Last week, Governor Deval Patrick signed an Act Relative to Domestic Violence. The Act makes important changes to a number of laws that govern domestic violence prosecutions in the Commonwealth. The criminal justice system has been in turmoil since the arrest of Jared Remy on charges that he murdered his girlfriend. Remy pled guilty to the murder in May of 2014 and is currently serving a life sentence. The criticism levied at the District Attorney’s Office for not initially seeking bail on Remy led to chaos in Middlesex County district courts, as prosecutors began seeking bail or detention on every domestic case. A recent Boston Globe article chronicled the aftermath of the Remy case in the Middlesex District Attorney’s Office.
The new law contains some commonsense proposals to prevent domestic violence. People under arrest for domestic violence must now wait six hours before being bailed out of a police station. If the defendant is brought directly to court, he must wait three hours before his arraignment. These cooling-off periods are a good idea. The law also allows the officials who are responsible for setting bail (either a bail commissioner or a judge) to have complete access to the defendant’s criminal history and pending or prior police reports related to the defendant. Providing this information to the person setting bail is a good idea.
The new law also contains changes to the rule regarding the imposition of bail. For example, when imposing a cash bail on the defendant, a judge used to consider only whether the defendant was likely to appear in court. However, under the new law, the judge also must consider the safety of the alleged victim, any other individual, or the community. But the most startling change to the current rules involves dangerousness hearings.
The Massachusetts dangerousness statute allows a judge to hold a defendant without bail pending trial in limited circumstances. Before the enactment of the new law, judges were required to hold hearings where witnesses would testify in open court and be subject to cross-examination. The new law requires the judge to consider the hearsay contained in police reports instead of requiring live witnesses. More troubling, the new law prohibits the defendant from calling the alleged victim to testify without getting prior approval from the judge. The Massachusetts Supreme Judicial Court has previously ruled in a case called Mendonza v. Commonwealth that dangerousness hearings were constitutional because they allowed defendants to cross-examine the prosecution witnesses and call their own witnesses. Such safeguards were eliminated by the new law. Therefore, the new law likely violates defendants’ substantive due process rights and will be ruled unconstitutional.
While there are good aspects to the new law, the restrictions on criminal defendants’ constitutional rights are alarming and will certainly be subject to court challenges.