Aime v. Com.

Citation611 N.E.2d 204,414 Mass. 667
Parties, 61 USLW 2664 Carlito AIME v. COMMONWEALTH.
Decision Date05 April 1993
CourtUnited States State Supreme Judicial Court of Massachusetts

Edward M. Altman, Daniel Kanstroom & Christopher Sundermeier, for plaintiff.

Jane A. Sullivan, Asst. Dist. Atty. (Ralph J. Cinquegrana, Asst. Dist. Atty., with her) for Com.

Scott Harshbarger, Atty. Gen., Pamela L. Hunt & William J. Meade, Asst. Attys. Gen., for Attorney Gen. & others, amici curiae, submitted a brief.

William J. Leahy, Brownlow M. Speer & Michael R. Schneider, for Committee for Public Counsel Services, amicus curiae, submitted a brief.

Andrew Good, for Massachusetts Ass'n of Criminal Defense Lawyers, amicus curiae, submitted a brief.

Before LIACOS, C.J., and WILKINS, ABRAMS, NOLAN, LYNCH, O'CONNOR, and GREANEY, JJ.

LIACOS, Chief Justice.

The 1992 amendments to the Massachusetts bail statute (amendments) provide that an official authorized to admit a prisoner or an arrested person to bail (judicial officer) may refuse to release that person if the judicial officer determines, in the exercise of his or her discretion, that "such release will endanger the safety of any other person or the community." St.1992, c. 201, § 3, amending G.L. c. 276, § 58 (1990 ed.). The amendments also mandate the judicial officer take into account the "nature and seriousness of the danger to any person or to the community that would be posed by the prisoner's release" when determining the amount of bail. St.1992, c. 201, § 4. The plaintiff, Carlito Aime, challenges the constitutionality of these provisions. We hold that the challenged portions of the amendments violate the due process clause of the Fourteenth Amendment to the United States Constitution.

On October 8, 1992, Boston police searched Carlito Aime's apartment. The search yielded a small quantity of crack cocaine as well as approximately $44,350 in cash. Aime was arrested. The next day, Aime was arraigned in the Dorchester Division of the District Court Department on charges of possession of a class B controlled substance with intent to distribute, in violation of G.L. c. 94C, § 32A (1990 ed.). At the arraignment, the prosecutor briefly described the circumstances of Aime's arrest and recommended that bail be set at $10,000. Aime's counsel requested that the court set bail at $200. He based this request on Aime's steady record of employment, the presence of Aime's family in the courtroom, and Aime's roots in the community. 1

Citing the 1992 amendments to the bail statute, the judge rejected both of these proposals. "[U]nder the new bail laws just signed yesterday," the judge stated, "this man is a danger to the community. He's a dealer in drugs, at least on the surface he has all of the paraphernalia that needs to be. And that, with this new bail statute, it's for keeping the people like this individual in court." The judge proceeded to set bail in the amount of $100,000 cash or $1,000,000 surety. 2

Aime immediately requested a de novo review of the bail determination in the Superior Court. On October 13, 1992, a Superior Court judge heard oral arguments and ruled against Aime. 3 Aime subsequently sought an expedited bail review by a single justice of this court pursuant to G.L. c. 211, § 3 (1990 ed.). Aime argued that the amendments to the bail statute violate the Eighth and Fourteenth Amendments to the United States Constitution as well as arts. 1, 10, 12, and 26 of the Massachusetts Declaration of Rights. 4 On October 29, 1992, a single justice heard oral arguments. The single justice found that "the proceedings in the District Court apparently were not conducted in accordance with the requirements of due process (see United States v. Salerno, 481 U.S. 739 [107 S.Ct. 2095, 95 L.Ed.2d 697 1987] )." Consequently, he ordered that Aime's bail be reduced to $10,000.

On November 3, 1992, the single justice reserved and reported to the full bench the "case" and the "general question of law as to what procedural protections due process considerations require" when a judge seeks to apply the amendments to the bail statute. The single justice also reported "the specific question whether [Aime's] due process rights were denied" in the present case. See Mass.R.A.P. 5, as amended, 378 Mass. 930 (1979). 5

At the outset, we must respond to the Commonwealth's argument that this report should be discharged as moot. See Attorney Gen. v. Commissioner of Ins., 403 Mass. 370, 380, 530 N.E.2d 142 (1988), and cases cited. The Commonwealth points out that Aime no longer has a personal stake in the outcome of this litigation. Aime has posted bail following the order of the single justice, and the Commonwealth reports that he was subsequently indicted for unlawful possession of a controlled substance. As the single justice found, however, the present case involves an issue "of public importance, capable of repetition, yet evading review." Superintendent of Worcester State Hosp. v. Hagberg, 374 Mass. 271, 274, 372 N.E.2d 242 (1978). In such circumstances, we do not hesitate to reach the merits of cases that no longer involve a live dispute so as to further the public interest. Id.

