever issued. Nevertheless the judge reported to the Appeals Court the following question:
“Does the provision of M. G. L. c. 276, s. 58A(4), which allows for the pre-trial detention of a criminal defendant for three days upon the filing of a motion for an order of pre-trial detention and a request for a three-day continuance, without any other preliminary showing of danger*777 ousness or any other type of hearing, violate a criminal defendant’s rights under the Fourteenth Amendment to the United States Constitution or Article 12 of the Massachusetts Declaration of Rights?”
We granted Callender’s application for direct appellate review.
II
A
We note at the outset that, although both cases are moot since both Callender and Mendonza. have admitted guilt and are no longer subject to § 5 8A, it is entirely appropriate that we proceed to adjudicate both claims. The issues are certainly of recurring importance to the administration of justice in the Commonwealth, yet owing to the limited time during which detention is authorized and the very short time during which a continuance on the motion of the Commonwealth may be granted, they would almost certainly evade review in this court. In such cases we have often proceeded to consider the important recurring question. See Aime v. Commonwealth, 414 Mass. 667, 670 (1993) (in case raising constitutional concerns nearly identical to those here, “we do not hesitate to reach the merits of cases that no longer involve a live dispute so as to further the public interest”); Lockhart v. Attorney Gen., 390 Mass. 780, 783-785 (1984) (“in our discretion . . . we should not offer our views on constitutional issues that will not necessarily arise again in substantially the same form,” but “[i]f ... the issues . . . reappear, they need not evade review before they become moot”); Boston Herald, Inc. v. Superior Court Dep’t of the Trial Court, 421 Mass. 502, 504 (1995) (taking the opportunity to “reiterate the principles which govern” in a constitutional case even though the dispute before the court was moot, and it was “highly speculative” that it would repeat itself). Cf. Roe v. Wade, 410 U.S. 113 (1973). Nor is it indispensable that the case be capable of repetition in respect only to the particular claimant. This doctrine is designed to assist in the clarification of the law generally, and not simply to assist the situation of a particular party. See Wolf v. Commissioner of Pub. Welfare, 367 Mass. 293, 298 (1975); Norwood Hosp. v. Munoz, 409 Mass. 116, 121 (1991).
Mendonza designates his first and most general challenge to the scheme of § 58A under the rubric of substantive due process. Our decision in Aime, supra, also considered at length the distinction between substantive and procedural due process and pointed to the long and strongly entrenched tradition that the former concept enjoys under both our own and the Federal Constitutions. Id. at 673-675. The serious challenge Mendonza makes speaks at a level more basic than the particular provisions assuring fair procedures in both Constitutions, which is why in considering the validity under the Fourteenth Amendment of the predecessor statute we were obliged to recur to that linguistically awkward concept of substantive due process. The objection to the procedures in the previous statute were not simply to the way in which the issue of dangerousness was adjudicated but more fundamentally to the use of a prediction of dangerousness as a predicate for a deprivation of liberty at all. This challenge has a firmer textual footing in arts. 1 and 10 than in the Fourteenth Amendment. Both articles recognize explicitly a substantive right to liberty,
The Supreme Court in United States v. Salerno, 481 U.S. 739 (1987), noted that there have been several contexts in which deprivations of liberty have been approved without the full panoply of rights and procedures attendant on the criminal process. It gave as examples the detention of dangerous persons in time of war or insurrection, of potentially dangerous resident aliens, of mentally unstable persons who present a danger to .the public, of dangerous defendants who become incompetent to stand trial, and of juveniles awaiting trial who present a continuing danger to the community. Id. at 748-749. The looming danger in moving directly from this list to the conclusion that therefore any and all deprivations of liberty need only be tested by the test of due process in general — that is, are the procedural guarantees commensurate with the severity of the imposition, Mathews v. Eldridge, 424 U.S. 319 (1976) — is that the distinctive nature of the procedural guarantees of the criminal process enshrined with such emphasis and specificity in both Constitutions would be swallowed up in the undifferentiated weighing invited by a generalized due process analysis. Unfortunately, the Salerno decision did little to acknowledge or head off this danger beyond noting that the special safeguards of the Bill of Rights are only applicable in the case of punishment and not where the deprivation of liberty is regulatory. Salerno, supra at 746-747. But until we have a firm grasp of what is punishment and what is regulation, this is an example of explaining the obscure by the more obscure. The Justices of this court recently had occasion to address that very question in considering the constitutionality of a bill, since passed into law, permitting notification by law enforcement agencies to police, public and private agencies, and the public of the presence in a community of certain sex offenders who had completed their sentences.
