Heard: May 6, 2019.
action commenced in the Supreme Judicial Court for the county
of Suffolk on February 28, 2019. The case was reported by
Catherine Langevin Semel, Assistant District Attorney
(Kimberly Faitella, Assistant District Attorney, also
present) for the Commonwealth.
Gilbert F. Nason, Jr., for the defendant.
Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher,
& Kafker, JJ.
Laws c. 276, § 58A, permits the pretrial detention of a
defendant, without bail, where the individual poses an
ongoing danger such that "no conditions of release will
reasonably assure the safety of any other person or the
community." To be detained pursuant to a finding of
dangerousness prior to trial, a defendant first must be
charged with one of an enumerated set of predicate offenses.
Among these is any "felony offense that has as an
element of the offense the use, attempted use or threatened
use of physical force against the person of another." G.
L. c. 276, § 58A (1).
defendant is alleged to have engaged in sexual activity with
a thirteen year old boy whom he met online, in violation of
G. L. c. 265, § 23A (statutory rape), and G. L. c. 265,
§ 13B (indecent assault and battery on a child). In
Commonwealth v. Barnes, 481 Mass.
225, 229-230 (2019), we recently determined that the rape of
a child, not by force but aggravated by age, does not
constitute a predicate offense under G. L. c. 276, §
58A, because the offense is not one of the enumerated
offenses identified in the statute and does not have as an
element the use, attempted use, or threatened use of physical
force. Put differently, under the dangerousness statute, G.
L. c. 276, § 58A, a person charged with statutory rape
cannot be held without conditions of release prior to trial.
Commonwealth argues that a charge for the distinct crime of
indecent assault and battery on a child under the age of
fourteen, at issue here, renders an individual eligible for
such pretrial detention, even where its more severe analog
does not. Compare G. L. c. 265, § 13B (maximum penalty
ten years in State prison), with G. L. c. 265, § 23A
(minimum penalty ten years in State prison). We disagree, and
conclude that a charge of indecent assault and battery on a
child under the age of fourteen may not form the basis for
pretrial detention under G. L. c. 276, § 58A.
following is taken from the agreed-upon statement of facts by
defendant was charged with two counts of aggravated rape of a
child, G. L. c. 265, § 23A,  and two counts of
indecent assault and battery on a child under fourteen, G. L.
c. 265, § 13B. He was arraigned in February
2019. At arraignment, the Commonwealth
sought a dangerousness hearing. See G. L. c. 276, § 58A.
of the District Court initially found probable cause to
detain the defendant pending a dangerousness hearing, and
allowed the Commonwealth's request for a three-day
continuance. The next day, however, the judge sua sponte
required the parties to appear at a second hearing to
determine whether any of the charges the defendant faced
qualified as a predicate offense under G. L. c. 276, §
58A, in light of our decision in Barnes, 481 Mass.
at 230. The judge concluded that none of the charges
qualified under the statute and that the defendant could not
be detained without bail.
following day, the Commonwealth filed an emergency petition
for extraordinary relief in the county court, pursuant to G.
L. c. 211, § 3. The single justice reserved and reported
the matter to the full court, and at the same time ordered
that a bail hearing be conducted in the District Court.
the pendency of these proceedings, the defendant was indicted
by a grand jury for the same offenses. In April of 2019, the
defendant was arraigned in the Superior Court and placed on
defendant maintains, and the District Court judge determined,
that the defendant could not be detained without bail pending
trial, given the crimes with which he had been charged. See
G. L. c. 276, § 58A.
release is governed by two statutes: G. L. c. 276, § 58
(bail statute), and G. L. c. 276, § 58A (dangerousness
statute). Under the bail statute, "[t]he preferred
pretrial disposition is release on personal
recognizance." Mendonza v.
Commonwealth, 423 Mass. 771, 774 (1996), citing G.
L. c. 276, § 58. Where release on personal recognizance
"will not reasonably assure the appearance of the person
before the court," conditions of release, including
bail, are appropriate. See G. L. c. 267, § 58. The
purpose of bail is to assure the appearance of the accused in
court. See Commonwealth v.
Brangan, 477 Mass. 691, 692, 699 (2017);
Commonwealth v. King, 429 Mass.
169, 174 (1999).
detention is a measure of last resort. See Brangan,
477 Mass. at 704 ("in our society liberty is the norm,
and detention prior to trial or without trial is the
carefully limited exception" [citation omitted]). Prior
to conviction, a criminal defendant is presumed not to have
committed the crimes charged. See Commonwealth
v. Madden, 458 Mass. 607, 610 (2010). Bail
set in an amount that the individual cannot afford, resulting
in "the functional equivalent of an order for pretrial
detention," Brangan, 477 Mass. at 705, is
permissible only where no other conditions or amount of bail
would "adequately assure the person's appearance
before the court." G. L. c. 276, §
58. In the absence of a motion by the
Commonwealth pursuant to G. L. c. 276, § 58A, any
potential danger posed by the defendant to the community does
not factor into the calculus. King, 429 Mass. at
the dangerousness statute, however, pretrial detention may be
permitted, in limited circumstances, where "no
conditions of release will reasonably assure the safety of
any other person or the community." G. L. c. 276, §
58A. See Mendonza, 423 Mass. at 774. Such a
determination is ...