GOAL Files Pre-trial Detention Bill

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GOAL Files Pre-Trial Detention Bill​

On Monday, May 4, 2009 the Massachusetts Supreme Judicial Court handed down a ruling regarding the holding of people in Massachusetts charged with unlawful possession of firearms. Specifically, the court ruled that it is unlawful to hold such persons under the dangerousness statutes in Section 58A of Chapter 276. This ruling came as a result of a lawsuit filed from a defendant who was held as a result of the Bristol County District Attorney Sam Sutter suing the current statute in an attempt to label people without a license as dangerous.

In a four to one decision the court ruled:
Conclusion: In holding that unlicensed possession of a firearm is not a predicate offense for purposes of § 58A, we are not unmindful of the dangers relating to unlicensed possession of firearms. Nevertheless, in the absence of clear legislative intent to the contrary, we cannot rewrite or torture the statute’s language to include this offense.

In the discussion of the case the court stated the following:
Unlicensed possession of a firearm does not, by its nature, involve a substantial risk that physical force against another may result. That a person possesses a firearm without a valid license does not itself pose a substantial risk that physical force against another may result. Rather, it is the unlawful use of a firearm that involves a substantial risk that physical force against another may result.

The elements of unlicensed possession of a firearm, see note 9, supra, do not require proof that a defendant purposefully evaded firearm licensing requirements, see Commonwealth v. Jackson, supra, let alone proof that a defendant’s failure to obtain a license was motivated by a desire to use the firearm for an illicit purpose.

Gun Owners’ Action League (GOAL) certainly agrees with the court’s ruling on this matter. Massachusetts laws are so poorly written and convoluted that it takes very little to run afoul of them with no criminal intention. With that, it would be an act of an unjust government to label a person dangerous and hold them without bail simply because they did not have the correct piece of paper. Apparently the court agrees.

GOAL does agree that there is a need to keep truly dangerous people off of the streets. That is why GOAL has filed a piece of legislation called “An Act Relative to the Pretrial Detention of Violent Offenders.” (The bill does not currently have a number.)

This proposed legislation is intended to give prosecutors and the courts a separate tool, aside from Section 58A. This Act does not affect the existing language in Section 58A thus leaving those tools in place. Instead, the new language provides a separate means to hold unlawful firearm offenders with a proven violent past. The language in GOAL’s bill makes the criteria very clear as to who can be held without bail. In order to meet the criteria set forth in our bill, the defendant would have to be:

1. Charged with a second or subsequent offense of felony possession of a weapon or machine gun; and
2. Has been previously convicted of a violent crime; and
3. Has served a committed term of imprisonment after sentencing had been carried out for said violent crime.

“By establishing a law with three pieces of clear criteria that must be met in order for the judge to order the defendant held under this language, we can provide the prosecutors of the state with a tool to keep violent offenders off the street.” said Jim Wallace, Executive Director of GOAL. “This legislation will also ensure that the people being held are not simply someone who does not have the right piece of paper. No citizen should ever be labeled dangerous and held without bail for not having the correct license. That we are able to produce clear laws that respect the rights of lawful citizens and severely punish the human criminal element is actually another example of the beliefs behind GOAL’s Civil Rights and Public Safety Act (www.MassGunLawReform.com).”

GOAL’s proposal is also stronger than the existing language in Section 58A. In our language, if a defendant meets the criteria and the judge agrees there are no conditions of release. Because of the clarity of the new language, there should be no doubt that the defendant in question has a proven violent past and is not someone who simply ran afoul of an indiscernible set of licensing laws.

GOAL would like to thanks Representative George Peterson for filing this legislation on our behalf as well as all of the co-sponsors that have signed on to the bill.


Sponsors:

Rep. George Peterson, Jr.
Senator Michael Moore
Senator Richard Moore
Rep. Bradley Jones
Rep. Elizabeth Poirier
Rep. Paul Frost
Rep. Daniel Webster
Rep. Todd Smola
Rep. Susan Williams Gifford
Rep. Anne Gobi
Rep. Geraldo Alicea
Rep. Denis Guyer
Rep. James Arciero
Rep. Robert Rice
Rep. Robert Spellane
Rep. William Pignatelli
Rep. David Sullivan
Rep. John Binienda
Rep. Angelo Puppolo, Jr.
Rep. Paul Kujawski
Rep. Danielle Gregoire
Rep. Stephen Kulik


An Act Relative to the Pretrial Detention of Violent Offenders

Chapter 276 of the Massachusetts General Laws shall be amended by inserting after Section 58B the following section:

SECTION 1: Chapter 276: Section 58C. Conditions for pretrial detention of persons accused of certain felony firearm offenses and violent crimes; hearing; order; review
Section 58C.
(1) The commonwealth may move, based on dangerousness, for an order of pretrial detention for a person who has been charged with a second or subsequent offense of felony possession of a weapon or machine gun as defined in section 121 of chapter 140 and has been previously convicted of a violent crime as defined in section 121 of chapter 140 having served a committed term of imprisonment after sentencing had been carried out for said violent crime.
(2) Upon the appearance before a superior court or district court judge of an individual charged with an offense listed in subsection (1) and upon the motion of the commonwealth, the judicial officer shall hold a hearing pursuant to subsection (3) issue an order that, pending trial, the individual shall be detained under subsection (4).
(3) When a person is held under arrest for an offense as outlined in subsection (1) and upon a motion by the commonwealth, the judge shall hold a hearing to determine if the conditions of subsection (1) exist to order a pretrial detention under subsection (4).
The hearing shall be held immediately upon the person’s first appearance before the court unless that person, or the attorney for the commonwealth, seeks a continuance. Except for good cause, a continuance on motion of the person may not exceed seven days, and a continuance on motion of the attorney for the commonwealth may not exceed three business days. During a continuance, the individual shall be detained upon a showing that there existed probable cause to arrest the person and that the person meets the criteria set forth in subsection (1). At the hearing, such person shall have the right to be represented by counsel, and, if financially unable to retain adequate representation, to have counsel appointed. The person shall be afforded an opportunity to testify, to present witnesses, to cross-examine witnesses who appear at the hearing, and to present information. The rules concerning admissibility of evidence in criminal trials shall not apply to the presentation and consideration of information at the hearing. In a detention order issued pursuant to the provisions of said subsection (4) the judge shall (a) include written findings of fact and a written statement of the reasons for the detention; (b) direct that the person be committed to custody or confinement in a corrections facility separate, to the extent practicable, from persons awaiting or serving sentence or being held in custody pending appeal; and (c) direct that the person be afforded reasonable opportunity for private consultation with his counsel. The person may be detained pending completion of the hearing.
(4) If, after a hearing pursuant to the provisions of subsection (3), the district or superior court justice finds by clear and convincing evidence that the defendant meets the criteria of subsection (1), said justice shall order the detention of the person prior to trial. A person detained under this subsection shall be brought to a trial as soon as reasonably possible, but in absence of good cause, the person so held shall not be detained for a period exceeding ninety days excluding any period of delay as defined in Massachusetts Rules of Criminal Procedure Rule 36(b)(2). A justice may not impose a financial condition under this section that results in the pretrial detention of the person. Nothing in this section shall be interpreted as limiting the imposition of a financial condition upon the person to reasonably assure his appearance before the courts.
(5) Nothing in this section shall be construed as modifying or limiting the presumption of innocence.
 
GOAL Files Pre-Trial Detention Bill​

On Monday, May 4, 2009 the Massachusetts Supreme Judicial Court handed down a ruling regarding the holding of people in Massachusetts charged with unlawful possession of firearms. Specifically, the court ruled that it is unlawful to hold such persons under the dangerousness statutes in Section 58A of Chapter 276. This ruling came as a result of a lawsuit filed from a defendant who was held as a result of the Bristol County District Attorney Sam Sutter suing the current statute in an attempt to label people without a license as dangerous.

Should be "using," not "suing."
 
In order to meet the criteria set forth in our bill, the defendant would have to be:

1. Charged with a second or subsequent offense of felony possession of a weapon or machine gun; and
2. Has been previously convicted of a violent crime; and
3. Has served a committed term of imprisonment after sentencing had been carried out for said violent crime.


Why didn't you also add that the crime needs to be committed on a Sunday during a eclipse at low tide during a snowstorm in July on a leap year?




“By establishing a law with three pieces of clear criteria that must be met in order for the judge to order the defendant held under this language, we can provide the prosecutors of the state with a tool that they will never be able to use to keep violent offenders off the street.” said Jim Wallace, Executive Director of GOAL.


Fixed it for you.
 
Why didn't you also add that the crime needs to be committed on a Sunday during a eclipse at low tide during a snowstorm in July on a leap year?
I am sorry that due process has become an inconvenience to you... [laugh]

Oh wait, no I am not... [wink]

That said - not sure why you need both of these?

2. Has been previously convicted of a violent crime; and
3. Has served a committed term of imprisonment after sentencing had been carried out for said violent crime.

Wouldn't #2 be sufficient to satsify whatever you are going for with 2 and 3?
 
Agreed... Seems they are trying to close or create some loophole that I can't see...

No... I believe it was just poorly thought out. Another bill that is written to sound like it is doing something good but does not really accomplish anything.
 
I'm pleased to see my Rep, Arciero, is on GOAL's A list. I sent him a note thanking him for the continued 2A support. Every little bit counts.

There is a D next to his name, but I won't hold that against him since he seems to be one of the good guys. [wink]

My thanks goes out to everyone at GOAL for fighting the good fight.
 
No questions... it is pretty black and white and so restrictive that it will never be used.
Oh, it will get used, like so many laws - not as a charge, but a threat to force a plea... [sad2]

If our douchiticians really wanted to lower crime stats, they need to take a hard look at the revolving door that is our court...

Of course when you do that, you realize that there is a pipe-line operating that starts rotating them through at 15 and training them to plead out and commit more and more violent crimes before they have really get punished...

Then you'd realize all the failings of the narco-economy created by prohibitionII and that would be too painful to accept...

So, we'll just pass some more inane laws that never get used outside the hallway negotiations with the ADA and the appointed attorneys...
 
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