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SJC-13476
MAKIS M., a juvenile vs. COMMONWEALTH.
Suffolk. January 8, 2024. - May 7, 2024.
Present: Budd, C.J., Gaziano, Kafker, Wendlandt, & Georges, JJ.
Delinquent Child. Youthful Offender Act. Due Process of Law, Juvenile delinquency proceeding, Competency to stand trial, Substantive rights. Juvenile Court, Delinquent child. Incompetent Person, Criminal charges. Practice, Criminal, Juvenile delinquency proceeding, Defendant's competency, Dismissal. Statute, Construction. Constitutional Law, Judiciary, Separation of powers.
Civil action commenced in the Supreme Judicial Court for the county of Suffolk on July 20, 2023.
The case was reported by Wendlandt, J.
Debbie F. Freitas (Cristina F. Freitas also present) for the juvenile. Kristen W. Jiang, Assistant District Attorney, for the Commonwealth. Sarah LoPresti, Committee for Public Counsel Services, for youth advocacy division of the Committee for Public Counsel Services, amicus curiae, submitted a brief.
GAZIANO, J. Shortly after midnight on April 13, 2021, a
juvenile was apprehended inside an apartment building with two 2
guns and ammunition. He was charged by delinquency complaint,
indicted, and prosecuted by the Commonwealth for various
offenses arising out of this incident. After arraignment as a
youthful offender, the juvenile was diagnosed with a language-
based learning disorder, among other information-processing
disorders, and two inquiries were made into his competency to
stand trial.1
In March 2022, at the conclusion of his first competency
proceeding, the juvenile was found not competent to stand trial
but capable of attaining competency in the foreseeable future.
The judge also considered whether the juvenile could attain
competency in the foreseeable future through remediation.
Remediation in this context refers to interventions designed to
help the juvenile attain competency, such as special education.
After being found incompetent, the juvenile twice filed motions
to dismiss under G. L. c. 123, § 16 (f), the statute governing
the dismissal of pending charges against incompetent persons.
Both motions were denied in the fall of 2022.
In June 2023, the juvenile was again found incompetent to
stand trial following a second competency proceeding. However,
1 The juvenile was also diagnosed with borderline intellectual impairment, executive dysfunction disorder, attention deficit hyperactivity disorder, oppositional defiant disorder, a language-based learning disability, posttraumatic stress disorder, and mood dysregulation. 3
when asked directly by the juvenile's counsel whether "the court
[was] finding [the juvenile] able to be remediated," i.e., able
to attain competency in the foreseeable future, the judge
declined to make a definite finding. Although the juvenile
could "answer some of the questions that are germane to
competency," the judge found that the competency hearing had not
"focused on his ability to learn." She further found that
"there is no program available in Massachusetts" that could be
"beneficial to [the juvenile] with regard[] to remediating any
issues of incompetency." If there were such a "remediation
program that was specific to individuals with intellectual
disabilities" available in the Commonwealth, the judge said, she
would order the juvenile to attend that program.
In the meantime, the juvenile remains subject to numerous
conditions of release and pending delinquency and youthful
offender charges. The cases against him cannot move forward
because he has been found incompetent to stand trial and, in the
absence of any remediation programming within the Commonwealth,
is not likely to attain competency in the foreseeable future.2
This case came before us on reservation and report of a
single justice to the full court and raises three main issues.
2 This is one of two opinions issued today that relate to the Commonwealth's current framework for remediating juvenile defendants found incompetent to stand trial. See Commonwealth v. Huacon, 494 Mass. (2024). 4
The first issue is whether the mental health code, G. L. c. 123,
provides for the remediation of incompetent juveniles,
particularly those incompetent but not mentally ill. The second
issue is whether, in the absence of remediation programming
under the mental health code, the ability to create and mandate
remediation programming is within the scope of the Juvenile
Court's inherent authority. Lastly, this court must decide
whether the pending charges against the juvenile can be
dismissed under G. L. c. 123, § 16 (f), "in the interest of
justice."
To the first issue, we agree with both parties that G. L.
c. 123, §§ 15 and 16, do not provide for the remediation of
juveniles found incompetent for reasons other than mental
illness. To the second issue, we reject the Commonwealth's
contention that the ability to create and mandate remediation
programming for incompetent juveniles falls within the purview
of the Juvenile Court's inherent authority. Rather, the
creation of remediation programming falls within the purview of
the Legislature. To the last issue, that of dismissal under
G. L. c. 123, § 16 (f), we remand this matter to the Juvenile
Court for further findings on whether the juvenile poses a
present danger to the community.3
3 We acknowledge the amicus brief submitted by the youth advocacy division of the Committee for Public Counsel Services. 5
1. Facts. Our discussion of the facts draws from the
parties' comprehensive statement of facts, prepared pursuant to
the reservation and report of the single justice on August 7,
2023, as well as the record.
In the early morning hours of April 13, 2021, police
investigated a breaking and entering at a residential apartment
building. At the scene, investigators apprehended the juvenile
and an adult, who were in possession of a large capacity
firearm, a loaded firearm with a defaced serial number, and a
significant amount of ammunition.
