Mass. high court considers whether "least culpable" armed robbery meets pretrial "use of force" test

The Supreme Judicial Court heard argument on whether Massachusetts' pretrial-detention statute, G. L. c. 276, 58A, treats armed robbery as a categorical predicate when the least culpable forms of armed robbery may not involve "violent or substantial" force. Haley Jacobson, counsel for Domingo Agostini, argued that the "least culpable" armed robbery could be a person "who takes the hat off of someone's head and runs away while carrying a knife in their pocket," and that such conduct does not satisfy the statute's force requirement.

Jacobson told the court that although the legislature in 1994 included a "use, attempted use or threatened use of physical force" predicate in 58A, the residual clause that once supported treating armed robbery as a predicate was held void in 2019 and the legislature has not amended the statute since. "I think there can be little doubt that when the legislature first enacted [the statute] they intended for armed robbery to be a predicate offense for pretrial detention without bail," Jacobson said, but she argued that the court must consider the least culpable conduct that could be charged when…