Prior to the amendments, the bail statute mandated the release of an arrestee on personal recognizance without surety unless a judicial officer determines that "such a release will not reasonably assure the appearance of the prisoner before the court." G.L. c. 276, § 58 (1990 ed.). 6 The statute also directed the judicial officer to take into account several factors in determining the amount of bail. 7 Thus, the amendments to the statute create an additional ground for refusing to release an arrestee: An arrestee may be denied release if "such release will endanger the safety of any other person or the community." St.1992, c. 201, § 3. The amendments also direct judicial officers making bail determinations to take into account an additional factor: the "seriousness of the danger to any person or the community that would be posed by the prisoner's release." St.1992, c. 201, § 4.

Aime argues that the amendments violate the due process clause of the Fourteenth Amendment because they infringe on the fundamental right to be free from arbitrary governmental detention. Aime notes that the amendments do not require that the Commonwealth prove the dangerousness of an arrestee as a predicate to detention. Aime points out that the amendments apply to all arrestees, prior to their conviction of the crimes alleged, regardless of the seriousness of the crimes with which they are charged. In these circumstances, Aime argues, the amendments create a broad preventive detention scheme whereby judicial officers may refuse to release arrestees merely suspected of being dangerous. Such an infringement on individual liberty, Aime claims, is excessive in relation to the governmental interest in protecting the public.

Aime also argues that, even if the infringement on individual liberty occasioned by the amendments was narrowly tailored to further that governmental interest, the amendments do not provide sufficient procedural safeguards against an erroneous deprivation of liberty. He notes that the amendments do not provide that arrestees have the right to testify in their own behalf, that the amendments do not provide the right to cross-examine adverse witnesses, and that the amendments do not require the Commonwealth to meet any burden of proof that an arrestee presents an identifiable threat to society. 8

The Commonwealth argues in response that the amendments do not create a preventive detention scheme. To support its argument, the Commonwealth points out that the Legislature expressly rejected the bail reform bill originally introduced by the Governor. That bill, the Commonwealth asserts, followed the Federal Bail Reform Act of 1984, 18 U.S.C. §§ 3141 et seq. (1988), and provided for the preventive detention of individuals proven to be dangerous. Rather than enacting such a preventive detention bill, the Commonwealth argues, the Legislature merely chose to add another ground for refusal of release without surety--the arrestee's dangerousness--to the existing bail statute. The Commonwealth further asserts that the procedural protections already in place in the bail system provide sufficient safeguards against erroneous deprivations of liberty. 9 Properly understood, the Commonwealth concludes, the amendments pass constitutional muster under the due process clause of the Fourteenth Amendment.

The nature of the individual right affected by a challenged statute is of crucial importance to constitutional analysis under the due process clause. The Supreme Court of the United States has construed this clause to provide two basic forms of protection against improper governmental action. "So-called 'substantive due process' prevents the government from engaging in conduct that 'shocks the conscience,' Rochin v. California, 342 U.S. 165, 172 [72 S.Ct. 205, 209, 96 L.Ed. 183] (1952), or interferes with rights 'implicit in the concept of ordered liberty,' Palko v. Connecticut, 302 U.S. 319, 325-326 [58 S.Ct. 149, 152, 82 L.Ed. 288] (1937)." United States v. Salerno, 481 U.S. 739, 746, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987). In substantive due process analysis, the nature of the individual interest at stake determines the standard of review that courts apply when deciding whether a challenged statute meets the requirements of the due process clause. Where a right deemed to be "fundamental" is involved, courts "must examine carefully the importance of the governmental interests advanced and the extent to which they are served by the challenged regulation," Moore v. East Cleveland, 431 U.S. 494, 499, 97 S.Ct. 1932, 1936, 52 L.Ed.2d 531 (1977), and typically will uphold only those statutes that are narrowly tailored to further a legitimate and compelling governmental interest. See Salerno, supra 481 U.S. at 748-751, 107 S.Ct. at...

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