Bail Reform in the Criminal Justice Package (25 Responses)

This post was originally written on October 21, 2017 as a description of the Senate Bail draft; it was rewritten on April 22, 2018 to reflect the final results of the conference committee process. Return to reform overview.


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 evolved through the conference process. The Senate originally embraced an elaborate new road map for bail decisions. The ultimate drafting approach is much closer to the House bill which was a codification of the Brangan decision.

The final agreed product makes two important improvements on the post-Brangan status quo:

  • First, it raises the burden that judges must meet to set unaffordable bail.
  • Second, it institutes a supportive pre-trial services division focused on helping defendants return to court — we hope this will result in both higher appearance rates and lower detention rates.

Background — Brangan

Our Massachusetts Supreme Judicial Court handed down the very significant Brangan decision in August 2017. Brangan requires judges to consider a defendant’s economic circumstances in setting bail and to either set affordable bail or to state clear reasons why unaffordable bail is necessary to assure the defendant’s return to court.

Brangan first articulates that bail is a fundamental right, related to the presumption of innocence. Some advocates talk of abolishing cash bail, and we certainly want to reduce the frequency of it, but it cannot be abolished — people have a right to offer security for their release, although the court is not obliged to accept the security. The court quotes the oldest compilation of colonial law dating to 1641:

No mans person shall be restrained or imprisoned by any Authority whatsoever, before the law hath sentenced him thereto, If he can put in sufficient securitie, bayle or mainprise, for his appearance, and good behaviour in the meane time, unlesse it be in Crimes Capital, and Contempts in open Court, and in such cases where some expresse act of Court doth allow it.

Brangan next clarifies that the court must set a bail that reflects the unique circumstances of the individual.

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.

Brangan makes clear that bail need not be affordable:

Bail that is beyond a defendant’s reach is not prohibited. Where, based on the judge’s consideration of all the relevant circumstances, neither alternative nonfinancial conditions nor an amount the defendant can afford will adequately assure his appearance for trial, it is permissible to set bail at a higher amount, but no higher than necessary to ensure the defendant’s appearance.

But Brangan recognizes that unaffordable bail is the functional equivalent of detention and requires due process:

[When setting unaffordable bail,] the judge must provide findings of fact and a statement of reasons for the bail decision, either in writing or orally on the record. The statement must confirm the judge’s consideration of the defendant’s financial resources, explain how the bail amount was calculated, and state why, notwithstanding the fact that the bail amount will likely result in the defendant’s detention, the defendant’s risk of flight is so great that no alternative, less restrictive financial or nonfinancial conditions will suffice to assure his or her presence at future court proceedings.

In passing, Brangan reaffirms clear existing law that dangerousness per se is not a permissible consideration in setting bail. If a prosecutor feels that the defendant is dangerous, they should seek detention of the defendant through the 58A hearing process.

[A] judge may not consider a defendant’s alleged dangerousness in setting the amount of bail, although a defendant’s dangerousness may be considered as a factor in setting other conditions of release. Using unattainable bail to detain a defendant because he is dangerous is improper. If the Commonwealth wishes to have a defendant held pretrial because he poses a danger to another person or the community, it must proceed under G. L. c. 276, § 58A, and comply with that statute’s procedural requirements.

Background — Evolution of the Bail Draft

The senate initially embraced a rewrite of the bail statute. The relevant sections of law — Chapter 276, sections 57 (superior court) and 58 (district court) are redundant and cumbersome as a result of many years of evolution without a full rewrite. We were taken with the elegance of a proposed rewrite developed by court staff.

We were also concerned about the tensions created by the clarity of Brangan on the point that dangerousness may not be considered in bail decisions. 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.

The Senate draft did three major things to the bail process. First, it rewrote the existing bail statute to create a clear road map for decision-making. Second, it strengthened the procedural barriers to setting bail that is higher than a defendant can afford. Finally, it made dangerousness hearings available in more cases and allowed longer detention of defendants on a dangerousness finding. Additionally, it created a pre-trial services function within probation that would supply a number of rehabilitative services to defendants before trial.

We moved the Senate draft forward into the conference process, but there was a continuing drum beat of negative feedback on the new road map from people whom we expected would support it. Ultimately, the feedback sank in and we recognized that the new road map had the potential to encourage judges to set many more conditions on the pre-trial release of defendants, defendants who had not yet been proven guilty. This was precisely the opposite of our intention. When we realized that the road map was wrong, we concluded that, given that there was no opportunity to vet an alternative map, we had to work within the framework of the existing statute.

The Reforms as Passed — Codifying Brangan

The final version of the bill incorporates the key Brangan concepts into Chapter 276 sections 57 (superior court) and 58 (district court). It requires the consideration of the person’s ability to make bail (see sections 167 and 171 of the new law) and adds in each section the following language:

Except in cases where the person is determined to pose a danger to the safety of any other person or the community under section 58A, bail shall be set in an amount no higher than what would reasonably assure the appearance of the person before the court after taking into account the person’s financial resources; provided, however, that a higher than affordable bail may be set if neither alternative nonfinancial conditions nor a bail amount which the person could likely afford would adequately assure the person’s appearance before the court.

See sections 166 and 170 of the new law. It further incorporates Brangan due process concepts as follows:

If bail is set at an amount that is likely to result in the person’s long-term pretrial detention because he or she lacks the financial resources to post said amount, an authorized person setting bail must provide written or orally recorded findings of fact and a statement of reasons as to why, under the relevant circumstances, neither alternative nonfinancial conditions nor a bail amount that the person can afford will reasonably assure his or her appearance before the court, and further, must explain how the bail amount was calculated after taking the person’s financial resources into account . . .

See sections 168 and 172.

The Reforms as Passed — Building on Brangan

The new law goes one step further than Brangan, adding language that is intended to encourage judges to think carefully as to whether a case is truly serious enough to require the absolute certainty of the defendant’s return to court which is afforded by pre-trial detention. If unaffordable bail is be set to assure the appearance of the defendant, the court must explain

. . . why the commonwealth’s interest in bail or a financial obligation outweighs the potential adverse impact on the person, their immediate family or dependents resulting from pretrial detention.

See sections 168 and 172.

On the issue of 58A dangerousness, while the Senate draft did include language expanding the availability of dangerousness, we had to acknowledge that we lacked any specific testimonial foundation for the expansions that we contemplated. Given the seriousness of the issue for both the defense and the prosecution, it seemed better to leave those changes for an occasion where we would have more opportunity for vetting. We did lengthen the possible detention (after a dangerousness hearing) of a superior court defendant from 120 days to 180 days (excluding Rule 36 delays).

The Reforms as Passed — Pre-trial Services

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 are narrowly defined in the final law:

(b) Pretrial services shall perform the following duties for the departments of the trial court of the commonwealth: (i) develop, in coordination with the court and other criminal justice agencies, programs to minimize unnecessary pretrial detention; and (ii) provide notifications and reminders to defendants of court appearance obligations to reduce the risk of accidental defaults.

Our hope is that by providing defendants with reminders to return to court — think of the notices you get of medical appointments — 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.

The earlier Senate draft contemplated a broader mission in providing services to defendants, but this raised the same concerns that the road map raised — too much pre-conviction interference in the lives of defendants.

Next Steps

The sense of the conferees was that we need to live in to the reforms to see how they will work, but that we should create a commission to oversee the progress and suggest further reforms as needed.

Related Issues

Other elements of the criminal justice reform related to bail include:

Return to reform overview.

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    Will Brownsberger
    State Senator
    2d Suffolk and Middlesex District