The Spotlight team at the Boston Globe recently investigated “show cause hearings” in Massachusetts that determine whether or not there is probable cause that the person of question committed a crime. These hearings have allowed clerks to absolve men and women from criminal prosecution, even when the evidence is undeniable.
The hearings, which are held before a District Court clerk magistrate and are also known as secret court sessions, form a system that is reminiscent of court diversion programs for minors, such as Teen Court in Kentucky.
Kentucky allows minors that have plead guilty to misdemeanor charges to voluntarily enter a diversion program, and their records only show a referral to peer court. Defendants engage in a court process run by their peers. These teenagers are trained to act as attorneys, jurors, bailiffs and clerks.
Sentences may consist of letters of apology, counseling sessions or community service. The programs are meant to encourage defendants to engage in personal reflection with the support of teenagers their age, some of whom have been in their shoes.
But these programs do not apply to minors who have committed felonies, and defendants are kept under close watch to ensure completion of their sentencing.
Many of the clerks in Massachusetts have forgiven criminals in these show cause hearings under similar conditions, namely doling out a punishment of writing letters of apology.
But the meetings are rarely made public record and agreements are often forgotten and never followed up on. Even more disturbing, the system allows the police to request show cause hearings for felonies.
Felonies accounted for more than 12 percent of these hearings, according to reporting from the Spotlight team. Past cases have included rape, kidnapping, armed robbery and attempted murder.
Rather than uphold the law in instances of probable cause, however, many clerks appear to have seen their power as an opportunity to mend criminals by assuming forgiveness leads to changed behavior.
Instead of using show cause hearings for their purpose — to determine the presence of probable cause — clerks in Massachusetts have taken it upon themselves to determine which of the guilty deserve to be prosecuted.
Under this system, offenders may repeat the same crime or others, but still have a clean record unless a prosecutor specifically reaches out to address the case themselves.
The investigation revealed that a defendant’s chances of receiving mercy can depend on the color of their skin or their connections, and especially on the bias of their designated clerk. Being born into the wrong race or family should never determine the outcome of these major charges — many of which potentially carry substantial jail time or fines.
Juries are used to give an unbiased assessment of a case by determining guilt through analyzing the facts of the crime that occurred, not the defendant’s potential to improve. But such impartially cannot exist when there are no juries.
Clerks of varying qualification and background — some do not have bachelor’s degrees let alone law degrees — are responsible for the fates of potentially dangerous criminals.
The Globe’s investigation revealed that secret courts are an overwhelmingly local phenomenon. In no other state are show cause hearings used with such leniency, and certainly not for offenses as serious as those in the secret courts of Massachusetts.
Diversion programs in other states are meant to be forgiving, allowing the defendants to own up to their actions and not become defined by misdemeanors they committed in their young adult life. The process is public and thorough and designed to embody actual court proceedings.
But show cause hearings in Massachusetts give second chances to adults who know they can escape prosecution and have little accountability for any future actions. Nothing is recorded, conditions are not always followed up on, and the system relies solely on the judgment of a biased individual.
If there are situations when it is best to forgive and forget, crime has never been one of them.
