Whether an improper basis for imprisonment of a sex offender bars the Commonwealth from petitioning for commitment of the offender as a sexually dangerous person.

Repeat sexual offenders are subject to a mandatory sentence of community parole supervision for life (“CPSL”), a lifetime status equivalent to parole.  G.L. c. 265, § 45.  The petitioner pled guilty to one count of indecent assault and battery in 2002, and received a sentence including CPSL.  Thereafter, the petitioner violated his CPSL and was incarcerated.

In 2005, the Court ruled that a defendant must be specifically indicted as a repeat offender before he or she can be sentenced to mandatory CPSL.  Commonwealth v. Pagan, 445 Mass. 161 (2005).  The petitioner therefore moved to vacate his sentence for violation of CPSL, and the Commonwealth apparently assented.  However, the Commonwealth then moved to commit the petitioner as a sexually dangerous person (“SDP”), pursuant to G.L. c. 123A — one requirement of which is that the offender currently be incarcerated.  

In July, 2007, the petitioner moved to dismiss the commitment petition on the ground that he was not properly a prisoner when it was filed; his motion was denied.  He did not appeal that ruling.  In July, 2009, the petitioner requested extraordinary relief from the single justice pursuant to G.L. c. 211, § 3, and Justice Cordy reserved and reported the question to the full bench.

1. Availability of extraordinary relief.  The SJC may grant extraordinary relief from any decision of any lower court pursuant to G.L. c. 211, § 3, if “no other remedy is expressly provided.” Failure by a defendant to take an available appeal does not establish lack of remedy.  The Commonwealth therefore argues that the petitioner could have either appealed the denial of his motion in 2007, or waited and appealed a subsequent finding of sexual dangerousness, and that extraordinary relief is therefore inappropriate.
2. SDP Commitment.  The SDP statute is designed to prevent prisoners from being released while still likely to commit sexual offenses.  It therefore provides that “When the district attorney … determines that the prisoner … is likely to be a sexually dangerous person … the district attorney … may file a petition” for commitment (emphasis added).  G.L. c. 123A, § 12(b).  The petitioner argues that, because he was not properly a prisoner when the Commonwealth filed its petition, he was not subject to the statute.

It is difficult to evaluate the Commonwealth’s procedural argument on the available record.  If the Court chooses to reach the substantive question, and if the defendant is right that his prior incarceration was undisputedly unlawful, it is hard to see how he could be committed under a statute that requires him to be a prisoner.  If the imprisonment itself is unlawful, how can the Commonwealth lawfully impose the incidents of imprisonment?

On a broader level, this case demonstrates the difficulty faced by both prosecutors and offenders as the Court attempts to bring the SDP program within the bounds of the constitution. The legislature faced no easy task in drafting a statute calling for indefinite detention of prisoners without criminal process. If drug cases and contract disputes are the bread and butter of the trial court, SDP cases are the bread and butter of the Supreme Judicial Court.  Chapter 123A has a mere ten sections, but those ten sections draw the Court’s attention every year.

This case also demonstrates the slow process common in SDP commitment proceedings; the petitioner has apparently been temporarily committed for nearly three years on a showing of probable cause.  While such delays are often attributable to the offender himself, it is not clear that they should be tolerated on any grounds; they delay necessary treatment, if the offender is ultimately committed, and do grave harm to his civil rights if he is not.