“[Our criminal justice system] is built on the premise of personal responsibility: Individuals are taken to exercise a choice whether or not to obey the law. Punish*780 ment is the consequence visited on willing disobedience. . . . Our system of criminal justice is not predictive in the sense that it would seek systematically to identify those who may present a danger to society and to incapacitate them before that danger may be realized.
“[T]he Justices are governed by the overriding concern that the distinctiveness of the criminal justice system not be elided, lest we move in the direction of a regime where persons, and not just particular activities and occupations, are seen as regulated by government, rather than a regime where persons are seen as personally responsible for conforming their conduct to the clearly promulgated standards of the criminal law. . . .” Opinion of the Justices, post 1201, 1218-1223 (1996).
The preventive regime of § 58A has a particularly heavy burden to overcome because it is explicitly “predictive” and “seek[s] systematically to identify those who may present a danger to society and to incapacitate them before that danger may be realized.” Id. at 1219. We are not inclined to believe that the Supreme Court in Salerno wished to allow any and all loss of liberty to be justified by a prediction of dangerousness with only generalized due process safeguards. See Foucha v. Louisiana, 504 U.S. 71, 75-83 (1992). In any event, if we are wrong about that, the text and structure of our own more emphatic guarantees in arts. 1, 10, and 14 do not permit that baleful conclusion. Each of the examples the Supreme Court cited included some additional feature that justified taking it out of the regime of the criminal law: the wartime cases involve the government’s enhanced powers to protect the citizenry from the grave dangers of war and insurrection, see Moyer v. Peabody, 212 U.S. 78 (1909); the detention of certain aliens invokes the government’s more plenary power over persons who may in certain circumstances be removed from the country, see Carlson v. Landon, 342 U.S. 524, 537-542 (1952); juveniles and the insane both are thought to act with diminished responsibility and thus are susceptible to regimes at once both more intrusive and more paternalistic, see Jackson v. Indiana, 406 U.S. 715, 731-739 (1972).
In the case of § 5 8A, like the Bail Reform Act, the factor additional to predicted dangerousness is the pendency of a
In rejecting Mendonza’s substantive due process claim, we reject the claim that a person accused of crime may never be detained on grounds of dangerousness prior to an adjudication of guilt in a criminal trial. In the balance of this opinion we consider the objections Mendonza makes to specific features of § 58A.
C
1. Mendonza argues that § 58A violates art. 12 in that the Commonwealth need only prove dangerousness by clear and convincing evidence instead of beyond a reasonable doubt. This argument is supported by our decisions that the civil commitment of dangerous persons as well as the commitment of sexually dangerous persons require the showing of
If there is sufficient constitutional warrant for the Legisla
In Myers, supra at 855-856, we did say that in a probable cause hearing “the defendant must be given the opportunity to cross-examine his accusers and present testimony in his own behalf in order to insure that the hearing’s vital screening function will be effectuated.” We held these procedural guarantees were “appropriate to the nature of the case,” id. at 855, quoting Goldberg v. Kelly, 397 U.S. 254, 268 (1970). We also said “the rules of evidence at the preliminary hearing should in general be the same rules that are applicable at the criminal trial.” Myers, supra at 849 n.6. However, the rules of evidence and more specifically the rules against the admission of hearsay evidence are not required in all proceedings. Article 12, like the Sixth Amendment, only grants the right to a defendant in a criminal proceeding to confront the witness offering the declaration. Thus even in a criminal trial, where the right of confrontation is at its zenith, there are numerous rules allowing the introduction of hearsay evidence. Furthermore, this court has sanctioned certain proceedings where the rules of evidence do not apply, even where deprivation of liberty is at stake as is the case here. Commonwealth v. Durling,
3. Mendonza argues that several differences between the Federal statute and § 58A rise to the level of constitutional defects.
