This case comes to us on two reported questions and calls upon us to construe for the first time the so-called VALOR Act, St. 2012, c. 108, entitled "An Act relative to veterans' access, livelihood, opportunity and resources." The VALOR Act was enacted in 2012 in the aftermath of protracted American military engagements in Afghanistan and Iraq. In recognition of the toll thereby taken on many who served in the military, the VALOR Act, among other things, amended the statute providing young adults with pretrial diversion, G. L. c. 276A (pretrial diversion statute), to include qualifying veterans and active duty members of our armed forces facing criminal charges in the District and Boston Municipal Courts.
We address first whether, under the pretrial diversion statute, as amended by the VALOR Act, a judge is authorized to dismiss or to continue such charges without a finding upon a defendant's successful completion of an approved pretrial diversion program. We conclude that the judge is so authorized, rejecting the Commonwealth's view that the VALOR Act amendments permit only a continuance of court proceedings, on the flawed view that, while military defendants could seek treatment through court-approved programs, they would face resumed prosecution of the charged offenses even after the successful completion of such a program.
We go on to address the reported questions and consider whether the pretrial diversion statute, as amended by the VALOR Act, permits a judge to continue without a finding (CWOF) or to dismiss a charge of operating a motor vehicle while under the influence of alcohol or drugs (OUI), second or subsequent offense, notwithstanding the provisions of G. L. c. 90, § 24, which generally proscribe such dispositions. Our analysis of this question ultimately turns on the legislative intent of the VALOR Act and its multifaceted approach to assisting members of the military in their often-difficult return to civilian life, during which many succumb to substance abuse. We conclude that, notwithstanding otherwise applicable constraints on alternative dispositions that the preexisting OUI statute imposes, the pretrial diversion statute, as amended in 2012 by the VALOR Act, vests judges with discretion to order either of the two alternative dispositions at issue in appropriate cases that involve charges of OUI, second or subsequent offense. We accordingly answer both reported questions
We set forth the relevant facts, which are largely undisputed.
Immediately upon returning from Afghanistan, Morgan sought mental health treatment through the United States Department of Veterans Affairs (VA), but the VA was unable to schedule an intake appointment for four months. While awaiting evaluation and treatment, Morgan began to self-medicate by abusing alcohol and opioids. In January, 2012, he was evaluated and was diagnosed with PTSD. In the fall of 2012, the VA also determined that Morgan was one hundred per cent disabled. On Veteran's Day, in November, 2012, Morgan's identical twin brother, himself a veteran of the wars in Iraq and Afghanistan, who suffered from PTSD and a traumatic brain injury, committed suicide. The impact of his twin's suicide on Morgan's efforts to return to ordinary civilian life was considerable.
In April, 2013, Morgan entered a short-term detoxification program at a VA hospital in Bedford. Immediately after release from that program, he entered an intensive outpatient program, but completed only one month. In July, 2013, Morgan visited his mother, who had moved to California, and he successfully completed a two-month residential treatment program there. He thereafter relapsed.
On September 29, 2014, Morgan was driving erratically on Interstate 495 in Tewksbury when his vehicle swerved into another lane and hit the side of a tow truck. Morgan did not stop to exchange insurance information at the scene. The tow truck driver telephoned police and reported the incident; he also said that he had observed a Toyota (later identified as Morgan's) driving very erratically for ten miles before the accident. Morgan continued driving until he was stopped by a State police trooper in Boxborough, who had been alerted by the truck driver's report, and who observed Morgan still driving erratically.
When stopped, Morgan appeared to be under an intoxicating influence; he was disheveled and sweating, with glassy eyes and slurred speech. Dried blood and needle marks were visible on his left arm. The trooper who conducted the stop called for backup, and ultimately was joined by four other troopers. Morgan informed one of the troopers that he had heroin and a hypodermic needle in his possession, and those items were taken into police custody. Morgan was arrested and driven to the State police barracks for booking. He waived his Miranda rights and agreed to be evaluated by a drug recognition specialist, who concluded that Morgan was exhibiting signs of opioid use. Police found drug paraphernalia in the vehicle near the driver's seat, including plastic bags, a bottle cap, and two hypodermic needles.
The following week, Morgan was arraigned in the District Court on charges of OUI, second offense; possession of heroin; negligent operation of a motor vehicle; and leaving the scene of property damage. When his attorney later learned that Morgan was a veteran, she sought pretrial diversion under the VALOR Act. He was evaluated by the VA, which determined that he would benefit from such a program.
