Civil rights activists told lawmakers Tuesday passing Gov. Charlie Baker's bill to make it easier for police and the courts to detain defendants deemed a risk to the community would be taking a step backward from last year's criminal justice reform effort.
The first bill Baker filed in his second term (H 66) would allow judges weighing the release of a defendant to consider factors beyond the specific charges before them.
It would also expand the list of offenses that can be used to hold a defendant as a dangerous person before their trial and would permit prosecutors to seek a dangerousness hearing at any point in a criminal proceeding, not just at the outset.
"This legislation strengthens the ability of judges to enforce conditions of pretrial release and closes loopholes that currently limit or prevent effective action to address legitimate safety concerns," Baker told the Judiciary Committee on Tuesday afternoon.
He added, "We literally have a system now where a judge and a court have to make a decision about whether someone is dangerous based on one thing: the issue for which they are in front of the court that day. Nothing they've done before can become part of that conversation or that decision or that discussion. In addition to that, you can only call for a dangerousness hearing in very few instances."
The bill mirrors legislation Baker filed last year two months after a Weymouth police officer was killed by a suspect out on bail. Baker's proposal did not get a vote in either the House or Senate last session.
Baker said earlier this year that "timing" was the main reason his bill didn't move last session. He filed it after the Legislature had ended formal sessions, though House and Senate lawmakers did hold a committee hearing on the proposal.
Rahsaan Hall, the racial justice program director for the American Civil Liberties Union's Massachusetts chapter, said his organization opposes the bill because it has seen no evidence that suggests the specific crimes included in Baker's bill as predicate offenses for a dangerousness hearing make a person more likely to commit a violent act.
"Session after session, advocates for reform have been told that it could not move forward because there was the absence of empirical data to justify some of the progressive reforms that we had been advocating for," Hall said. "Now we sit on the heels of some pretty progressive and transformative legislation that was enacted last session and are presented with a bill that would dramatically draw back some of those reforms without a scintilla of evidence that the proposed reforms that are included in the governor's bill are rooted in science or data or any type of empirical analysis."
Responding to a question from Chairman Sen. Jamie Eldridge about whether there is data showing a correlation between the predicate crimes proposed by the governor and a likelihood of future violent crime, Undersecretary for Law Enforcement Terrence Reidy said he does not know of any.
"What I can tell you is, looking at the data and looking at the front pages of the newspaper, individuals that could have been held that the commonwealth was not allowed to move for detention commit crimes because these are the worst of the worst at times," he said.
Reidy told the committee about a case he personally handled in 2012 as a prosecutor in Worcester County in which a member of a white supremacy organization was pulled over and found to have 5,000 rounds of ammunition and nine high-capacity magazines in his car. The defendant was not licensed to carry a firearm.
"Due to the constraints and the bill as it is currently enacted, I was unable to request a dangerousness hearing in District Court or Superior Court after indicting this individual," Reidy said. "Members might not know, if you don't have a license and you have — let's say you have 50 guns in your house and you don't have a license to legally possess them — you can't move for a dangerousness hearing in Massachusetts because it's a misdemeanor."
The governor's bill, he said, would allow a district attorney's office to decide whether to request a dangerousness hearing and would then grant a judge the opportunity to either approve or decline that request.
Randy Gioia, deputy chief counsel of the public defender division of the Committee for Public Counsel Services, said he is concerned the governor's bill would lead to more people being locked up before trial and staying locked up for longer periods.
"You just passed a major criminal law reform, nationally renowned, that emphasized rehabilitation, diversion, giving people a second chance, keeping them out of the criminal justice system. This bill is a step backwards. It is unnecessary," Gioia told the committee. "Prosecutors have the tools they need now to move for dangerousness against people who are indeed dangerous. Give the reform bill that you passed last year a chance to work. This is not the time to make a change."
The bill includes a provision that would require that everyone arrested in Massachusetts be fingerprinted, not just those arrested for felony offenses.
Reidy said having all arrestees fingerprinted would "contribute to increasing the information available to prosecutors and judges so that better decisions can be made."
Rep. Michael Day asked the governor what the motivation of that provision was, given that it goes beyond the main thrust of the bill — getting dangerous people off the streets — and would result in non-violent offenders being added to various federal databases. Day mentioned a constituent who was arrested and fingerprinted for a non-violent offense that was later dismissed as a teen and was turned down from a military service academy when the fingerprints popped up in a database.
Rep. Jay Livingstone, a former prosecutor, told Baker that his proposed "great expansion" of fingerprinting was "incredibly surprising."
Baker told Day that part of the motivation for the proposal is that "there have been a number of instances where the courts have said, 'Gee, we just didn't know that about the person in front of us,' " and said the representative's point "is a good one and one that's probably worthy of further discussion."