Massachusetts Legislature May Allow Juries To Decide Sex Offenders’

Not that many people outside of the criminal defense profession or the criminal justice system are aware of this, but in Massachusetts, once a convicted sex offender’s prison sentence is finished, the story isn’t necessarily over. You see, once a convict’s criminal sentence for a Massachusetts sex offense has been completed, the state has the right to seek an (involuntary) civil commitment of that person, if in the Commonwealth’s opinion, that person continues to pose a threat to the public if he (or she) is released. This process is known as a “civil commitment petition,” and if the Commonwealth’s petition and argument is successful, the defendant is transferred out of the prison he has served his criminal sentence in, and held (against his will, obviously) under civil law in the state hospital for the sexually dangerous, which is Bridgewater State Hospital. There, he will be held and treated indefinitely, until when (or if) medical authorities determine that he no longer poses a threat to the public if released.

That scheme can make sense from both a correctional, as well as public safety, point of view. Notwithstanding the fact that I am a practicing Massachusetts criminal defense attorney, I can easily acknowledge that it makes no sense to allow a serial rapist or serial child abuser to be released after completing a criminal prison sentence, solely because “X” number of months or years has been served, if that convict remains just as dangerous at the completion of his criminal sentence, as he was the day he began it. The critical issue is, however, who should decide this question – a judge or a jury? Historically in Massachusetts, it is the defendant who has been allowed to make that choice whenever the Commonwealth filed such a petition – not the particular District Attorney’s office filing the petition. What’s the big deal with that, you ask? Well, most defense attorneys representing a convict at such a trial would choose to have the matter heard by a judge, not a jury, and a prosecutor has had no say in the matter. The reason that most defendants choose to have the matter tried before a judge, is that many defense attormeys believe that historically, judges are more likely to release a convict, than a jury. Judges typically decide this issue based upon very formal, and justifiably demanding, legal criteria before granting a prosecutor’s petition. The Commonwealth must meet specific legal criteria in demonstrating that the convict suffers from a “mental abnormality or defect,” therefore making him likely to re-offend. A good number of judges have historically denied those petitions, because judges interpret those petitions very strictly. The result: Massachusetts sexual offense convicts are released, and many re-offend. This was witnessed most recently in a widely-publicized sexual assault at Massachusetts General Hospital.

In that particular case, the District Attorney’s office that was involved, had petitioned a court to civilly commit the convict at the end of his sentence. At the defendant’s request, the matter was heard before a judge, and the judge denied the prosecutor’s request, finding that the Commonwealth did not meet its burden of proof, and therefore that the convict did not pose a continued threat to the public if released. As fate would have it, the convict did re-offend, committing a sexual assault in Massachusetts against a woman, seriously injuring her. Predictably, the media in Boston and elsewhere reported that a judge released this person, and a public uproar (justifiably) followed. Many average citizens believe that too many judges are too lenient in deciding these petitions, and several media observers have noted that these petitions would be better decided by a jury chosen from the community, rather than a judge.

As a result, Middlesex County District Attorney Gerry Leone has filed a bill with the Massachusetts legislature, which would allow either the defendant or the Commonwealth to demand a jury trial. The thinking behind this approach is that a jury would be more sensitive to the risk of a convicted sex offender re-offending, and hence more likely to grant the prosecutor’s petition. As a Boston sex offenses lawyer, I don’t necessarily object to the idea of allowing a jury to hear the evidence in such petitions, and to decide the matter based on that evidence. Despite the perception held by some people that juries will grant these petitions more frequently than judges, the statistical evidence doesn’t necessarily bear this out. If, as a Norfolk County criminal defense lawyer, I truly believe that a convict who has served his or her sentence does not suffer from a mental abnormality or defect making him or her likely to re-offend, I have little doubt that I can make that case just as convincingly to a jury as I can to a judge.

And equally importantly, the public’s confidence can be restored in the criminal court system. When terrible incidents like the recent one I discussed above occur, many in the public decry “liberal judges.” This is despite the fact that most all the judges I know are responsible and fair jurists. If more of these decisions are placed in the hands of juries, that apprehension can be removed.

Truly dangerous sex offenders should be confined after their criminal sentences, and the public should be protected. (I wouldn’t want my wife, myself or someone I care about to be made a victim, either.) But let’s conduct this review process in a manner that maximizes public confidence.