At different VA medical centers, Morgan underwent detoxification, received specialized PTSD counselling for the first time, and also began supportive counselling for substance abuse, in conjunction with monthly Naltrexone
Three months after arraignment, in January, 2015, Morgan filed a motion, pursuant to the pretrial diversion statute, seeking dismissal of all charges should the pretrial diversion program prove successful. In the alternative, he sought to admit to sufficient facts and have the case continued without a finding. The prosecutor opposed both dispositions, contending that, given the terms of the OUI statute, G. L. c. 90, §§ 24 and 24D, the judge could not continue a second offense
Acknowledging that the case presented an unsettled question of law, the judge reported the following two questions to the Appeals Court, pursuant to Mass. R. Crim. P. 34, as amended, 442 Mass. 1501 (2004):
We allowed Morgan's application for direct appellate review.
Two statutes are relevant to our consideration of the reported questions. We set forth each in pertinent detail.
Pretrial diversion statute, G. L. c. 276A.
In 1974, the Legislature inserted c. 276A into the General Laws by enacting St. 1974, c. 781, "An Act establishing a district court procedure to divert selected offenders from the district courts to programs of community supervision and service." As initially enacted, the statute provided for pretrial diversion to a program, followed by dismissal or a continuance without a finding, for young adults who were at least eighteen, but not yet twenty-two years old.
G. L. c. 276A, § 2.
In 2012, the pretrial diversion statute, among others, was amended by the VALOR Act, St. 2012, c. 108, to assist veterans and active duty service members of the United States armed forces in numerous ways as they resumed their civilian lives.
Section 10 defines eligible military defendants in language that almost precisely mirrors that used in G. L. c. 276A, § 2, to define young adults eligible for the protections of G. L. c. 276A, except that it applies to veterans:
G. L. c. 276A, § 10.
The pretrial diversion statute, as originally enacted in 1974, explicitly excludes otherwise eligible defendants charged with certain offenses from pretrial diversion, G. L. c. 276A, § 4, and sets forth a detailed process to be followed in screening eligible defendants for admission to a program, G. L. c. 276A, § 3. It allows a judge to "afford a fourteen-day continuance for assessment by the personnel of a program to determine if [the defendant] would benefit from such program." Id. In 2012, the VALOR Act added G. L. c. 276A, § 11, creating a similar procedure for qualifying veterans: a judge may "afford a [fourteen]-day continuance . . . to seek an assessment by the United States Department of Veterans Affairs, the [D]epartment of [V]eterans' [S]ervices or another [S]tate or [F]ederal agency with suitable knowledge and experience of veterans affairs to provide the court with treatment options . . . including diversion programs."
If, after receiving the requisite information in the assessment, and any response by the Commonwealth, the judge determines that the defendant should enter the program, and the defendant "agrees to abide by the terms and conditions in the plan of services," "[t]he criminal proceedings of [a] defendant who qualifies for diversions under [G. L. c. 276A, § 2,] . . . shall be stayed for a period of ninety days, unless the judge in his [or her] discretion considers that the interest of justice would be served by a hearing of the facts, after which the case may be continued without a finding for ninety days." G. L. c. 276A, § 5.
At the end of the ninety-day stay or the continuance without a finding, the judge may dismiss the underlying charge "[i]f the report indicates the successful completion of the program by a defendant." G. L. c. 276A, § 7. If, at the end of that time, the defendant has not completed the program successfully, or if the program recommends that the stay be extended, the judge may, in his or her discretion, extend the stay, dismiss the charges, return the case to the trial list, or "take such action as he [or she] deems appropriate."
OUI statute, G. L. c. 90, §§ 24, 24D.
Against the backdrop of otherwise available alternative dispositions,
Statutory authority under G. L. c. 276A.
Until the VALOR Act amended the statute in 2012, the special protections of the pretrial diversion statute that authorized judges to enter continuances without a finding or to dismiss charges against defendants who successfully completed a treatment program had been limited to young adults who were too old to fall under the jurisdiction of the Juvenile Court, but had not yet reached their twenty-second birthdays.