Later that day, the juvenile was charged by delinquency
complaint with seven offenses: breaking and entering a building
in the nighttime to commit a felony, G. L. c. 266, § 16;
carrying a loaded firearm without a license, G. L. c. 269,
§ 10 (n); two counts of possession of a large capacity firearm,
G. L. c. 269, § 10 (m); possession of ammunition without a
firearm identification card, G. L. c. 269, § 10 (h); defacing a
firearm serial number, G. L. c. 269, § 11C; and possession of
burglarious instruments, G. L. c. 266, § 49. The juvenile was
arraigned the same day and entered a plea of not delinquent. At
his arraignment, the Commonwealth moved for the pretrial
detention of the juvenile under G. L. c. 276, § 58A, on the
basis of dangerousness. Three days later, the judge allowed
this motion and detained the juvenile. 6
On July 1, 2021, an Essex County grand jury indicted the
juvenile as a youthful offender on two firearms charges, G. L.
c. 269, § 10 (a). He was arraigned on July 15, 2021, and
entered a plea of "not youthful offender." Again, the
Commonwealth moved for the pretrial detention of the juvenile
under § 58A on the basis of dangerousness and, again, the
juvenile was ordered detained.
After 140 days of detention, on August 31, 2021, the judge
released the juvenile under eight conditions, including "home
lockdown" and the use of global positioning system services to
track his location. Two more conditions were added to the
juvenile's release in October 2021. However, on November 23,
2021, a notice of a technical violation of probation was issued
for the juvenile. The next day, the juvenile was detained and
held for another 125 days.
After counsel for the juvenile raised concerns, two
inquiries were made into the juvenile's competency. The
juvenile was first found incompetent to stand trial on March 28,
2022, after a series of hearings beginning on February 15, 2022.
These hearings included the testimony of three expert witnesses,
two for the juvenile and one for the Commonwealth. In their
reports, the experts noted that the juvenile had previously been
diagnosed with attention deficit hyperactivity disorder,
oppositional defiant disorder, a language-based learning 7
disability, posttraumatic stress disorder, and mood
dysregulation. They also weighed the juvenile's
neuropsychological evaluation, which indicated that the juvenile
had been enrolled in an individualized education program at
school from a young age and "overall [was] functioning in the
borderline range cognitively and academically." Ultimately, the
judge found the juvenile incompetent, noting that the juvenile
did not understand the role of the jury.
In her written findings, the judge further found that it
was likely the juvenile would attain competency to stand trial
within a reasonable period of time. She based this conclusion
on the report of the Commonwealth's expert, as well as the
juvenile's neuropsychological evaluation. The juvenile was
released the next day with six further conditions added to his
existing conditions of release.
After this initial finding of incompetency, the juvenile
moved to dismiss his pending delinquency charges pursuant to
G. L. c. 123, § 16 (f), in September 2022. Given both the March
2022 finding of incompetency and the implications of his
impending eighteenth birthday (in late November 2022) on his
pending delinquency charges, the juvenile requested that his
next competency hearing be scheduled as soon as possible. The
juvenile filed a renewed motion to dismiss his pending 8
delinquency charges pursuant to G. L. c. 123, § 16 (f), in
November 2022, which was denied later that month.
The juvenile was found incompetent to stand trial for the
second time on June 6, 2023, by the same judge, following
extended competency proceedings that included the testimony of
the same three experts. One of the juvenile's experts diagnosed
him with borderline intellectual impairment and executive
dysfunction, along with his preexisting diagnoses. She
explained that, while the juvenile may be able to "remember
definitions" or "memorize some of the factual knowledge," it was
nevertheless "unlikely that his rational understanding and his
ability to help his attorney is going to change." In their
evaluations, the two experts for the juvenile opined that the
juvenile could not be remediated, and all three experts noted
deficits in his understanding. The judge also took judicial
notice of the fact that the juvenile had been found incompetent
to stand trial at two prior juvenile matters in May 2018 and
November 2018.
At the conclusion of this second proceeding, the judge
found the juvenile "not competent to stand trial" and focused
her findings on his ability to remediate. Although there was a
"difference of opinions" among the experts as to the juvenile's
ability to remediate, the judge found that the juvenile "does
seem to be able to answer some of the questions that are germane 9
to competency." In lieu of making any further findings about
the juvenile's ability to remediate at this juncture, the judge
found "that he [had not] been assigned the tools that might" aid
him in attaining competency to stand trial -- in other words,
"[n]obody is teaching him, for lack of a better way to say it."
The judge went on to find that there was no program available in
Massachusetts that may "remediat[e] any issues of competency."
The judge further stated, "If there was, in Massachusetts, a
remediation program that was specific to individuals with
intellectual disabilities, I would be assigning him to that
program to see if experts at that program found it to be
beneficial to establishing competency." Ultimately, the judge
declined to dismiss without "fully vett[ing] all of the
opportunities for [the juvenile] to be remediated," reasoning
that the charges "are of grave concern to public safety and the
community" and finding the juvenile "to be a danger."4
On July 20, 2023, the juvenile filed a petition with a
single justice of this court pursuant to G. L. c. 211, § 3. He
challenged the judge's finding of remediability, as well as her
decision not to dismiss the pending charges against him under
G. L. c. 123, § 16 (f), and he raised novel questions of law.
4 The same day, the Commonwealth moved to revoke the juvenile's release into the community because he had missed curfew by one hour. The Juvenile Court denied the motion but added an additional three conditions to the juvenile's release. 10
The single justice reserved and reported this matter to the full
court, pairing this case with Commonwealth v. Huacon, 494
Mass. (2024), for argument.