a. The Federal Bail Reform Act may be invoked where the accused is charged with a crime of violence, a capital crime or a crime allowing life imprisonment, certain drug offenses for which the maximum sentence is ten or more years, or any listed felony if the accused has already been convicted of two or more of the listed offenses. 18 U.S.C. § 3142(f)(1). The Supreme Court in Salerno mentioned this limitation to serious crimes as one of the factors supporting the constitutionality of the Act. United States v. Salerno, supra at 747. The predicate offenses listed in § 58A (1) are defined somewhat differently but are also limited to serious crimes. Included are felonies that involve the use of force or attempted or threatened use of force. Subsection (1) goes on to include “any other felony that by its nature involves a substantial risk that physical force . . . may result . . . whether or not a person has been placed at risk thereof,” and specifically lists
b. Mendonza complains that § 5 8A, unlike the Federal statute, does not require a finding that there is probable cause to believe that the person to be detained has committed one of the predicate offenses. It is true that the Supreme Court in the Salerno case gave as one of the features of the Act that assured its constitutionality the requirement that “[t]he Government . . . first of all demonstrate probable cause to believe that the charged crime has been committed by the arrestee. . . .” Salerno at 750. But the provision to which Mendonza points as imposing that requirement, 18 U.S.C. § 3142(e), does not in fact explicitly set out any such general predicate finding. The Supreme Court ruled as it did because
c. The Federal statute instructs judges to consider the “nature and circumstances of the offense charged” and “the weight of the evidence against that person” in determining whether the accused should be detained. 18 U.S.C. § 3142(g)(1) and (2). Section 58A (5) directs the judge to consider, among other factors, “the nature and seriousness of the danger” posed by the accused and “the nature and circumstances of the offense charged,” but does not mention the weight of the evidence regarding the predicate offense. This omission is without significance. As we have said, it must already have been established that there is probable cause to believe that the defendant has committed the crime, and we see no reason to ask the court to reconsider that issue on some other standard. The focus of the detention hearing quite properly is on the further question of dangerousness, which must be made out by clear and convincing evidence. The statute directs the courts to the factors that bear on the rational determination of that issue.
4. The judge detained Mendonza on a finding that there was clear and convincing evidence that “no conditions of release will reasonably assure the safety of others, namely the defendant’s spouse and children.” Mendonza complains that there was, however, no evidence that he had ever harmed his wife or children. We do not take him to be arguing that clear and convincing evidence of danger to his family was lacking, and if he is, we reject that argument. Rather it seems that Mendonza is arguing that the Commonwealth must show
Ill
Callender makes a different and narrower claim. Conceding arguendo the constitutionality of § 58A in all other respects, Callender challenges the provision in § 58A (4) which appears to give the Commonwealth an extension of three business days more or less for the asking, during which time an accused is detained simply on the showing that there was probable cause to arrest him. The analogous provision in 18 U.S.C. § 3142(f)(2) is similarly worded: it states that “[e]xcept for good cause ... a continuance on motion of the attorney for the Government may not exceed three days . . . [djuring . . . [which] the person shall be detained . . . .” The Supreme Court in Salerno did not address that provision, nor has it passed on it explicitly since.
The Commonwealth’s expansive reading of the continuance provision raises serious constitutional concerns. We have just considered Mendonza’s arguments that the Declaration of Rights and our constitutional traditions do not allow the State to deprive a person of his liberty except on conviction or other determination of dangerousness made beyond a reasonable doubt. We did not reject those arguments because we thought them frivolous or far-fetched but because, in spite of their considerable force, they are too absolute. We concluded that on balance the Declaration of Rights, which may be more but is certainly not less protective than the Federal Constitution, allows preventive detention in carefully circumscribed circumstances and subject to quite demanding procedures. The Commonwealth’s burden to prove dangerousness by clear and convincing evidence is an important part of those procedures. One of the reasons we did not require an even higher standard of proof is that detention under § 58A is temporary and provisional.
Having engaged in such a careful balancing in respect to those claims we cannot, without more, admit that any detention of a person after his required first appearance, at which probable cause is determined, can be permitted on so casual and untested a basis.
“While no empirical analysis has been performed, this Court is well aware of numerous instances where the Commonwealth has filed the original petition pursuant to s. 58A(4), as well as the request for the three-day continuance pursuant to s. 58A(4), and after the three-day detention and at the time of the hearing, has withdrawn its petition. The criminal defendant has been detained for a period of three days without any preliminary showing of dangerousness or without any hearing simply upon the filing of the petition.”
The Commonwealth did not address this allegation, nor have we been pointed to any other discussion of it. However general such a practice may or may not be, it is a vice of the Commonwealth’s contention that like any other form of unilateral and untested (either before or after the fact) exercise of power it invites abuse. We need not belabor the point: the Commonwealth’s contention is so extreme that we shall not construe the statute to underwrite it.
