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Massachusetts Supreme Court Revisits Lougee and Announces Framework for Determining When Pretrial Detention Prolonged Due to COVID Violates Due Process

by Doug Ankney

The Supreme Judicial Court of Massachusetts (“SJC”) announced the framework for deciding whether a defendant’s due process rights were violated where the defendant’s pretrial detention has been prolonged due to the COVID-19 pandemic, revisiting Commonwealth v. Lougee, 147 N.E.3d 464 (Mass. 2020) (as of June 2020, length of pretrial detentions caused by delay of jury trials because of the pandemic had not yet reached the point of triggering a due process analysis).

In October 2019, Hakeem Mushwaalakbar was arrested and jailed on charges related to domestic violence. The Chelsea District Court conducted a dangerousness hearing. The judge found that no conditions or combination of conditions of release could suffice to protect the alleged victim or the public. In December 2019, the Suffolk County Superior Court vacated the dangerousness order, concluding Mushwaalakbar could be released on conditions that included GPS monitoring, an order to stay away from the victim, and $10,000 cash bail. Unable to post the $10,000 bail, Mushwaalakbar remained in jail as his trial was postponed indefinitely due to the COVID-19 pandemic.

Throughout the following year, Mushwaalakbar filed numerous petitions seeking release. His last petition was denied, and the Appeals Court affirmed the denial in March 2021. The SJC allowed him direct appellate review.

The Court observed “[p]retrial detention based on dangerousness is constitutional precisely because it is ‘temporary and provisional’ and ‘the trial itself provides an inevitable end point to the State’s preventive authority.’” Mendoza v. Commonwealth, 673 N.E.2d 22 (Mass. 1996).

While Lougee held delays due to the COVID-19 pandemic constituted excludable delay under G.L.C. 276, § 58A, the prolonged length of the delay may, in some cases, upset the careful balancing prescribed by the Legislature in § 58A. See Mendoza. Upsetting that careful balance implicates constitutional concerns. Due process imposes limits on pretrial detention. United States v. Salerno, 481 U.S. 739 (1987).

“Substantive due process prohibits government conduct that shocks the conscience, or interferes with rights implicit in the concept of ordered liberty.” Commonwealth v. G.F., 93 N.E.3d 816 (Mass. 2018). “Where the government seeks to infringe on a fundamental right, in order to comply with the requirements of substantive due process, its action must be narrowly tailored to further a compelling and legitimate government interest.” Id. “Pretrial detention schemes necessarily balance the liberty interest of individuals presumed innocent against public safety concerns posed by high-risk defendants.” Matter of the Request to Release Certain Pretrial Detainees, 245 N.J. 218 (2021) (“Matter of Detainees”). “The process is constitutional so long as it serves regulatory rather than punitive purposes.” Id.

But at some point, pretrial detention under a valid regulatory scheme may “become excessively prolonged, and therefore punitive,” resulting in a due process violation. Salerno. The SJC stressed that there is no bright-line limit to the permissible length of pretrial detention; judges must assess the permissible length on a case-by-case basis via a motion for reconsideration under § 58A(4). See Abbott A. v. Commonwealth, 933 N.E.2d 936 (Mass. 2010). Thus, the SJC held “that certain defendants are entitled to hearings on motions for reconsideration of § 58A orders to determine whether the length of detention violates due process.”

The SJC then provided guidance for trial courts when considering whether a defendant’s pretrial detention violates due process by setting forth a procedural framework. The SJC instructed that defendants are entitled to a hearing on motions for reconsideration if they have been in custody longer than the presumptive time periods in § 58A minus any “periods of excludable delay other than delay due to the” pandemic, and “they make a preliminary showing on one or more of the following due process factors.” Judges are to weigh: “(1) the length of detention and projected length of ongoing detention, (2) the existence and nature of a plea offer, (3) evidence supporting detention under § 58A, (4) specific unfair prejudice to the defendant, and (5) the Commonwealth’s responsibility for the delay.”

When deciding the motion, the SJC cautioned, it is imperative that the judge does not consider whether the initial detention was correct but whether circumstances at the later hearing warrant continued detention. Matter of Detainees.

With respect to factor (5), in the instant case, a trial readiness conference was scheduled for May 18, 2021. But the Commonwealth answered it was not ready for trial because it had not filed a motion seeking the victim’s medical records. However, there wasn’t anything in the record to explain why it took the Commonwealth 17 months to file a motion that should have been filed at the outset of the prosecution. As such, if the Commonwealth is responsible for a delay in setting a trial date, that is a factor favorable to the defendant.

Accordingly, the SJC remanded to the Appeals Court for entry of an order vacating the denial of Mushwaalakbar’s motion and remanding to the district court for an immediate hearing, and the SJC advised that Mushwaalakbar is free to supplement his motion with further argument consistent with the its opinion. See: Mushwaalakbar v. Commonwealth, 169 N.E.3d 184 (Mass. 2021). 

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Related legal cases

Mushwaalakbar v. Commonwealth

Abbott A. v. Commonwealth

Mendoza v. Commonwealth



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