Detention in gun cases challenged
Immediately after he took office in January 2007, Bristol District Attorney C. Samuel Sutter took a tough new approach to reducing the violent gun crime that has ravaged cities such as Fall River and New Bedford.
Under the controversial policy, his prosecutors would ask a district court judge to detain for up to 90 days anyone arrested for illegally carrying a gun, regardless of the circumstances. Over the past two years, his office has requested 197 so-called dangerousness hearings for such gun felonies and persuaded judges to jail defendants 141 times, he says. The move has drawn praise from police chiefs and New Bedford Mayor Scott W. Lang, a former prosecutor who says the tactic takes dangerous people off the streets before trial.
Here's a tough one. I don't think anyone objects to a prosecutor aggressively going after folks breaking the law - specifically gun laws - as opposed to just slapping their wrists and sending them back through the revolving doors. However, this is one of those cases of "when your only tool is a hammer" - before long, *all* cases involving guns are going to start to look like they need a "90 days in the hole" nailing. Even little ones like folks letting their permits lapse, because once you're hit with a felony, you're no longer eligible to own a firearm ever again...
Which, naturally, is the point of all this, right?
I mean, let's face it. They don't give a hairy rat's ass about whether or not these scumbags do extra time for the gun. They want to boost their conviction rates, and the 90 days without bail is just enough to scare 'em into taking a plea bargain. So their conviction rate goes up, they look like they're doing something about crime, and they've got a shiny new precedent for bending over gun owners and having their way with them...
But the news isn't all bad:
But yesterday, the state's top judge signaled that Sutter may have overstepped his authority by using a law designed to hold dangerous defendants in domestic violence cases against anyone arrested for illegally carrying a gun.
Speaking from the bench in Boston during oral arguments in a legal challenge to the policy, Supreme Judicial Court Chief Justice Margaret H. Marshall said Sutter faces an uphill battle, and she appeared sympathetic to defense lawyers who characterized the approach as unconstitutional.
Unfortunately, she's talking about the eighth amendment unconstitutional rather than the second, but still, it's a start...
I've got a novel idea. Why don't we take all these dangerous criminals, the ones who are the folks that the DA is trying to get behind bars, and, you know, keep them the hell behind bars? Make them actually serve their full sentences? Not slap them on the wrist and send them on their way? Seems to me that'd stop the problem dead in its tracks...
*Link to story sent by alert reader CW. Thanks!
That is all.
10 comments:
My 2¢ worth: This story is both confusing and scary.
Confusing because I can't tell exactly what the DA is doing, or to whom this policy applies. Are cops in Bristol arresting people specifically for carrying illegally, or are they arresting people for other probable cause and tacking on an illegal gun charge? The story specifies "felony gun possession charges" -- what does that mean under Connecticut law?
Scary because the wording of the article indicates the DA is demanding that people arrested for carrying illegally be jailed for 90 days before their trial -- that is, before they've been found guilty of anything. What happened to "presumption of innocence?"
wolfwalker,
What's happening is that anyone arrested for a gun charge is being held for 90 days before trial.
Now, the hard part is that the folks getting arrested are the gang-bangers with stolen firearms, so it's really hard to feel sorry for them being tossed in the klink.
However, once they realize they can get away with this, it's open season on gun owners...
Like I said, the old "when the only tool you have is a hammer, all your problems start to look like nails" mindset...
OK. Next question: how is this mandatory 90 days affected by bail? Any defendant who can't make bail is in jail until trial anyway. Is a defendant on a gun charge up the river for 90 days, no questions asked, no argument allowed, even before he's allowed bail? If so, then that's clearly unconstitutional. If not, then it's no different from any other arrest on any other charge.
This reminds me of the forfeiture rule put in place about twenty years ago as part of the drug-law "reforms" under Reagan. Abuse isn't just possible, it's inevitable.
Let me try to straighten this out a little.
