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Massachusetts Supreme Court Holds Seven-Year Delay and Inability to Receive Sex Offender Treatment While Awaiting SDP Trial Violates Due Process

by Dale Chappell

“While substantive due process permits limited confinement after a probable cause determination, it does not permit the Commonwealth to hold an individual indefinitely while repeatedly seeking a finding of sexual dangerousness,” the Supreme Judicial Court of Massachusetts said in holding that a seven-year delay in finding a person was sexually dangerous, coupled with lack of sex offender treatment, violated the person’s due process rights under the U.S. Constitution, requiring the Commonwealth to provide for supervised release while awaiting another sexually dangerous person (“SDP”) trial.

After the Commonwealth failed to convince three separate juries that “G.F.” was an SDP, necessitating civil commitment under G.L.c. 123A, over the course of seven years while he sat in a civil commitment center, he turned to the courts for relief. Across almost 17 pages of its opinion, the Massachusetts Supreme Court dissected the lengthy procedural history of G.F.’s civil commitment proceedings. Having been convicted at age 24 of molesting a friend’s teen daughters, G.F. was later convicted of three more sexual offenses in a similar fashion over the next decade. The fourth and final offense was when he bound and gagged his girlfriend’s daughter and raped her. G.F. was sentenced to 15 to 20 years in prison for that crime.

At the end of that sentence in 2011, the Commonwealth filed a petition to civilly commit G.F., then age 53, as an SDP, after an expert concluded that it was “highly likely” he would reoffend. The court, finding probable cause, ordered G.F. committed to the Massachusetts Treatment Center for a 60-day evaluation. The Commonwealth then filed for trial in March 2011 for a jury to determine whether G.F. was an SDP. The first trial, however, took place more than two years after he was placed in temporary custody at the treatment center and ended in a mistrial when the jury could not make the necessary finding of SDP. The second, in March 2014, ended the same way. The third trial, in January 2016, also ended when the jury could not make the SDP finding. Meanwhile, experts for the Commonwealth persisted in characterizing G.F. as an SDP, largely because he had not participated in sex offender treatment. This ignored the inconvenient fact that those awaiting an SDP trial are not even eligible for such treatment.

Nevertheless, the Commonwealth pushed for yet another trial. This time, the superior court ordered the Commonwealth to grant G.F. access to treatment or to show why he should not be released or given some other alternative to detention. Just days before the fourth trial, a single judge on the appeals court stayed the trial, after a lower court judge found that continued confinement would violate G.F.’s substantive due process rights and ordered G.F. released. The case was brought before the appeals court, but the Massachusetts Supreme Court transferred the case to it on its own motion.

The SDP statute requires that a person subject to an SDP petition filed by the Commonwealth be confined until resolution of the SDP trial and that the trial must begin within 60 days of the filing of the petition. The Massachusetts Supreme Court has held that confinement pending an SDP trial is constitutional, but only because that commitment is temporary and because the SDP statute requires an expedited timeline for trial. Commonwealth v. Pariseau, 2 N.E.3d 859 (Mass. 2014). The Court has also held that temporary civil commitment pending an SDP trial implicates due process protections.

The first question the Court had to decide was whether G.F. could be tried for the fourth time. “Unlike lawmakers in other states, the [Massachusetts] Legislature did not limit the number of time the Commonwealth could seek an SDP finding,” the Court noted, holding that a fourth trial would not “shock the conscience” of society enough to violate due process, the Court said.

However, the SDP statute prohibits delay, “even for good cause,” if the person will be prejudiced. G.F.’s inability to receive sex offender treatment pending trial “clearly constituted prejudice,” the Court said. Coupled with the seven-year delay, the Court said G.F’s right to due process was violated. While it did not require dismissal of the Commonwealth’s petition, “due process demands the petitioner be afforded certain relief at this point.”

The SDP statute “does not envision commitment for almost seven years,” the Court explained. In criminal cases, the accused is afforded a form of “supervised release,” if the judge concludes certain conditions would provide public safety measures, such as electronic monitoring. Giving G.F. the ability to be released under supervision with conditions could cure the due process violation while he waits for his fourth trial, the Court held.

Accordingly, the Massachusetts Supreme Court ordered that G.F. be given an opportunity to be released with conditions pending the outcome of the fourth SDP trial. See: Commonwealth v. G.F., 93 N.E.3d 816 (Mass. 2018). 

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Related legal case

Commonwealth v. G.F.



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