2. Discussion. First, we discuss the Commonwealth's
current statutory framework for assessing competency, G. L.
c. 123, §§ 15 and 16. We next determine whether this framework
empowers the Juvenile Court to create and mandate remediation
programming. In the alternative, we consider whether the
ability to create and mandate remediation programming falls
within the inherent authority of the Juvenile Court. Last, we
determine whether the pending case against this juvenile, who
has been found incompetent and who may be capable of
remediation, demands dismissal under G. L. c. 123, § 16 (f).
a. Framework for assessing competency. "It has long been
the law of this Commonwealth that the 'trial, conviction or
sentencing of a person charged with a criminal offence while he
is legally incompetent violates his constitutional rights of due
process,' . . . whether under the Fourteenth Amendment of the
Constitution of the United States or under art. 12 of the
Declaration of Rights of the Constitution of this Commonwealth."
Commonwealth v. Hill, 375 Mass. 50, 51-52 (1978), quoting
Commonwealth v. Vailes, 360 Mass. 522, 524 (1971).
"This prohibition helps to protect the accuracy and reliability of criminal and delinquency proceedings by ensuring that criminal defendants and juveniles have the 11
ability and opportunity to communicate information to others that may reveal their innocence or lessen their degree of guilt. It also safeguards other constitutional rights, 'including the right to effective assistance of counsel, the rights to summon, to confront, and to cross- examine witnesses, and the right to testify on one's own behalf or to remain silent without penalty for doing so.'" (Citations omitted.)
Matter of a Juvenile, 485 Mass. 831, 835 (2020). In order to be
found competent, a criminal defendant must have sufficient
ability "to consult with his lawyer with a reasonable degree of
rational understanding" and a "rational as well as factual
understanding of the proceedings against him." Commonwealth v.
Beatty, 492 Mass. 118, 125 (2023), quoting Commonwealth v.
Russin, 420 Mass. 309, 317 (1995). The Commonwealth bears the
burden of proving the defendant's competency by a preponderance
of the evidence. Commonwealth v. Robinson, 493 Mass. 718, 724
(2024).
Pretrial competency determinations in all "court[s] of
competent jurisdiction" in Massachusetts, including the Juvenile
Court, are governed by G. L. c. 123, §§ 15 and 16. See G. L.
c. 123, § 15 (f) (applying to "alleged delinquent"). Where
there is doubt that a defendant can stand trial due to "mental
illness or mental defect," a judge may order that the defendant
be examined by a qualified psychologist or physician. G. L.
c. 123, § 15 (a). Following this initial examination, the court
may then order the defendant to be hospitalized for no more than 12
forty days for "observation and further examination" to
determine "whether mental illness or mental defect have so
affected a person that he is not competent to stand trial."
G. L. c. 123, § 15 (b). At the end of this observation period,
the examining physician or psychologist then must provide the
court with a written report of findings. See G. L. c. 123,
§ 15 (c). If the defendant is deemed competent, the case
continues as usual. See G. L. c. 123, § 15 (d). If the
defendant is deemed incompetent, the "trial of the case shall be
stayed until such time as the defendant becomes competent to
stand trial, unless the case is dismissed." Id. See generally
Garcia v. Commonwealth, 487 Mass. 97, 106 n.15 (2021)
(describing initial competency determination process provided by
G. L. c. 123, § 15).
If the defendant is deemed incompetent by reason of mental
illness, specifically, see G. L. c. 123, § 8, the superintendent
of the examining hospital facility may then petition for the
incompetent defendant to be civilly committed, pretrial, for up
to six months. See G. L. c. 123, § 16 (b). From there, a
mentally ill defendant may be civilly committed, again pretrial,
for additional one-year periods if certain requirements under
G. L. c. 123, §§ 7 and 8, are met -- i.e., where "the failure to
hospitalize would create a likelihood of serious harm by reason
of mental illness." G. L. c. 123, § 7 (a). See, e.g., G. L. 13
c. 123, § 8 (commitment where person is "mentally ill," and
their discharge would "create a likelihood of serious harm").
See G. L. c. 123, § 16 (c). See generally Matter of E.C., 479
Mass. 113, 117 (2018) (describing process of civil commitment
under G. L. c. 123, § 8).
b. Authority of the Juvenile Court to order remediation.
Drawing from this statutory framework for assessing juvenile
competency, the juvenile argues that G. L. c. 123, §§ 15 and 16,
do not provide for remediation programming in any circumstance.
The Commonwealth agrees that the statutory framework does not
currently provide for remediation. The Commonwealth instead
advances that the power to create and mandate remediation
programing falls within the scope of the Juvenile Court's
inherent authority. We first address whether the statutory
framework allows for remediation programming. Next, we
determine whether the ability to create and mandate remediation
programming falls within the inherent authority of the Juvenile
Court. In both inquiries, we answer in the negative.
i. Statutory authority. "Our primary duty in interpreting
a statute is to effectuate the intent of the Legislature in
enacting it" (quotation and citation omitted). Sheehan v.
