Charlie Baker refiles bill to fix criminal justice loophole
There’s no substitute for good timing, and Governor Baker’s refiling of a bill to broaden the state’s laws on pretrial detention for those who pose an immediate danger to the community couldn’t be better.
It followed a decision by the Supreme Judicial Court that fairly begged for legislative action to close what amounts to a loophole in the current law. This particular loophole forced the high court to rule that a 43-year-old man charged with luring a 15-year-old girl to a hotel for sex would have to be released on bail pending his trial.
Because he was charged with statutory rape — he reportedly communicated with his victim via social media and she apparently agreed to meet him at a predetermined location — the court found the defendant, David W. Barnes, could not be held as a “dangerous person.”
In his concurring opinion (the court’s decision was unanimous), Justice David Lowy wrote that the “counterintuitive result requires further discussion and consideration by the Legislature. . . . As discussed in the court’s opinion, the pretrial detention statute does not list rape aggravated by age difference as a qualifying offense. Given today’s result, the Legislature may choose to consider this omission with alacrity.”
Baker used a speech to the Major City Chiefs of Police Association to announce that the dangerousness measure would be his first official bill filing of the new legislative session. It was originally filed last September, after the Legislature had ended its formal sessions. Last week it was referred to the Judiciary Committee in both branches.
Of course, not every defendant should be held in jail — most shouldn’t. But the state needs rules in place to identify and hold the ones who really do pose a danger.
In the past, courts sometimes used high bails as a way to ensure that suspects considered dangerous stayed behind bars — even though that’s not really the purpose of the bail system, which is only meant to ensure that defendants show up in court. That practice is rightly frowned on these days. The question is how — without the ability to use bail as a tool — courts can still make sure dangerous defendants stay locked up.
The bill Baker filed would not simply close the loophole pointed out by the SJC, but would also:
• Permit judges to consider more than just the charges before them when making a decision on whether to release a defendant.
• Revoke a defendant’s bail if the offender has violated a court-ordered condition of that bail, such as staying away from a victim — and without starting the dangerousness process from scratch.
• Make it a felony to cut off a court-ordered GPS
• Require police to fingerprint all arrestees “to ensure that decisions about release can be made with knowledge of a person’s true identity and full criminal history.”
Put together, the reforms would make the state’s system for determining whether pretrial detainees are indeed dangerous more effective.
No one expects judges to be able to see into the future and predict whether a defendant out on bail will commit another crime. But neither should we expect judges to rule on such matters with one hand tied behind their judicial robes — something that happens far too often. Baker’s bill would help them make informed, common-sense decisions.