Even a few days behind bars can do a lot of harm to a person with a job or child care responsibilities. It has long been a goal of reformers to prevent excessive bail that results in the unnecessary detention of people of limited means. The bail reform component of our criminal justice reform package has gotten better and better through the Senate Ways and Means review process.
Our Massachusetts Supreme Judicial Court handed down an important decision in August that requires judges to consider a defendant’s economic circumstances in setting bail and to either set affordable bail or to state clear reasons why they are setting an unaffordable bail.
That decision in itself amounts to a major reform, yet it creates a serious practical problem for the courts. In addition to requiring the courts to establish affordable bail amounts, the decision restates and emphasizes the principle that cash bail may never be set to hold someone just because they are dangerous. Cash bail may only be set to assure a defendant’s return to court.
Existing law allows prosecutors to move for the detention of people who pose a threat to the public or to a particular person, but that process is available only for certain crimes and is somewhat cumbersome. Additionally, that process may not lead to the detention of the defendant for the entire duration of the case.
Many judges will confess in private that, despite the principle that cash bail is permitted only to assure a defendant’s return to court, they routinely set cash bail based on their perceptions of the dangerousness of the defendant – they do not want to end up on the front page of the newspaper as the judge that released the guy who went out and did something awful.
Our criminal justice reform bill does three major things to the bail process. First, it rewrites the existing bail statute to create a clear road map for decision-making consistent with our high court’s guidance. Second, it goes beyond that guidance to further strengthen the procedural barriers to setting bail that is higher than a defendant can afford. Finally, it makes dangerousness hearings available in more cases and allows longer detention of defendants on a dangerousness finding.
The expansion of dangerousness hearings will result in more people being detained through that particular mechanism, but we do not believe that it will result in a net increase in incarceration for dangerousness, rather it will reduce abuse of bail.
If judges feel that they have to hold people to protect the public, but we don’t give them a workable mechanism to do it, they will just continue to set exorbitant bail. This will undermine the credibility of the other changes designed to assure the release of relatively harmless people who cannot afford bail.
The most critical new language appears in Section 58(e)(2). This language instructs judges not to set bail that is too high for the particular defendant to afford unless there is no alternative and the case really matters.
A judicial officer shall not set bail at an amount that the defendant represents, in good faith, that he or she cannot afford unless the judicial officer finds that
the defendant’s risk of non-appearance is so great that no alternative, less restrictive financial or nonfinancial conditions will suffice to assure the defendant’s presence at future court proceedings,
and the defendant is likely to be incarcerated if convicted on the charged offense.
If the judicial officer so finds, the judicial officer shall provide findings of fact and a statement of reasons for the bail decision, either in writing or orally on the record, stating:
(i) that the defendant’s risk of non-appearance is so great that no alternative, less restrictive financial or nonfinancial conditions will suffice to assure the defendant’s presence at future court proceedings;
(ii) that it is likely that the defendant will be incarcerated if convicted on the charged offense;
(iii) that the judicial officer considered the defendant’s financial resources and personal circumstances; and
(iv) why the commonwealth’s interest in the secured bond amount outweighs any likely adverse impact on the defendant’s employment, education, mental health treatment, substance or alcohol use treatment and primary caretaker responsibilities.
The last clause is intended to send the courts a strong message that creating absolute assurance of return to court is not the highest concern in all cases — that the impact of delayed release on the defendant and the defendant’s responsibilities should be given weight in the bail decision: Judges should not make defendants lose a week in jail while family members struggle to scrape together funds from multiple sources to meet a bail condition that the defendant cannot himself afford.
These considerations apply especially to juveniles and the proposed law specifically prohibits the setting of financial conditions as a method of detaining juveniles — the court can detain a juvenile without bail to assure his return to court, but only after making findings similar to those above for adults.
Apart from the actual setting of bail, courts routinely impose other conditions on the release of defendants to assure their return to court or to protect public safety. Imposition of excessive conditions is a setting up a defendant for failure and ultimate incarceration. To address this concern, the bill explicitly provides that:
[the court should] impose the least restrictive . . . condition or combination of conditions . . .
no condition or combination of conditions shall be imposed . . . that is not reasonably necessary to assure the appearance of the defendant as required . . . [or] to assure the safety of any other person and the community.
While we want to make sure that low-income defendants are not held unnecessarily, we do absolutely want to protect the public. The proposed law would expand the universe of cases in which the prosecutor can move to hold the defendant as dangerous. Under current law, dangerousness hearings are only available in cases involving particular crimes — mostly crimes of actual violence, but also certain gun and drug offenses. The proposed law would make dangerousness hearings available when those crimes are charged, but also in cases where:
As under current law, in order to have the defendant held as dangerous, the prosecutor must still establish by “clear and convincing evidence” that no condition or combination of conditions “will reasonably assure the safety of any other person and the community”.
In addition to expanding the scope of cases in which dangerousness hearings may be held, the proposed law would also change the consequences of a dangerousness finding. Under current law, a defendant can only be held for 120 days (subject to exclusions for defendant caused trial delays). Sometimes, this just isn’t enough time to get a case to trial, and under the proposed law, the defendant would not be released at 120 days, but would, instead be entitled to a new review of his dangerousness.
We feel that having a lawful method of detaining dangerous persons is critical to maintaining the integrity of the new bail process. Today judges routinely ignore the strict rule which is reasserted in the Brangan case that
[A] judge may not consider a defendant’s alleged dangerousness in setting the amount of bail . . .. Using unattainable bail to detain a defendant because he is dangerous is improper.
The law creates a new pretrial services “initiative“. It does not contemplate a formal new division within Probation Services, but does contemplate an individual being tasked with overseeing pretrial services that would be provided with existing resources. The critical functions of pretrial services will be to:
provide notification to supervised defendants of court appearance obligations and, as needed, require periodic reporting by letter, telephone, electronic communication, personal appearance or by other means designated by pretrial services to verify compliance with conditions of release;
. . . assist defendants who are released prior to trial in securing appropriate employment, medical, drug, mental or other health treatment or other needed social services that may increase the defendant’s chances of successful compliance with the conditions of release;
Our hope is that by providing defendants with reminders to return to court — think of the notices you get of medical appointments — and by starting to help defendants address life issues, we will be able to increase the probability that they return to court. If pretrial services demonstrates success, judges will feel less and less need to set cash bail.
Other elements of the criminal justice reform related to bail include:
Please don’t hesitate to contact us directly for assistance!