Weaver, 467 Mass. 734, 737 (2014). In determining the
Legislature's intent, we start with the statutory language and
read for internal consistency. See Matter of E.C., 479 Mass. at 14
118. See also Felix F. v. Commonwealth, 471 Mass. 513, 516
(2015). "Ordinarily, where the language of a statute is plain
and unambiguous, it is conclusive as to legislative intent."
Matter of E.C., supra, quoting Malloch v. Hanover, 472 Mass.
783, 788 (2015). In the absence of statutory definitions, we
read the words of a statute to have their "plain and ordinary
meaning." Matter of E.C., supra. Where the meaning of
statutory language is ambiguous, we turn to the legislative
history to determine the Legislature's intent. See id. If we
determine that statutory language is unknowably ambiguous or
"faulty or lacks precision, it is our duty to give the statute a
reasonable construction" (citation omitted). Commonwealth v.
Keefner, 461 Mass. 507, 511 (2012).
By its plain language, the function of G. L. c. 123, § 15,
is to provide procedures to determine a person's competency --
not to remediate incompetency. See Commonwealth v. Carson C.,
489 Mass. 54, 57-58 (2022) (competency of "adult or juvenile"
defendants evaluated under G. L. c. 123, § 15). See, e.g.,
G. L. c. 123, § 15 (a) (authorizing court to enlist "one or more
qualified physicians or . . . psychologists" to conduct
examination to "determin[e] mental competence to stand trial");
G. L. c. 123, § 15 (b) (male defendant requiring stricter
security can be hospitalized "if the court has reason to believe
that such observation and further examination are necessary in 15
order to determine whether mental illness or mental defect"
renders person incompetent [emphasis added]); G. L. c. 123,
§ 15 (d) (if necessary, court "shall hold a hearing on whether
the defendant is competent"). In the instant case, the juvenile
has already been found incompetent. Because G. L. c. 123, § 15,
does not provide for observation or examination beyond the point
of determining whether a defendant is competent, it does not
provide a vehicle for remediation programming.
The question then becomes whether G. L. c. 123, § 16 (b),
allows the Juvenile Court to order the juvenile to be civilly
committed for purposes of remediation. Importantly, G. L.
c. 123, § 16, by reference to G. L. c. 123, § 8, requires that a
juvenile be "mentally ill" to be civilly committed. See, e.g.,
Matter of Hernandez, 101 Mass. App. Ct. 856, 860, 869-870 (2022)
(defendant incompetent by reason of mental illness for purposes
of civil commitment due to, among other factors, psychosis and
schizophrenia); Matter of D.K., 95 Mass. App. Ct. 95, 96-97
(2019) (defendant incompetent by reason of mental illness for
purposes of civil commitment due to, among other factors,
schizophrenia, delusions, and perceptual disturbances). Here,
the juvenile has been diagnosed with a language-based learning
disability, among other information-processing disorders, which
both parties agree are distinct from mental illness as that term
is defined by regulation. See 104 Code Mass. Regs. § 27.05(1) 16
(2021) (defining mental illness for purposes of involuntary
commitment as "a substantial disorder of thought, mood,
perception, orientation, or memory which grossly impairs
judgment, behavior, capacity to recognize reality or ability to
meet the ordinary demands of life, but shall not include
intellectual or developmental disabilities, autism spectrum
disorder, traumatic brain injury or psychiatric or behavioral
disorders or symptoms due to another medical condition").5 The
juvenile is not incompetent by reason of mental illness but,
rather, by the effect of his numerous diagnoses on his ability
to understand the role of a jury and otherwise assist his
attorney, such that the discussion of civil commitment in § 16
is inapplicable to the issue of remediation here. Cf.
Commonwealth v. DelVerde, 401 Mass. 447, 449-450 (1988) (when
"depression, coupled with [intellectual impairment], severely
affect[s] . . . behavior and mood," mental condition can qualify
as mental illness for purposes of civil commitment [emphasis
added; footnote omitted]). See generally G. L. c. 123B, § 1
("no person with [either] a developmental disability [or an
intellectual disability] shall be considered to be mentally ill
5 The Department of Mental Health promulgated this definition pursuant to its authority under G. L. c. 123, § 2, to "define the categories of mental illness for the purpose of [c. 123]." See generally District Court Standards of Judicial Practice: Civil Commitment and Authorization of Medical Treatment for Mental Illness (rev. Apr. 2019). 17
solely by reason of the person's developmental [or intellectual]
disability").
Because G. L. c. 123, § 15, only allows for examination of
a juvenile defendant in order to determine competency, rather
than to remediate incompetency, and because civil commitment
under G. L. c. 123, § 16, requires that a juvenile be mentally
ill, not otherwise impaired, the mental health code provides
neither for the remediation of incompetent defendants nor for
the commitment of those incompetent due to reasons other than
mental illness.
ii. Inherent authority. In the absence of a statute
providing for remediation, the Commonwealth argues that the
Juvenile Court is empowered to create and mandate remediation
programming pursuant to its inherent authority. However, the
creation of remediation programming for incompetent
juveniles strays beyond the bounds of the Juvenile Court's
inherent authority and is best left to the Legislature. See
generally Spinelli v. Commonwealth, 393 Mass. 240, 243 (1984)
("The Legislature may, in some circumstances, provide a
legislative remedy where the courts have determined there is no
judicial remedy").
Inherent judicial powers flow from the "lofty principles"
secured by arts. 11 and 29 of the Massachusetts Declaration of
Rights, guaranteeing residents the impartial administration of 18
justice. First Justice of the Bristol Div. of the Juvenile
Court Dep't v. Clerk-magistrate of the Bristol Div. of the
Juvenile Court Dep't, 438 Mass. 387, 396-397 (2003). See Bower
v. Bournay-Bower, 469 Mass. 690, 698 (2014), quoting Sheriff of
Middlesex County v. Commissioner of Correction, 383 Mass. 631,
636 (1981) ("We have long recognized that courts in this
Commonwealth possess certain inherent powers whose exercise is
'essential to the function of the judicial department, to the
maintenance of its authority, or to its capacity to decide
cases'"). The judiciary's inherent authority is to be invoked
only when established methods fail, Brach v. Chief Justice of
the Dist. Court Dep't, 386 Mass. 528, 536 (1982), and its scope
is concurrent with its purpose: "to allow judges to perform
core functions necessary for the proper administration of
justice," Campatelli v. Chief Justice of the Trial Court, 468
Mass. 455, 476 (2014) (includes supervisory authority over
personnel within judicial system). See Commonwealth v.
Teixeira, 475 Mass. 482, 483 (2016) (includes authority to order
prehearing discovery); Gray v. Commissioner of Revenue, 422
Mass. 666, 672-673 (1996) (includes authority to grant change of
venue, to use contempt proceedings, to appoint guardian ad
litem, to impound files, and to revoke judgment obtained by
fraud); Chief Admin. Justice of the Trial Court v. Labor
Relations Comm'n, 404 Mass. 53, 57 (1989) (includes authority to 19
control court room proceedings); O'Coin's, Inc. v. Treasurer of
the County of Worcester, 362 Mass. 507, 510 (1972) (includes
rulemaking and administrative authority, as well as authority to
commit fiscal resources to operation of court system).
The establishment of pretrial remediation programming for
incompetent juveniles strays beyond the bounds of the "internal
functioning of the judiciary" and therefore beyond the scope of
the court's inherent authority. Commonwealth v. Dodge, 428
Mass. 860, 866 (1999) (ability to impose conditions on pretrial
release is not essential to judicial function and therefore is
beyond scope of inherent authority). A similar issue arose in
Department of Mental Retardation v. Kendrew, 418 Mass. 50, 54-55
(1994).6 There, a District Court judge was confronted with a
criminal defendant who was incompetent to stand trial by reason
of intellectual impairment. Id. While the District Court could
not commit the defendant under G. L. c. 123, § 16, as she was
not mentally ill, the trial judge instead used his authority to
place the defendant in a long-term residential treatment
program. See id. at 54. On review, we acknowledged that
although "courts of the Commonwealth have certain inherent and
implied powers," this "legislative 'gap' or 'crack' was not
6 The department has since been renamed the Department of Developmental Services. See Judge Rotenberg Educ. Ctr., Inc. v. Commissioner of the Dep't of Developmental Servs., 492 Mass. 772, 778 n.8 (2023). 20
within a court's [inherent] power to fill." Id. at 55. Because
the order was neither "authorized by a necessary and inevitable
implication of the court's power to decide criminal cases and
impose penalties" nor "an ancillary function in the nature of
rule-making or judicial administration," it strayed beyond the
bounds of the District Court's authority. Id. at 55-56.
Accordingly, we vacated the trial judge's order. See id. at 57.
Again here, crafting remediation programming for juveniles
goes beyond the court's inherent authority and requires a level
of policy-making typically reserved for the Legislature. See
Kendrew, 418 Mass. at 55-56. See also Hancock v. Commissioner
of Educ., 443 Mass. 428, 466-467 (2005) (Cowin, J., concurring)
(separation of powers demands "that the judiciary stay out of
the business of educational policy"). The existence of "gap[s]"
in G. L. c. 123, §§ 15 to 16, such that the statutes fail to
provide for the remediation of incompetent juveniles and provide
for the civil commitment only of the mentally ill, does not
empower Juvenile Court judges to take matters into their own
hands in the name of resolving criminal cases efficiently.
Kendrew, supra. See Matter of a Juvenile, 485 Mass. at 835
(prohibition on trying incompetent defendants central to
"accuracy and reliability of criminal and delinquency
proceedings"). 21
Indeed, as recently as 2023, the Legislature proposed a
bill specifically addressing the remediation of incompetent
juveniles. See House Bill No. 1554, § 4 (Jan. 20, 2023) (would
add new section, G. L. c. 123, § 15A, providing that if juvenile
is incompetent but capable of remediation, "the court shall stay
the proceedings and order the youth to receive services designed
to achieve competence"). See generally Commonwealth v. Clerk of
the Boston Div. of the Juvenile Court Dep't, 432 Mass. 693, 699
(2000), quoting School Comm. of Worcester v. Worcester Div. of
the Juvenile Court Dep't, 410 Mass. 831, 834 (1991) ("[j]uvenile
courts, like all the courts of the Commonwealth, except the
Supreme Judicial Court, are creatures of the Legislature and
derive their powers, other than those powers that are inherent
in all courts . . . from the Legislature"). The proposed bill
would, inter alia, repeal part of G. L. c. 123, § 15, and insert
a new section following it, in order to, among other goals,
provide additional guidance for initial competency
determinations, vest courts with the authority to order
remediation programming, and offer different routes to dismissal
for irremediable juveniles based upon their different predicate
offenses. See House Bill No. 1554, §§ 3, 4.7
7 We note that the bill would repeal a portion of G. L. c. 123, § 15, and add a new § 15A to "reform[] juvenile offender law." See House Bill No. 1554 (titled "An Act reforming juvenile offender law"). It is noteworthy that this proposed 22
Our Legislature would not be alone in acting on the issue
of juvenile incompetency and remediation -- rather, remediation
programs across the country have begun with State legislatures
and reflect the complex policy considerations involved. For
instance, States differ as to whether remediation programming is
crafted by the court on a defendant-by-defendant basis, see,
e.g., Cal. Welf. & Inst. Code § 709(g)(2) ("court may make any
orders necessary to assist with the delivery of remediation
services in an alternative setting to secure confinement"), or
simply ordered by the court and then provided by a predetermined
agency within the State, see, e.g., Me. Rev. Stat. tit. 15,
§ 3318-B (juvenile court shall "refer the juvenile to the
legislation from the 2023 session is not the first of its kind. See House Bill No. 1665 (Feb. 18, 2021).