The initial question we confront is whether G. L. c. 276A, as amended by the VALOR Act, permits a judge to dismiss or to continue without a finding criminal charges brought against a qualifying military defendant upon his or her successful completion of an approved pretrial diversion program. The Commonwealth is of the view that §§ 10 and 11 on their face in essence permit no more than a continuance of court proceedings to enable military defendants to seek treatment through approved programs; they do not themselves authorize alternative dispositions even upon the successful completion of such programs. On this view, the successfully treated military defendant would then face resumed prosecution of the charged offenses. We do not share this view. In concluding that the statute confers upon judges the authority to order alternative dispositions and thereby divert successfully treated military defendants from further criminal prosecution, we reject the Commonwealth's contention that §§ 10 and 11, added by the VALOR Act, are to be read in isolation from the remainder of the pretrial diversion statute. This conclusion follows from the application of our usual rules of statutory construction and the plain language of the statute itself, and is confirmed by our review of the history and purpose of the VALOR Act.
In construing a statute, we strive to discern and effectuate the intent of the Legislature. The plain language of the statute, read as a whole, provides the primary insight into that intent. See
We begin with the language of G. L. c. 276A, §§ 10 and 11, viewing it in the context of the pretrial diversion statute as a whole. Doing so leaves no doubt that the Legislature intended to give veterans and active duty members of the military the same benefits of pretrial diversion programs and the alternative dispositions already afforded under the statute to young adults. "When the Legislature uses the same term in . . . different statutory sections, the term should be given a consistent meaning throughout."
The Commonwealth nevertheless argues that the provisions of G. L. c. 276A, §§ 5 and 7 (allowing pretrial diversion programs and alternative dispositions), do not apply to veterans and active duty members of the military who have been deemed eligible for diversion under G. L. c. 276A, § 10. The Commonwealth relies in this regard on the absence of language in §§ 5 and 7 (generally addressing continuances of cases for qualifying young defendants as defined in G. L. c. 276A, § 2), that cross-references §§ 10 and 11 concerning military defendants. At the same time, it ignores the fact that G. L. c. 276A, § 7 (permitting a judge, "[u]pon the expiration of the initial ninety-day stay of proceedings or . . . continuance without a finding" to dismiss the charges, extend the stay for further treatment, continue the case without a finding, or resume criminal proceedings), itself references no other section of the statute. Such parsing of the statute is, in any event, unavailing. The proffered construction is inconsistent with the fundamental canons of statutory interpretation, requiring that we read statutes concerning the same subject matter as a harmonious whole wherever possible, see
To read the statute in the fragmented fashion that the Commonwealth suggests would mean that the VALOR Act amendments do nothing more than allow military defendants some time away from court proceedings for treatment, after which they would face resumed prosecution. We note that, prior to enactment of the VALOR Act, a District Court judge already had authority to continue a case for a period of time in order to permit a mental health evaluation of a defendant, and to consider that evaluation in imposing a sentence. Had the VALOR Act amendment simply allowed for a brief continuance for assessment, while the case remained on the trial track, it would have done little to change existing practice.
Providing pretrial diversion for veterans and active duty members of the military, on the same terms as young adults, is consistent with the Legislature's purpose both in enacting the pretrial diversion statute in 1974 and in amending it through the VALOR Act in 2012. The pretrial diversion statute originally was intended to provide rehabilitation to those whose criminal habits had not become "fixed." See Rosenbloom, Bill Backs `Diversion' for Youths in Trouble, Boston Globe, Feb. 12, 1973, quoting bill supporter. See also Zablotsky, An Analysis of State Pretrial Diversion Statutes, 15 Colum. J.L. & Soc. Probs. 1, 8 (1979). Its supporters observed that a criminal record, coupled with a short period of incarceration, could lead to a "cycle of crime and prison . . ., ever more vicious." Help Needed Now for Youthful Offenders, Boston Globe, July 23, 1974, at 22. Avoiding this cycle would benefit both these young adults and society as whole.
In 2012, the Legislature added veterans and active duty members of the military to the pretrial diversion statute in service of the same goal: addressing the special needs of a group of offenders for whom the Legislature believed conviction and punishment were not necessarily appropriate. As with young adults, the Legislature recognized that, for veterans and active duty members of the military, the conventional path, leading to a permanent criminal record, fails to "address [their] needs" or to provide "the appropriate resolution," and that, if enabled to address the unique challenges they face, veterans could be strong candidates for rehabilitation. House Floor Hearing at 26:55, May 16, 2012, available at http://www.statehousenews.com/content/gallery/audio/2012/House/05-16audio-hou.mp3 (Statement of Rep. James E. Vallee). Cf.