The statute here is Massachusetts GL c 276, §58A. It allows the DA to ask the arraignment judge in some types of cases to hold a criminal defendant (or impose conditions on his release) after a hearing based on the dangerousness of the defendant.
A "dangerousness" detention is independent of bail, which can also be imposed at the same time. Bail is supposed to be based on reasonably ensuring that the defendant reappears in court.
There are a couple of other independent bases for pretrial detention in Massachusetts criminal cases. A defendant who is already out on bail can have his bail on the older charge revoked if he is charged with a new offense, and there is a quasi-civil procedure involving examination in the courthouse by a forensic psychologist and usually a trip to Bridgewater (or a similar facility) if the defendant is too high or too crazy to be arraigned.
The length of a dangerousness detention is usually referred to as 90 days, but that's not quite accurate. It's a minimum of 90 days. The statute provides that the calculation of 90 days excludes "any period of delay as defined in Massachusetts Rules of Criminal Procedure Rule 36(b)(2)." A defendant can also have two 90 day periods to worry about if he has been arrested and arraigned in District Court and then indicted and arraigned in Superior Court on the same charges.
While there is a hearing for a dangerousness detention, the ordinary rules of evidence do not apply. The standard is whether clear and convincing evidence shows that "no conditions of release [of the defendant] will reasonably assure the safety of any other person or the community"
What the Bristol Co DA has done is to ask for a dangerousness detention in every case involving carrying without a license under GL c 269, §10(a), which is not the same as possession without a license under GL c 269, §10(h). Roughly speaking, 10(a) is carrying outside your home or business and carries an 18 month minimum mandatory jail sentence (or 2 1/2 years in state prison), while 10(h) has no minimum.
The principal issue in the SJC case argued Monday is whether a 10(a) violation is one that falls into the grab bag definition of a felony that “by [its] nature involve[s] … substantial risk that physical force against the person of another may result" under G. L. c. 216, §58A.
anyone who is against DA Sutter's policy has lost his mind. We are not talking about the rural areas of Berkshire County. We are talking about gang members, drug dealers and thugs who are carrying loaded illegal firearms to do harm to the communities. You guys should read some stories in the Fall River Herald News or Taunton Gazette. Illegal gun related incident have plumetted in Bristol County since the DA started this policy. It works. You have to remember, Sutter is not anti-gun, he is anti-illegal gun. There is a huge huge difference. And you should also remember that just because prosecutors request a dangerousness hearing doesn't mean the defendant is held. There is a full blown hearing, and the judge can certainly rule the person not dangerous. All you have to do is look at all the support he has in the county, and you will realize that he is an innovator. Don't hate on what you don't know about.
you guys are confusing legal firearms with illegal ones. It's the illegal ones that are causing so much damage in our inner cities. Responsible gun owners are not targeted. I just want you to all know the facts, and not overreact to some spin. The policy is a level headed one where only those charged with felony carrying (i.e. out in public, not at home) of an Illegal firearm are being subjected to these hearings. And it's not as if they are all being detained. The policy works!!!
Anon,
There are very few honest-to-goodness "illegal guns" out there. There are people who have guns illegally, but there's nothing illegal about the guns themselves.
While DA Sutter may have only the best intentions and may only go after the worst of the worst offenders, there's absolutely ZERO guarantee that the next DA won't use this now accepted method to target law-abiding gun owners who have let their permits lapse.
It's simply too dangerous an option to allow to go unchecked.
Anon-
I'm not at all sure that it's right to conclude that Sutter's policy is the cause of the initial reduction in gun crime in Bristol Co. in 2007 and early '08. In any event, the numbers have seemed to be starting to increase again in the last six months or so.
The numbers, (however you measure gun crime) are relatively small, so the impact of a few players getting back on the street, a gang turf war or the bad guys simply concluding that the PR has made little difference in the actual chance of getting caught and locked up may be responsible.
I think it's an open question whether the Sutter policy has really resulted in more bad guys being held.
We still have an enormous problem in the Commonwealth with judges who really don't get the point that the way to protect society from the relatively small number of goblins responsible for the vast majority of crime is to lock them up for a long time. Treating criminals better than their victims and trying to reform them just doesn't work.
I have grave reservations about Sutter's policy because I don't think it really works. If the prosecutor files for dangerousness all of the time 10(a) is involved, they wind up diluting their credibility with the judges. Sutter's office has got something of a problem in this regard both with dangerousness and bail requests.
I don't think Sam Sutter is much of an innovator, or particularly effective for that matter. I think his approach to requesting dangerousness hearings in all 10(a) cases reflects his underlying attitude that only the police should have guns.
Jay-
While I understand your point distinguishing illegal firearms from persons illegally carrying them, Massachusetts has more foolish rules about what's legal than most parts of the U.S. For example, if you changed the gas block on your Bushmaster to one with a bayonet lug you'd have an illegal gun on your hands. The most common illegal gun in the hands of criminals, however, is probably one with a defaced serial number.
Oh, certainly. Although I'd posit that illegally shortened weapons (cut-down barrels, removed stocks, etc.) are more prevalent than serial numbers.
Here's a story from the Fall River Herald that looks like it's pretty much verbatim from the DA's press release. It does have some argument that there has been a reduction in gun crime, but I would suggest that the numbers are inconclusive.
Dangerousness hearing continued
By John Moss
Herald News Staff Reporter
Posted Jan 15, 2009 @ 10:45 PM
Fall River —
A dangerousness hearing for two people charged with an armed home invasion was further continued Thursday in District Court to Jan. 23.
Matthew Vultao, 34, of 331 Sunset Hill, is charged with home invasion, possession of a sawed-off shotgun and four counts of armed assault in a dwelling with a firearm in connection with the Jan. 3 incident at 849 Walnut St.
Veronica Roman, 27, of 145 Suffolk St., is charged with home invasion, armed assault in a dwelling with a firearm and assault and battery with a dangerous weapon.
The pair remains held without bail.
The two defendants allegedly wore ski masks, and Vultao allegedly was carrying a sawed-off shotgun when they entered the home occupied by a woman and a one-year-old child.
The illegal firearm-related dangerousness hearing will be Bristol County District Attorney Sam Sutter’s 200th since he took office two years ago. Sutter’s prosecutors have triumphed in 142 of the 199 illegal-firearm related dangerousness hearings held in the county’s four district courts, said Gregg Miliote, a spokesman for the DA’s office.
During the past two years, Bristol County has seen a corresponding decline in illegal gun violence, he said.
In 2006 in New Bedford, some 38 individuals were shot. Over the past 24 months, the rate of shootings has been cut by more than 50 percent, Miliote stated.
Reports of shots fired in Fall River and Taunton have also dropped since 2006. Fall River saw a 36 percent decrease in shots fired from 2006 to 2007. In 2008, reports of shots fired in Fall River have remained nearly the same as in 2007. Taunton also saw its shots fired calls decrease from 118 in 2006 to 86 in 2007. The number of shots fired in Taunton in 2008 remained about the same, with Taunton police reporting 84 shots fired calls in 2008, Miliote reported.
Recently, Sutter went before the state Supreme Judicial Court to argue that felony illegal firearm crimes are covered by the “Dangerousness Statute,” a law enacted in 1994 that allows for pretrial detention of 90 days after a judge finds a defendant “dangerous.”
During the arguments before the SJC, Sutter maintained that the text of the statute clearly states that district attorneys may move for a dangerousness hearing on “any felony that by its nature involves a substantial risk that physical force against the person of another may result.” Sutter has constantly asserted that the Legislature unquestionably intended the statute to cover felony firearm offenses, especially in view of the facts that about 100 gun-related homicides are reported statewide and that more than 800 people are treated in Massachusetts hospitals for gun shot wounds each year.
E-mail John Moss at jmoss@heraldnews.com.
http://www.heraldnews.com/homepage/x497793655/Dangerousness-hearing-continued
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