Amicus Brief Argues Against Indefinite Pretrial Detention for Gun Possession Offenses

This week we filed an amicus curiae brief in a case set to be argued at the Massachusetts Supreme Judicial Court in February about how pretrial detention for possessing a gun without a license violates the guarantees of substantive due process. Over the last few years, the Houston Institute has worked in partnership with local community-based organizations to promote public health solutions to avert the serious harms of gun violence in poor communities of color. The alarming statistics on gun fatalities—including that young Black men and teens are killed by guns at a rate 20 times their white counterparts, and that Black women and girls are four times more likely to be killed than white women and girls—illuminate the need for an approach to violence prevention and intervention directed at root causes. Instead of a carceral approach that has entrenched cycles of trauma, violence, unemployment, and housing instability in poor communities of color, the Houston Institute advances empirically-backed public health solutions to gun violence.

Pretrial detention without the possibility of release for months at a time is only constitutionally sound if limited to the most serious offenses—those which threaten the “menace of dangerousness.” Mendonza v. Commonwealth, 423 Mass. 771, 787 (1996). The question before the Court is whether being accused of merely possessing a gun without a license rises to that level. Our brief will assist the Court to balance the speculative, abstract risk of potential harm that might flow from a “passive and victimless” possessory offense, Commonwealth v. Young, 453 Mass. 707, 714 (2009), against the concrete, documented, and pronounced harm that ineluctably flows from pretrial incarceration. Pretrial detention is legally considered an administrative hold for a regulatory purpose, defined as “not punishment.” But the conditions of confinement where people are incarcerated pretrial are punishing. The Legislature justifies the immense harms and deprivations of pretrial detention by an asserted public safety purpose. However, there is little evidence that incarceration produces safety. Discounting the harms of incarceration in favor of preventing the abstract risk of future harm from an offense that offers little reliable predictive power offends substantive due process.

Further, one danger of inherently fallible predictive judgments is that assumptions tinged by bias naturally creep in. Newly available data from the Massachusetts Trial Court show that defendants of color are disproportionately charged with unlicensed firearm possession; that prosecutors seek dangerousness hearings in a greater proportion of lead weapons offense cases than cases with a lead offense against the person; and that Black and Hispanic people are disproportionately subjected to dangerousness hearings. These data may illustrate how implicit bias and systemic racism overlap to label people of color dangerous, people of color in the presence of guns in particular—consistent with a long history of gun regulation targeting communities of color. While the Legislature may make policy judgments in the interest of public safety, in this instance the asserted public safety link is so loosely defined, speculative, and broadly rooted in fear instead of evidence that it invites precisely the implicit biases the Supreme Judicial Court has cautioned us all to root out.

Read our brief: