The Massachusetts Supreme Judicial Court today clarified the types of crimes that qualify for pretrial detention pursuant to the dangerousness statute. The names of the cases are Scione v. Commonwealth and Commonwealth v. Barnes.
The dangerousness statute allows a judge to hold a defendant without bail pending trial if: (1) the charge is a predicate offense pursuant to the statute; and (2) the judge finds there are no conditions of release that would assure the safety of the community or any other person. Some predicate offenses, such as burglary, arson, violation of a restraining order, and unlawfully carrying a gun, are specifically listed in the statute. However, even if a crime is not specifically listed as a predicate offense, it still qualifies for pretrial detention if: (1) it is a felony that has as an element of the offense the use, attempted use, or threatened use of physical force against another person; (2) it is a felony that involves a substantial risk that physical force against another person may result; or (3) it is a felony or misdemeanor that involves abuse (as defined in the restraining order statute).
After allegedly having sex with a 15-year-old girl in a hotel, Barnes (who was 43 years old) was charged with aggravated child rape. The Commonwealth moved to have him held without bail and a district court judge detained him. Barnes appealed to the superior court, arguing that the crime of aggravated child rape did not qualify as a predicate offense pursuant to the statute. A superior court judge agreed and the Commonwealth appealed. Aggravated child rape is not an offense specifically defined as a predicate offense in the statute. Therefore, in order to qualify, the crime must have an element of the use, attempted use, or threatened use of physical force. In order to convict the defendant in this case of aggravated child rape, the Commonwealth will need to prove the defendant had sex with a child between the ages of 12 and 16, and there was more than a 10-year gap between the age of the alleged victim and the age of the defendant. The Commonwealth does not need to prove the defendant committed or attempted to commit an act of force to convict him. Accordingly, defendants charged with aggravated child rape are not eligible for pretrial detention under the dangerousness statute.
Meanwhile, after police officers reported to Scione’s ex-girlfriend’s home to investigate the report of a fire, they discovered a homemade improvised explosive device (IED). He was charged with placing a destructive or incendiary device with the intent to either: cause panic, fear, or apprehension in another person; or to explode or ignite. This crime is also not specifically listed as a predicate offense. A district court judge allowed the Commonwealth’s motion to hold him without bail, concluding the crime involved an element of abuse. Scione appealed and the SJC agreed he was properly held without bail. Scione and the victim had dated for four years, but had broken up six years prior to the placement of the IED. During those six years, the victim’s family had observed the defendant lurking around her house and during the week before the fire, the defendant was seen throwing candy at the victim’s bedroom window. The Court concluded these facts satisfied the abuse requirement in the dangerousness statute.
It’s worth noting that there is legislation pending that would include aggravated child rape as an offense eligible for pretrial detention.