Bail is a very important matter for those facing criminal charges. At arraignment, the Commonwealth, though the Assistant District Attorney, will often request bail. The Defense Attorney will also make a bail request, and then the judge must decide how much bail, if any, to impose.
A recent decision by the Supreme Judicial Court (SJC) has outlined the factors to be considered in setting bail. The most important development from this new ruling, Brangan v. Commonwealth 477 Mass. 691 (2017), is that a Defendant’s dangerousness is NOT a factor to be considered in setting bail.
If the Commonwealth is moving to hold someone without bail, it must hold a dangerousness hearing, which is a separate event from the arraignment; at such a hearing, both parties may introduce evidence, including witness testimony, regarding the Defendant’s alleged dangerousness. The Commonwealth bears the burden of showing that no less restrictive conditions of release (such as GPS monitoring or stay away orders) would mitigate the Defendant’s dangerousness to either specific individuals or to the community at large. Such hearings are largely reserved for particularly heinous crimes.
If dangerousness is off limits at arraignment, then what elements CAN factor in to a bail determination? The most important is the Defendant’s record of defaults. A default occurs when an individual fails to show up for court without justification. If a Defendant has a history of defaults, judges will often impose some bail to assure his/her presence at future court dates. Other factors that judges may consider include: the nature and circumstances of the offense charged, the Defendant’s record of convictions, family ties, length of residence in the community, character, and financial resources.
The Brangan decision further outlines the manner in which a Defendant’s financial resources may be considered. At the broadest level, the court must give each Defendant an individualized bail determination that takes his/her financial resources into account. This is particularly important to poor and indigent Defendants. As the SJC explained:
“A bail that is set without any regard to whether a defendant is a pauper or a plutocrat runs the risk of being excessive and unfair. A $250 cash bail will have little impact on the well-to do, for whom it is less than the cost of a night’s stay in a downtown Boston hotel, but it will probably result in detention for a homeless person whose entire earthly belongings can be carried in a cart. What would be a reasonable bail in the case of one defendant may be excessive in the case of another.” Brangan at 700.
That said, the court is NOT under any obligation to set a bail that the Defendant can afford to post. The test instead is based on reasonableness; the amount of bail set must be no higher than that which would secure the Defendant’s appearance. Judges are required to detail in writing all factors they have considered in setting bail.
If the bail set by the court is not affordable, resulting in the Defendant being held in custody, he/she is entitled to a bail review hearing. For bails set in the District Courts, bail review hearings occur in the Superior Court; for bails set at the Superior Court, bail review occurs at the SJC in front of a single justice.
While Massachusetts maintains a presumption favoring release on personal recognizance, it is very important to have an attorney make a strong bail argument at arraignment.
