440 Mass. 568 (December 15, 2003)

This case finally settles the principle that pre-trial probation as a disposition, over the Commonwealth's objection, is unconstitutional and cannot be done in any court!

The defendant was indicted for rape of a child. Prior to trial, his attorney filed a motion requesting pre-trial probation pursuant to G.L. c. 276, §87. A Superior Court judge allowed the motion over the Commonwealth's objection and, after the expiration of the six-month pre-trial probationary period, held a Brandano hearing and dismissed the case in the "interests of public justice." The Commonwealth appealed the order of dismissal.

The SJC recently examined the legality of pre-trial probation as a disposition in the case of Commonwealth v. Tim. T., 437 Mass. 592 (2002). In that case the Court held that, standing alone, G.L. c. 276, § 87 does not provide a method for disposing of a case but can only be used as a disposition in conjunction with c. 278, § 18 (which provides for a continuance without a finding upon an admission to sufficient facts in District Court, Juvenile Court or the BMC).

In Tim T., the juvenile's case was in the Juvenile Court. In this case, defendant was indicted in the Superior Court where G.L. c. 278, § 18 does not apply. This fact prompted the SJC, for the first time, to look to the constitutionality of pre-trial probation as a disposition. The Court found that a judge dismissing an otherwise legally valid indictment violates the separation of powers doctrine. "To conclude otherwise would be to permit judges to substitute their judgment as to whom and what crimes to prosecute, for the judgment of those who are constitutionally charged with that duty, and who are accountable to the people for doing so responsibly. The line that the principle of separation of powers requires us to draw between the exercise of judicial and executive powers could not be more clear."