The Massachusetts legislature is considering amending Section 58A of Massachusetts criminal laws, allowing the Commonwealth to hold a defendant without bail for up to 90 days under the dangerousness statute. The amendment is in response to Commonwealth v. Thomas, where the Massachusetts Supreme Judicial Court held that possession of a firearm without an FID card is not an enumerated felony or one that involves a substantial risk of physical force against another person.
The legislation is being pushed by Bristol County District Attorney Samuel Sutter. Bristol County District Attorneys have been aggressive in using the dangerousness statute to attempt to hold defendant's without bail prior to trial. Types of cases where dangerousness hearings have been requested include, assault and battery with a dangerous weapon, 4th offense OUI charges and weapon offenses. As an experienced Massachusetts criminal defense attorney, any case involving a serious injury, weapon or multiple offense OUI may require preparation for a dangerousness hearing. Often these hearings provide a benefit to a defendant as the defendant is given an opportunity to cross examine the Commonwealth's witnesses.
Prior to Thomas, in any case involving a firearm, the district attorney's office would seek a dangerousness hearing under Massachusetts law. The Thomas case held that possession of an unregistered firearm is not a criminal offense that in itself involves the risk of danger as the crime is essentially a regulatory crime.
While the statute may be amended in early January when the legislature reconvenes, a Massachusetts criminal lawyer may seek to challenge the statute on due process grounds as a detention without bail prior to trial is a serious deprivation of liberty that implicates constitutional limitations by the court.
