New Bedford, Guns & Dangerousness

We learn from this morning's Boston Globe that there's some concern about the Bristol County district attorney's practice of putting people who illegally carry weapons in jail pending trial. And when the concern emanates from Chief Justice Margaret Marshall, the issue deserves some consideration.

The details from the Globe story are sketchy. The statute in question is G.L. c. 276 s. 58A, but the Globe doesn't tell us that. Section 58A allows prosecutors to ask district court judges to detain defendants before trial if the person is accused of:

a felony offense that has as an element of the offense the use, attempted use, or threatened use of physical force against the person of another, or any other felony that by its nature involves a substantial risk that physical force against the person of another may result, including the crime of burglary and arson whether or not a person has been placed at risk thereof . . . .

The article states as a factual proposition that "[t]he state law that established dangerousness hearings was enacted in 1994 to combat domestic violence after several defendants free on bail killed their wives or girlfriends."

Is that true, though?

If it is true, then defendants who are simply caught with illegal guns have a compelling argument to make. If, however, the statute was enacted to protect the general public from violent crime (including, of course, domestic violence) perpetrated by defendants out on bail, generally, the defendants here have a less strong argument.

The defendants want the core question to be whether a person carrying an unlicensed gun is dangerous per se. Because the answer to this is probably not.* If Bristol County and C. Samuel Sutter are smart, they'll make the core question whether dangerous people carrying unlicensed guns can be detained pending trial. The answer to this has to be yes. This is example number ten zillion showing that it's important to be the one framing the issues in a case, whether you're in a small claims session or the United States Supreme Court.

Remember too that prosecutors must prove that the defendants in question (197 alone in Bristol County in the last two years, of which 141 were detained) are dangerous. They don't do so in a vacuum. There are hearings. Defendants are represented by their own lawyers.

The article doesn't provide the slightest indication as to whether this policy is working from an objective standpoint, whether gun-related crime is down in New Bedford and Fall River over the last two years. This apparently was not an important enough detail for John R. Ellement or Jonathan Saltzman to tell us about it. Or maybe it was in a draft and it was a casualty of the shrinking news hole. A quick scan of the Google indicates that crime in New Bedford is down from two years ago, but up over last year. So a mixed bag.

Overarching point: there's some question as to whether current laws regulating gun possession are even constitutional anymore.** But until that gets resolved, or the Heller case is overturned, expect to see a lot of hand-wringing about issues like this.

UPDATE: A helpful commenter points us to this article, which indicates that the policy is working.

*But only probably.

**Before you say "Oh no there isn't", ask yourself whether the Supreme Court has explicitly ruled on this issue. Not posited certain reasonable restrictions where those restrictions weren't actually under consideration. No. Actually ruled on the issue. So, yeah, there's some question as to whether laws regulating gun possession are constitutional.