Material here, if a juvenile is ultimately found not competent but capable of remediation, the court would be empowered under the proposed law to stay proceedings, order the juvenile to receive services, and review his or her progress every 180 days. See House Bill No. 1554, § 4 (proposed G. L. c. 123, § 15A [d]).
From there, the bill varies the procedure for dismissal by predicate offense. For instance, misdemeanor charges are to be dismissed if the juvenile has not remediated after 180 days, but felony charges would only be dismissed if the juvenile has not remediated within two years. See House Bill No. 1554, § 4 (proposed G. L. c. 123, § 15A [e]-[f]). In the case of a juvenile charged with murder, the court would retain jurisdiction for five years or until the juvenile reaches twenty-one years of age, and only then would the pending charges be subject to dismissal if the juvenile remains not competent. See House Bill No. 1554, § 4 (proposed G. L. c. 123, § 15A [g]). 23
Commissioner of Health and Human Services for evaluation and
treatment"); N.C. Gen. Stat. § 7B-2401.4(g) (effective Jan. 1,
2025) ("The Division [of Juvenile Justice and Delinquency
Prevention of the Department of Public Safety] shall be
responsible for the provision of psychoeducation remediation
programming . . ."); Utah Code Ann. § 80-6-403(1) (if juvenile
determined not competent, "the juvenile court shall notify the
[Department of Health and Human Services]" and "allow the
department [thirty] days to develop an attainment plan for the
minor"). Regardless of approach, State statutes on this topic
provide courts and agencies alike with the necessary authority
and guidance to proceed. See, e.g., Alaska Stat. § 12.47.110
(allowing court to commit incompetent defendants to State
agency, providing timelines for remediation, and discussing how
dismissal is affected by severity of predicate offense).
Altogether, the power to create and mandate remediation
programming for juveniles found incompetent to stand trial falls
beyond the scope of the Juvenile Court's inherent authority,
such that this responsibility is best left to the Legislature.
c. Application and appropriate remedy. Pending
delinquency charges are not currently subject to dismissal under
G. L. c. 123, § 16 (f). See Sharris v. Commonwealth, 480 Mass.
586, 594 (2018) ("G. L. c. 123, § 16 (f), implicitly excludes
dismissal of charges" that would "never be eligible for 24
parole"). See also Abbott A. v. Commonwealth, 458 Mass. 24, 39
n.16 (2010) (delinquency charges involve neither criminal
sentencing nor parole). The juvenile therefore argues that
fundamental fairness and due process require that G. L. c. 123,
§ 16 (f), allow for the dismissal of pending delinquency
charges. In opposition, the Commonwealth relies on the public
safety threat posed by the juvenile.
i. General Laws c. 123, § 16 (f).8 The mental health code
provides two avenues to dismissal under G. L. c. 123, § 16 (f),
"[i]f a person is found incompetent to stand trial," such as the
juvenile here. See Sharris, 480 Mass. at 593 ("General Laws
c. 123, § 16 (f), is intended to ensure that [persons] who are
incompetent to stand trial are not left facing the indefinite
pendency of criminal charges"). First, the case against an
8 General Laws c. 123, § 16 (f), provides:
"If a person is found incompetent to stand trial, the court shall send notice to the department of correction which shall compute the date of the expiration of the period of time equal to the time of imprisonment which the person would have had to serve prior to becoming eligible for parole if he had been convicted of the most serious crime with which he was charged in court and sentenced to the maximum sentence he could have received, if so convicted. For purposes of the computation of parole eligibility, the minimum sentence shall be regarded as one half of the maximum sentence . . . . On the final date of such period, the court shall dismiss the criminal charges against such person, or the court in the interest of justice may dismiss the criminal charges against such person prior to the expiration of such period." 25
incompetent person can be dismissed after the expiration of half
of the time it would have taken for the defendant to become
eligible for parole had they received the maximum possible
sentence. See G. L. c. 123, § 16 (f); Foss v. Commonwealth, 437
Mass. 584, 585 (2002). In the alternative, charges against a
person found incompetent to stand trial can be dismissed "in the
interest of justice." G. L. c. 123, § 16 (f). We have
discussed the "in the interest of justice" prong of G. L.
c. 123, § 16 (f), in two main cases: Commonwealth v. Calvaire,
476 Mass. 242, 247 (2017); and Sharris, 480 Mass. at 601-602.
In Calvaire, 476 Mass. at 243-246, we held that a pending
case against an incompetent person can be dismissed "in the
interest of justice" under the second prong of G. L. c. 123,
§ 16 (f), "even before the maximum parole eligibility date has
been reached" under the first prong of G. L. c. 123, § 16 (f).