There is, to be sure, another side to the issue. Callender himself goes too far in suggesting that, if § 58A is generally valid, then any detention, even that during which the Commonwealth is gathering its evidence to make a clear and convincing showing of dangerousness, must also be justified by clear and convincing evidence of dangerousness. In many situations where the threat of danger looms, particularly where the police make an arrest shortly after learning of the commission of a serious and violent crime, the brief period of time allowed before first appearance will not suffice for this further purpose. The police may know enough to establish probable cause that such a crime has been committed and
The sensible reading of the continuance provision is to allow such a three-day continuance at the request of the Commonwealth only if the Commonwealth can show good cause for it. Such a reading would meet the serious constitutional doubts raised by the automatic stay for which the Commonwealth argues. The judge should then make a specific finding that such cause has been shown and what such cause is.
IV
We affirm the judgment of the single justice as to Mendonza’s claim. As to Callender, the answer to the question reported to us is that properly construed to require good cause § 58A (4) is not unconstitutional.
So ordered.
Between the time Mendonza was arraigned in January of 1995, and Cal-lender’s arraignment in July, 1995, G. L. c. 276, § 58A, was revised. St. 1995, c. 39, § 13, effective June 21, 1995. Nothing turns on the revisions and we discuss the statute as it appeared at the time of Mendonza’s arraignment. The provision Callender challenges was unchanged by the amendment.
The provisions are identical except that the Federal statute, 18 U.S.C. § 3142(f), refers to a continuance of “three days” at the request of the government whereas § 58A more specifically refers to “three business days.”
Article 1 of the Declaration of Rights, as amended by art. 106 of the Amendments to the Massachusetts Constitution, provides: “All people are bom free and equal and have certain natural, essential and unalienable rights; among which may be reckoned the right of enjoying and defending their lives and liberties; that of acquiring, possessing and protecting property; in fine, that of seeking and obtaining their safety and happiness. Equality under the law shall not be denied or abridged because of sex, race, color, creed or national origin.”
Article 10 of the Massachusetts Declaration of Rights provides in relevant part: “Each individual of the society has a right to be protected by it in the enjoyment of his life, liberty and property, according to standing laws. . . .”
Mendonza makes a separate argument that § 58A violates the prohibition in art. 26 against the requirement of excessive bail. Of course that provision is not literally applicable, since no bail — excessive or otherwise — has been required here at all. Mendonza’s argument must be that it is a premise of art. 26 that in all cases some bail must be allowed, but that it must not be excessive. This argument is made more difficult at the outset by the unavoidable concession that there has never been a right to bail in capital cases, see Carlson v. Landon, 342 U.S. 524, 545-546 (1952); Commonwealth v. Baker, 343 Mass. 162, 167-168 (1961), so that one must try to patch up the argument by the contention that there is an inherent risk of flight in all capital cases. But in the end, the premise stands on no firmer ground than the principal structural argument against preventive detention in general which we reject. We note that the Body of Liberties (1641), which Mendonza invokes and which in its opening clauses gives some color to his structural argument, concludes with exceptions for “Crimes Capital, and Contempts in open Court, and in such cases where some expresse act of Court [that is, the General Court] doth allow it.” Commonwealth v. Baker, supra at 165, quoting Bodies of Liberties, § 18.
General Laws c. 123, § 12 (1994 ed.), allows a ten-day emergency commitment based on a finding by a physician or psychologist of “reason to believe that failure to hospitalize such person would create a likelihood of serious harm.” No judicial finding is required at all. The person can be confined for up to fourteen days more pending a full hearing if the superintendent of the facility petitions for a full commitment under §§ 7 and 8. G. L. c. 123, § 6. Section 15 (b) authorizes a twenty-day observation pe
Mendonza argues that in the circumstances of his particular case the application of § 58A also violates the equal protection guarantees of the Fourteenth Amendment and of art. 12. His contention is that, because the determination of dangerousness in his case was based on circumstances that tend to show he was mentally ill, it is a denial of equal protection to order him detained only on clear and convincing proof of dangerousness while under Superintendent of Worcester State Hosp. v. Hagberg, 374 Mass. 271 (1978), a civil commitment on the same ground requires proof beyond a
The Commonwealth argues that the Supreme Court’s decision in United States v. Montalvo-Murillo, 495 U.S. 711 (1990), implicitly endorsed the three-day provision in the Federal statute. The Court there had before it
Several lower Federal courts have addressed the provision, construed it as the Commonwealth construes the analogous provision in § 58 A, but did not address the constitutionality of the continuance provision. See, e.g., United States v. Lee, 783 F.2d 92 (7th Cir. 1986); United States v. O’Shaughnessy, 764 F.2d 1035 (5th Cir. 1985).
Jenkins v. Chief Justice of the Dist. Court Dep’t, 416 Mass. 221 (1993), requires a probable cause hearing within twenty-four hours of a warrantless