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SJC-11831
COMMONWEALTH vs. BRIAN LIBBY.
Suffolk. May 7, 2015. - July 1, 2015.
Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk,
& Hines, JJ.
Sex Offender. Due Process of Law, Sex offender, Pretrial
detainees. Statute, Construction. Words, "Prisoner."
Civil action commenced in the Supreme Judicial Court for
the county of Suffolk on November 6, 2014.
The case was reported by Duffly, J.
Eric Tennen (Michael F. Farrington with him) for the
defendant.
Canan Yesilcimen, Assistant District Attorney, for the
Commonwealth.
GANTS, C.J. The issue on appeal is whether the
Commonwealth may file a petition pursuant to G. L. c. 123A,
§ 12, to civilly commit someone as a sexually dangerous person
(SDP) who previously was convicted of a "sexual offense," as
defined under G. L. c. 123A, § 1, but is currently in custody
2
only because he was unable to post bail in a pending criminal
case. We conclude that the Commonwealth may file an SDP
petition under § 12 against a person who has been convicted of a
sexual offense only where the person is in custody because of a
criminal conviction, an adjudication as a delinquent juvenile or
youthful offender, or a judicial finding that the person is
incompetent to stand trial. The Commonwealth may not file such
a petition where, as here, the defendant is in custody only
because he is awaiting trial, unless a judge has found the
defendant incompetent to stand trial.
Background. The defendant, Brian Libby, was convicted in
2002 of indecent assault and battery on a child under the age of
fourteen, which qualifies as a "sexual offense" under G. L.
c. 123A, § 1, and was sentenced to two and one-half years in a
house of correction. He was subsequently convicted of other
offenses, but was not serving a sentence on any of these
convictions when he was indicted on October 11, 2013, for
failure to register as a sex offender, subsequent offense. At
his arraignment in the Superior Court, a judge set bail in the
amount of $5,000. The defendant has been unable to post bail on
this pending indictment, and has remained in custody for that
reason alone awaiting trial.
On May 12, 2014, the Commonwealth filed an SDP petition for
civil commitment pursuant to G. L. c. 123A, § 12. The defendant
3
moved to dismiss the petition for "failure of jurisdiction,"
claiming that the district attorney is not authorized to file a
petition against the defendant when he is in custody only
because he is "a homeless person charged with a crime and unable
to afford . . . bail." The judge denied the motion. Citing
Commonwealth v. Gillis, 448 Mass. 354, 358-359 (2007), and
Commonwealth v. Allen, 73 Mass. App. Ct. 862, 864 (2009), the
judge concluded that § 12 "contemplates" the SDP commitment of
persons previously convicted of a sexual offense "who are
currently serving a criminal sentence or who face pending
charges and are awaiting trial." The defendant sought
interlocutory review of the denial of the motion to dismiss,
pursuant to G. L. c. 211, § 3. The single justice reserved and
reported the case without decision for determination by the full
court.
Discussion. We briefly summarize the relevant provisions
of G. L. c. 123A regarding the civil commitment of a person
found to be a "sexually dangerous person," as defined in § 1.1
1
A "sexually dangerous person" (SDP) is defined as
"any person who has been (i) convicted of or adjudicated as
a delinquent juvenile or youthful offender by reason of a
sexual offense and who suffers from a mental abnormality or
personality disorder which makes the person likely to
engage in sexual offenses if not confined to a secure
facility; (ii) charged with a sexual offense and was
determined to be incompetent to stand trial and who suffers
from a mental abnormality or personality disorder which
4
The procedure for filing an SDP petition is set forth in § 12.
Under § 12 (a), an "agency with jurisdiction"2 must notify in
writing the relevant district attorney3 and the Attorney General
six months prior to the release of three categories of persons.4
makes such person likely to engage in sexual offenses if
not confined to a secure facility; or (iii) previously
adjudicated as such by a court of the commonwealth and
whose misconduct in sexual matters indicates a general lack
of power to control his sexual impulses, as evidenced by
repetitive or compulsive sexual misconduct by either
violence against any victim, or aggression against any
victim under the age of [sixteen] years, and who, as a
result, is likely to attack or otherwise inflict injury on
such victims because of his uncontrolled or uncontrollable
desires."
G. L. c. 123A, § 1.
2
An "agency with jurisdiction" is defined as
"the agency with the authority to direct the release of a
person presently incarcerated, confined or committed to the
department of youth services, regardless of the reason for
such incarceration, confinement or commitment, including,
but not limited to a sheriff, keeper, master or
superintendent of a jail, house of correction or prison,
the director of a custodial facility in the department of
youth services, the parole board and, where a person has
been found incompetent to stand trial, a district
attorney."