We explained that the "interest of justice" language of § 16 (f)
provides a "safety valve" for dismissal where it is unlikely
that a defendant will regain competency for trial -- for
example, where "the defendant's chances of being restored to
competency are slim." Id. at 247. In this way, the provision
"safeguard[s]" the two compelling State interests served by the
statute: (1) protecting incompetent persons from indefinitely
pending criminal charges and (2) protecting the public from
potentially dangerous persons. Id. at 246. In deciding whether 26
to dismiss "in the interest of justice," we explained that
judges are empowered to consider factors outside of the
statutory framework of G. L. c. 123. Id. For instance, we
weighed in favor of dismissal the fact that the defendant was
"deemed incompetent for more than half of the time since the
charge was brought in [his] case." Id. at 247 n.13.
The following year, in Sharris, 480 Mass. at 593-595, this
court ordered the dismissal of pending charges "in the interest
of justice" even where the defendant was not eligible for parole
and therefore "implicitly exclude[d]" from dismissal under G. L.
c. 123, § 16 (f). Because "a defendant's liberty interests
during the pendency of a criminal trial are fundamental rights,"
we undertook a substantive due process analysis and applied
strict scrutiny. Id. at 597. When we analyzed the two
compelling State interests identified in Calvaire, 476 Mass. at
246, we looked to whether the defendant posed a present danger
to public safety, rather than considering his history of
violence. See Sharris, supra at 599. Ultimately, we held that
G. L. c. 123, § 16 (f), satisfies substantive due process "only
insofar as it is understood to allow the dismissal of charges,
in the interest of justice, in circumstances such as these,
where the defendant will never regain competency and does not
pose a risk to public safety." Id. at 602. In our analysis, we
emphasized that "allowing charges that can never be resolved at 27
a trial to remain pending indefinitely is inconsistent with [the
defendant's] right to substantive due process," particularly
when it was "undisputed that the defendant [would] never become
competent" to stand trial. Id. at 601-602.
As these cases demonstrate, to decide the issues before us
today we must first assess whether a juvenile offender is
eligible for parole. See Sharris, 480 Mass. at 593-595;
Calvaire, 476 Mass. at 243-246. The first prong of the statute
explicitly calculates a dismissal date using the defendant's
parole eligibility, and the second prong allows for dismissal
"in the interest of justice . . . prior to the expiration of
such period [calculated under the first prong]." G. L. c. 123,
§ 16 (f). Here, the juvenile faces both delinquency and
youthful offender charges. As noted supra, delinquency charges
are "implicitly exclude[d]" from dismissal under G. L. c. 123,
§ 16 (f), because they involve neither criminal sentencing nor
parole. See Sharris, supra at 594. See also Abbott A., 458
Mass. at 39 n.16. Youthful offender charges, on the other hand,
can be sentenced in one of three ways: the juvenile can be
sentenced as an adult, the juvenile can be committed to the
Department of Youth Services until the age of twenty-one, or the
juvenile can receive a "combination sentence" of commitment to
the Department of Youth Services followed by probation and an
adult sentence. G. L. c. 119, § 58 (a)-(c). See Commonwealth 28
v. Terrell, 486 Mass. 596, 599-600 (2021). There is no way to
know which avenue the judge would have taken in sentencing here
and, importantly for purposes of G. L. c. 123, § 16 (f), whether
the juvenile's sentence would have involved parole.
Therefore, because the juvenile is not eligible for
dismissal of his delinquency charges and may not be eligible for
dismissal of his youthful offender charges, depending on
sentencing, "[w]e analyze his claim on substantive due process
grounds." Sharris, 480 Mass. at 594. Where indefinitely
pending charges burden a fundamental liberty interest, we apply
strict scrutiny. See id. at 595-602 ("a defendant's liberty
interests during the pendency of a criminal trial are
fundamental rights," triggering strict scrutiny). See
Commonwealth v. Weston W., 455 Mass. 24, 35 (2009) (for statute
to satisfy strict scrutiny, it "must be narrowly tailored to
further a legitimate and compelling governmental interest and be
the least restrictive means available to vindicate that
interest").
ii. Substantive due process. A. Liberty interest.
Although the juvenile is in the community, he claims his liberty
is impaired by "his many conditions of release and the continued
pendency of the [youthful offender and delinquency] charges
against him." In both Calvaire, 476 Mass. at 243, and Sharris,
480 Mass. at 587, the defendant was subject to civil commitment. 29
However, physical detention is not necessary to show that a
juvenile's liberty interest has been burdened -- indeed, "the
United States Supreme Court has determined that a defendant's
liberty interest may be restricted simply by the pendency of
criminal changes, even where the defendant is not held in
custody." Sharris, supra at 597.
The fact that the juvenile is subject to indefinitely
pending charges further establishes the burden upon his liberty
and triggers a substantive due process analysis. See Jackson v.
