The Kickham Comment - Boston Criminal Attorney Blog
In a classic liberal-conservative split, a recent Massachusetts Supreme Judicial Court (SJC) ruling has held that persons who are found to be in illegal possession of a gun or firearm cannot be held in jail pending trial. The ruling is important because many such defendants have been held pending trial, under a state law passed in the 1990’s that was designed to curb domestic (i.e., family) violence. That law, known as the “Dangerousness Statute” was initially enacted as a way to cut down on domestic violence by giving prosecutors and judges the power to hold someone who had only a minor criminal record, but was considered a threat to a spouse or significant other.
After its passage, some District Attorneys’ offices in Massachusetts began to use the Dangerousness Statute to argue that illegal possession of a gun or firearm constituted adequate “dangerousness” to the public, to satisfy a motion to hold the gun violator in jail pending trial. Some District Attorney’s offices saw in the statute, a new tool to rid the streets of violent offenders who are found by police to be carrying a gun illegally. (It will surprise no one that, typically, violent offenders do not carry firearms licenses, or “FID Cards”.) In a 4-to-1 ruling earlier this week, the SJC ruled that gun possession violators can no longer be held in jail under this statute, while awaiting trial. In an extremely controversial decision, the court ruled that illegal gun possession is a “passive and victimless crime.” The court ruled that persons charged with possessing illicit firearms can no longer be held without bail (under this particular statute) as a “danger to society.” (Note to the Justice Spina: While perhaps technically accurate, using the words “passive and victimless crime” to describe the carrying and concealment of an illegal gun, is not exactly the wisest of grammatical choices. And I say this as a Massachusetts criminal defense attorney.)
While several District Attorneys’ offices had used the statute for holding such defendants without bail, it was the office of Bristol County District Attorney C. Samuel Sutter which used it the most. He did so as part of his get-tough law enforcement strategy to cut down on gun violence, by seeking pretrial detention for every person charged with illegal gun possession in his jurisdiction, which includes the high-crime area of New Bedford. His office used it as standard procedure in all illegal firearms arrests, and since taking office, Sutter has sought 269 gun detention cases and prevailed in 163 of them. The case went to the high court after a lower court refused Sutter’s request to hold several suspects on gun charges without bail for 90 days, and Sutter appealed to the SJC. In practical terms, the high court in this case was acting to end confusion among judges: In Bristol County, a Superior Court judge refused to apply the law to one defendant found to be illegally carrying a gun, while a Taunton District Court judge concluded the statute did apply to another defendant charged with the same crime.
Predictably, this ruling has caused a storm of controversy. I’ll talk about that in my next post.