The special consideration afforded to veterans in the District Courts was part of the VALOR Act's comprehensive effort to "[e]nsur[e] access to health care, education, employment and financial security" for veterans, particularly the 37,000 Massachusetts veterans who served in Iraq and Afghanistan. See Press Release, Governor Patrick Signs VALOR Act to Increase Opportunities for Veterans (May 31, 2012). Imposing an alternative disposition to avoid a criminal conviction furthers these goals. See
A decision whether to prosecute a criminal case rests exclusively with the executive branch. In the absence of a legal basis to do so, it is well established that a judge may not dismiss a valid complaint over the Commonwealth's objection. See
Having concluded that a judge has authority under the pretrial diversion statute to enter a dismissal or a continuance without a finding as to qualifying defendants in appropriate circumstances, we turn to the reported questions.
The provisions of the pretrial diversion statute that authorize judges to allow the alternative dispositions discussed appear to conflict with the OUI statute, insofar as the latter prohibits a charge of OUI, second or subsequent offense, from being "placed on file or continued without a finding." G. L. c. 90, § 24. The Commonwealth urges that we resolve this apparent conflict by applying the maxim that a more specific statute controls over one that is more general. See
Neither statute, however, fairly may be said to be more specific than the other, because each covers ground that the other does not. See
Similarly, another statutory maxim, to the effect that the later statute controls over the earlier, see
These tools being of limited utility at best, we look beyond them in an effort to harmonize the two statutes by discerning the underlying policies each serves. See
We note that, in amending c. 276A in 2012, the Legislature expressed special concern for veterans and active military service members struggling with substance abuse. Specifically, in the words of then Secretary of Veterans' Services Coleman Nee, legislators recognized that trauma as a result of combat service, "may lead to . . . substance abuse," see Tuoti, Court for Vets Opens in Boston, Enterprise, Mar. 7, 2014, and that, for service members thus ensnared, "incarceration without medical or clinical support results in a higher rate of recidivism." Bolton, Court Throws Veterans a Lifeline, Boston Globe, Apr. 11, 2013.
As one of the sponsors of the VALOR Act, Representative Jason Lewis, explained, the Legislature adopted the pretrial diversion provisions of the VALOR Act as part of a broader effort to provide an alternative to the traditional path of conviction and incarceration, particularly for those "veterans who face mental health and substance abuse issues." The Need to Support, Thank Our Veterans, Beverly Citizen, Dec. 13, 2012.
This conclusion does not diminish recognition of the serious hazard to public safety presented by those who drive while impaired by drugs or alcohol, especially by those who do so repeatedly, nor does it question the importance of deterring this menacing conduct by all prescribed means. The Legislature appears to have struck a delicate balance by permitting a discretionary rehabilitative alternative to criminal penalties in certain limited circumstances, for two discrete groups, that is also consonant with deterrence in service of public safety.
It is also well to note that by vesting District Court judges with discretion to order pretrial diversion to certain military defendants, the statute does not in any way offer assurance of an alternative disposition.
Finally, while we conclude that the construction we provide of the pretrial diversion statute, as amended by the VALOR Act, satisfactorily reconciles it with the OUI statute and best effectuates the Legislature's intent when enacting the VALOR Act in 2012, we recognize that the matter is not free from doubt. If the result here does not comport with what was intended, the Legislature may, of course, remedy this by enacting clarifying legislation. See
We answer both reported questions, "Yes," and remand the case to the District Court for further proceedings consistent with this opinion.
Soon thereafter, the Legislature eliminated this categorical rule, but, in language still in effect today, provided that a defendant charged with any OUI offense could not receive an alternative disposition "unless the interests of justice require." St. 1936, c. 434, § 1. In 1982, the Legislature limited the availability of continuances without a finding on a charge of OUI, even where required by the interests of justice, to the detailed and specific requirements set forth in G. L. c. 90, § 24D. See St. 1982 c. 373, § 2. In 1994, and again in 2002, the Legislature again limited those defendants eligible for pretrial diversion under G. L. c. 90, § 24D. See St. 1994, c. 25; St. 2002, c. 302.
Throughout a defendant's participation in a pretrial diversion program, the program must submit periodic reports to the judge. See G. L. c. 276A, § 6. At any point during that period, should the program report that the defendant has failed to comply with program requirements, or if the defendant commits a new offense, the judge may order the stay terminated and the case returned to the trial list. See