Indiana, 406 U.S. 715, 740 (1972) ("denial of due process
inherent in holding pending criminal charges indefinitely over
the head of one who will never have a chance to prove his
innocence").9 Three main factors render the charges against the
juvenile indefinite. First, the juvenile is incompetent and,
because there is no remediation programming available in the
Commonwealth, cannot be expected to attain competency and stand
trial in the foreseeable future. See Kendrew, 418 Mass. at 55-
56. Second, because the Juvenile Court retains jurisdiction
over the juvenile "pending final adjudication," and because the
juvenile's case cannot be finally adjudicated while the juvenile
remains incompetent, the juvenile cannot age out of these
9Because the juvenile focuses on the pending delinquency charges and the second prong of G. L. c. 123, § 16 (f), we limit our analysis to these issues. 30
proceedings. G. L. c. 119, § 72 (a) ("The divisions of the
juvenile court department shall continue to have jurisdiction
over children who attain their eighteenth birthday pending final
adjudication of their cases . . ."). See generally Commonwealth
v. Cole C., 92 Mass. App. Ct. 653, 659 (2018) (G. L. c. 119,
§ 72, "recognized that the Juvenile Court retains jurisdiction
over cases that were pending when the juvenile turns eighteen").
Third, the pending delinquency charges against the juvenile
cannot be dismissed by reason of the juvenile's incompetency, as
they do not involve parole and are therefore "implicitly
exclude[d]" from dismissal under G. L. c. 123, § 16 (f).
Sharris, 480 Mass. at 594. See Abbott A., 458 Mass. at 39 n.16.
For all the foregoing reasons, although the juvenile is not
civilly committed and is currently living in the community, his
liberty is constrained by living under indefinitely pending
charges. See Jackson, supra; Sharris, supra at 597.
B. Two compelling State interests served by indefinitely
pending charges. I. Protecting incompetent persons from facing
indefinitely pending charges. Presently, charges have been
pending against the juvenile for over two years since he was
initially found incompetent in March 2022, more than half of the
time since charges were first brought against him. See
Calvaire, 476 Mass. at 247 n.13 (fact that defendant had "been
deemed incompetent for more than half of the time since the 31
charge was brought" favored dismissal). Because no remediation
programming exists within the Commonwealth, supra, we conclude
on this record that the juvenile is not likely to attain
competency to stand trial in the foreseeable future.
In light of this fact, we hold that maintaining indefinite
charges against the juvenile is not narrowly tailored to the
State's interest of protecting incompetent persons from facing
indefinitely pending charges. See Foss, 437 Mass. at 589
(mental health code was promulgated, in part, to "eliminat[e]
the indefinite pendency of criminal charges" against incompetent
defendants "awaiting their unlikely restoration to competency").
The rehabilitative goals of the juvenile justice system, which
include minimizing interactions between juveniles and the
justice system, support this conclusion. See G. L. c. 119, § 53
("as far as practicable, [delinquent children] shall be treated,
not as criminals, but as children in need of aid, encouragement
and guidance"). See also Carson C., 489 Mass. at 63 (juveniles
have "significant" interest in avoiding interaction with justice
system, even as early as arraignment, due to "the ramifications
of criminal and delinquency records"). Cf. Abbott A., 458 Mass.
at 40-41 (rule of reasonableness does not allow for incompetent
juvenile's pretrial detention where it "fails to result in
progress toward achieving competency or has become unreasonable
in duration"). 32
II. Protecting the public from potentially dangerous
persons. The other compelling State interest served by
maintaining pending charges against the juvenile is protecting
the public from potentially dangerous persons. See Calvaire,
476 Mass. at 246. In Sharris, 480 Mass. at 599-600, this court
analyzed the threat to public safety posed by a defendant
declared incompetent to stand trial for murder in the first
degree. Regardless of the "defendant's history of violence,"
both before the murder and during his subsequent civil
commitment, we focused our discussion on the threat posed by the
defendant in the "now." Id. at 599 (considering medical
condition and concluding that "the defendant is now too
physically weak to pose a danger to public safety").
Here, the judge did not make findings on the present threat
to public safety posed by the juvenile. In her analysis, she
found the juvenile to be a "danger" because "[t]he charges here
are of grave concern to public safety and the community."
However, the judge made her findings in June 2023, and the
charges arose from the April 2021 incident, marking a roughly
two-year gap. At the time of the June 2023 hearing, the
juvenile had been living in the community since March 2022 under
extensive conditions of release and had accrued no further
criminal charges in the interim. Neither of these factors was
included in the judge's findings as to the juvenile's present 33
dangerousness. Because the judge did not look to the present
danger posed by the juvenile and instead focused on the
underlying offense, see Sharris, 480 Mass. at 599, we remand for
further findings on the juvenile's present dangerousness.
3. Conclusion. The current statutory framework for
assessing competency, G. L. c. 123, §§ 15-16, does not provide
for the remediation of incompetent juveniles. The task of
establishing and mandating remediation programming falls outside
the scope of the Juvenile Court's inherent authority and is more
appropriately left to the Legislature. Finally, regarding
dismissal under G. L. c. 123, § 16 (f) ("in the interest of
justice"), we remand for further findings on whether the
juvenile poses a present danger to the public safety.
So ordered.