G. L. c. 123A, § 1.
3
The relevant district attorney is the "district attorney
of the county where the offense occurred." G. L. c. 123A,
§ 12 (a).
4
Where a person "is returned to prison for no more than six
months as a result of a revocation of parole or . . . is
committed for no more than six months, such notice shall be
given as soon as practicable following such person's admission
to prison." G. L. c. 123A, § 12 (a).
5
The three categories are (1) "a person who has ever been
convicted of or adjudicated as a delinquent juvenile or a
youthful offender by reason of a sexual offense as defined in
[§] 1, regardless of the reason for the current incarceration,
confinement or commitment"; (2) a person charged with such a
sexual offense who "has been found incompetent to stand trial;"
and (3) a person charged with "any offense," who "is currently
incompetent to stand trial," and who "has previously been
convicted of or adjudicated as a delinquent juvenile or a
youthful offender by reason of a sexual offense." G. L.
c. 123A, § 12 (a). If the district attorney or the Attorney
General determines that the "prisoner or youth in the custody of
the department of youth services is likely to be a sexually
dangerous person as defined in [§] 1," the district attorney or
the Attorney General at the request of the district attorney may
file an SDP petition "in the superior court where the prisoner
or youth is committed or in the superior court of the county
where the sexual offense occurred." G. L. c. 123A, § 12 (b).
It is plain from the statute that the relevant district
attorney or the Attorney General may file an SDP petition only
against a person who is included within the three categories of
persons for whom notice must be given of their impending
release. See Gillis, 448 Mass. at 357 ("In general, the
triggering event for SDP commitment is the impending release,
6
usually from prison, of a sex offender"); Commonwealth v.
Nieves, 446 Mass. 583, 586 (2006) (SDP commitment process
"begins" with agency with jurisdiction giving notice six months
prior to release of person previously convicted of sexual
offense); Commonwealth v. McLeod, 437 Mass. 286, 290-291 (2002).
Where the defendant here has not been found incompetent to stand
trial, the Commonwealth contends that the defendant falls within
the first category. The Commonwealth's argument essentially
rests on two grounds.
First, the Commonwealth notes that the first category
includes any person convicted or adjudicated of a sexual offense
who is currently incarcerated, confined, or committed,
"regardless of the reason for the current incarceration,
confinement or commitment." Because the defendant previously
was convicted of a sexual offense and is in confinement awaiting
trial due to his failure to post bail, the Commonwealth
maintains that he meets these criteria.
Second, the Commonwealth notes that § 12 (b) permits a
district attorney to file an SDP petition against a "prisoner,"
and that we have said that "[t]he word 'prisoner,' in its
'common and approved usage,' refers to an individual who is
either serving a criminal sentence or awaiting trial." Gillis,
448 Mass. at 358-359, citing 12 Oxford English Dictionary 513
(2d ed. 1989) ("one who is kept in custody . . . as the result
7
of a legal process, either as having been condemned to
imprisonment as a punishment, or as awaiting trial for some
offence"), Webster's Third New International Dictionary 1804
(1993) ("a person held under arrest or in prison"), and Black's
Law Dictionary 1213 (7th ed. 1999) ("A person who is serving
time in prison"; "[a] person who has been apprehended by a law-
enforcement officer and is in custody, regardless of whether the
person has yet been put in prison").
In determining whether § 12 permits an SDP petition to be
filed against a person previously convicted of a sexual offense,
who is competent to stand trial, and is in custody awaiting
trial, we apply familiar principles of statutory interpretation,
"informed by the rule that '[l]aws in derogation of the liberty
or general rights, of the citizen . . . are to be strictly
construed.'" Gillis, supra at 357, quoting Commonwealth v.
Beck, 187 Mass. 15, 17 (1904). "Narrowly construing the SDP
statute, as with other statutes in derogation of liberty, not
only helps avoid possible constitutional due process problems,
. . . but also helps ensure that individuals are not deprived of
liberty without a clear statement of legislative intent to do
so" (citation omitted). Gillis, supra. Applying the required
strict construction of § 12, we conclude that it does not permit
an SDP petition to be filed against a person previously
convicted of a sexual offense who is in custody awaiting trial,
8
where there has been no finding that the person is incompetent
to stand trial.
As to the Commonwealth's first argument, we note that the
phrase, "regardless of the reason for the current incarceration,
confinement or commitment," was added to § 12 (a) through an
amendment in 2004. See St. 2004, c. 66, § 8. Before that
language was added, we had declared in McLeod, 437 Mass. at 286,
that § 12 (a) did not apply to "persons convicted of sexual
offenses who have completed and been released from those
sentences but who are later serving sentences for crimes that
are not statutorily enumerated 'sexual offenses.'" In that
case, the defendant had been convicted of aggravated rape and
kidnapping, but had completed the sentences for those crimes,
and was in a house of correction serving time for convictions
that were not sexual offenses when the SDP petition was filed.
Id. at 287. We determined that "[t]he thrust of the statutory
scheme [was] that commitment petitions should be brought against
persons currently incarcerated for sexual offenses who are about
to be released into the community but who, because they are
sexually dangerous, are likely to commit another sexual offense,
and, therefore, should not be released." Id. at 291. We noted
that "[w]ere we to conclude otherwise, any defendant serving a
sentence for any crime who had ever in the past committed an
enumerated sexual offense, no matter how temporally distant,
9
would be eligible for civil commitment, contingent on that
defendant's current mental condition." Id. at 292.
The 2004 amendment revised § 12 (a) to do precisely that.
The legislative history suggests that the Legislature did not
intend by this amendment to do more than allow an SDP petition
to be filed against a person convicted of a sexual offense who
was serving a sentence for a nonsexual offense, or who was found
incompetent to stand trial on a nonsexual offense.5 See
Memorandum from William J. Meade, Deputy Chief Counsel, and
5
We note that, in 2002, Alexandra Zapp was brutally
murdered at a rest stop on a Massachusetts highway by a person
previously convicted of a sexual offense who had recently been
released from incarceration following a conviction of a
nonsexual offense. See Lambiaso, "Ally Zapp" Law, Signed by
Romney, Grants New Powers Over Offenders, State House News
Service, Apr. 7, 2004. Press reports after her murder noted
that the law did not allow the district attorney to file an SDP
petition before the person's release, because he was serving a
sentence on a nonsexual offense. See Confining the Dangerous,
Boston Globe, July 20, 2002, at A.12 (prosecutors' attempt to
civilly commit Zapp murder suspect failed because SDP law was
interpreted to deny SDP petition "if the most recent offense for
which [a person previously convicted of a sexual offense] is
held is not a sex crime"); Lambiaso, supra ("Romney and
lawmakers say the law is needed to close a loophole in the 1999
civil commitment statute that prevents judges from keeping
criminals in jail if they previously committed a sex crime but
were serving a sentence for something non-sexual"). See also
Testimony of Lieutenant Governor Kerry Healey before the Joint
Committee on the Judiciary (testifying in favor of 2004
amendment to SDP law and stating, "It is an honor to sit beside
Ms. Andrea Casanova, Alexandra Zapp's mother. Her involvement
in this issue will help to keep her daughter's memory alive and
protect innocent people from sexually dangerous individuals");
State House News Service, (Senate Sess.), Oct. 7, 2003
(Statement of Sen. Brian A. Joyce that proposed amendment to SDP
law "relates to the Zapp murder" and that "[t]he murderer could
have been civilly committed under [the proposed] bill").
10
Daniel B. Winslow, Chief Legal Counsel, to Senior Staff of the
Executive Department (Apr. 7, 2004) (McLeod opinion highlighted
limitations of pre-2004 SDP law by holding that person
previously convicted of sexual offense was ineligible for civil
commitment "because the offense for which the [person] was
serving a sentence at the time the commitment petition was filed
was not a statutorily-enumerated 'sexual offense'" [emphasis
added]); Testimony of Lieutenant Governor Kerry Healey before
the Joint Committee on the Judiciary (2004 amendment to SDP law
"allows district attorneys to file petitions to civilly commit
incarcerated persons as sexually dangerous persons, regardless
of the purpose of their current incarceration. For example, an
individual serving time for assault and battery could be civilly
committed based on prior sex offenses"). Although the language
added was broader than "incarceration," and included
"confinement or commitment," we need not interpret that language
to include all those confined awaiting trial to avoid rendering
the words superfluous. Confinement "may refer to persons in
custody who are incompetent to stand trial for an offense."
Gillis, 448 Mass. at 361. Commitment may refer to a commitment
to the department of youth services following a juvenile
adjudication. See id. at 361, 363-364 (SDP petition may not be
filed against individual who had completed his criminal sentence
and was civilly committed due to mental illness); G. L. c. 123A,
11
§ 1 ("agency with jurisdiction" defined as "agency with the
authority to direct the release of a person presently
incarcerated, confined or committed to the department of youth
services").
The 2004 amendment also added a third category of persons
who may be subject to an SDP petition: a person charged with
"any offense," who "is currently incompetent to stand trial,"
and who "has previously been convicted of or adjudicated as a
delinquent juvenile or a youthful offender by reason of a sexual
offense." St. 2004, c. 66, § 9. If the first category included
all persons convicted of sexual offenses who were in custody
awaiting trial, there would be no reason for the Legislature to
add this third category, which includes only the narrow subset
of those awaiting trial on any offense who were found to be
incompetent.
Moreover, if the Legislature intended the addition of the
phrase, "regardless of the reason for the current incarceration,
confinement or commitment," to permit an SDP petition to be
filed against a person previously convicted of a sexual offense,
who is confined awaiting trial without being found incompetent,
the Legislature would have amended the requirement that an
"agency with jurisdiction" give written notice six months prior
to such person's release. Such a notice requirement reasonably
could not be applied to a person who is in custody only because
12
of an inability to post bail, who could obtain immediate release
upon posting bail. The Legislature in § 12 (a) recognized that
six months' prior notice may not be practicable in certain
circumstances, but it limited those circumstances to two: "the
case of a person who is returned to prison for no more than six
months as a result of a revocation of parole or who is committed
for no more than six months." If the Legislature had
contemplated that an SDP petition could be filed after a
person's arrest while that person was in custody awaiting a bail
determination or seeking the funds to post bail, it would have
recognized this possibility in its notice provision.
As to the Commonwealth's second argument, we acknowledge
the dictum in Gillis, 448 Mass. at 358-359, that included those
"awaiting trial" in the dictionary definition of the word
"prisoner." We also recognize that "prisoner" is a word that is
not defined in G. L. c. 123A, § 1, but is used in § 12 (b),
which provides that "the district attorney . . . may file a
petition alleging that the prisoner or youth is a sexually
dangerous person." But we are not persuaded that this means
that the Legislature intended to permit the filing of an SDP
petition against someone who is in custody awaiting trial and
who has not been found incompetent.
The issue in Gillis was whether an SDP petition may be
filed against a person previously convicted of a sexual offense
13
who was no longer serving a sentence but was civilly committed
for mental illness. 448 Mass. at 355-356. The adoption of the
dictionary definition of "prisoner" supported our conclusion
that a person who was civilly committed was not a "prisoner" as
that word is used in § 12 (b); we did not need to decide whether
a person held in custody awaiting trial was a "prisoner." Id.
at 359. Moreover, it would be unreasonable to strip the words
"prisoner or youth" from their context in § 12 (b), apply their
dictionary definitions, and conclude that the Legislature
intended that a district attorney may file an SDP petition
against any prisoner or youth, as those words are commonly used.
Those words are plainly a shorthand reference to the three
categories of persons identified in § 12 (a) who are subject to
the filing of an SDP petition, and are limited in scope to those
three categories of persons.
For all these reasons, we conclude that interpreting the
first category of persons subject to the filing of an SDP
petition to include all persons previously convicted of a sexual
offense who are in custody awaiting trial would be inconsistent
with other provisions in § 12 and unsupported by the legislative
history. It also would raise serious practical problems that
would complicate the already complex SDP petition procedure.
Under the Commonwealth's interpretation, an SDP petition could
be filed against a person previously convicted of a sexual
14
offense who is in custody awaiting trial, regardless of how
minor the charge, even if the person has yet to appear at
arraignment or is awaiting the arrival of family members to post
bail. This could invite an unseemly race to file the SDP
petition before the defendant posted bail, and might provide the
Commonwealth with an incentive to delay the arraignment or
hinder the posting of bail to allow it the time needed to file
the petition. Moreover, the Commonwealth's interpretation would
mean that an SDP proceeding would likely occur at the same time
as a criminal proceeding, and that an acquittal in the criminal
case would not end the SDP proceeding. It would also mean that
a defendant who was unable to afford bail would be more
vulnerable to the filing of an SDP petition than a comparable
defendant with the means to post bail.
Because G. L. c. 123A, § 12, must be strictly construed, a
clear statement of legislative intent is needed to permit an SDP
petition to be filed against those in custody awaiting trial who
were not found incompetent. See Gillis, 448 Mass. at 357. We
conclude that there is nothing close to a clear statement of
legislative intent to do so. As a result, the SDP petition
against the defendant must be dismissed.6
6
If the defendant were to be convicted of the pending
charge and sentenced to a period of incarceration, the
Commonwealth, pursuant to G. L. c. 123A, § 12, would not be
15
Conclusion. For the reasons given, we remand the case to
the county court for entry of a judgment allowing the
defendant's petition pursuant to G. L. c. 211, § 3, and
directing the entry of a judgment in the Superior Court
dismissing the Commonwealth's petition for commitment pursuant
to G. L. c. 123A, § 12.
So ordered.
barred from filing a new SDP petition against him prior to his
release from incarceration.