Walsh v. Commonwealth ( 2020 )

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SJC-12648
JOSEPH WALSH & another1 vs. COMMONWEALTH
(and a consolidated case2).
Suffolk. November 7, 2019. - September 2, 2020.
Present: Gants, C.J., Gaziano, Lowy, Budd, Cypher,
& Kafker, JJ.
Pretrial Detention. Bail. Constitutional Law, Preventive
detention. Due Process of Law, Pretrial detainees.
Civil actions commenced in the Supreme Judicial Court for
the county of Suffolk on October 30 and November 7, 2018.
The cases were reported by Lowy, J.
Darren T. Griffis for Mateusz Dymon.
Merritt Schnipper (Robert Hennessy also present) for Joseph
Walsh.
Ellyn H. Lazar Moore, Assistant District Attorney, for the
Commonwealth.
Shira Diner & Ryan M. Schiff, for Massachusetts Association
of Criminal Defense Lawyers, amicus curiae, submitted a brief.
1 Committee for Public Counsel Services, intervener.
2 Mateusz Dymon & another vs. Commonwealth.
2
LOWY, J. In these consolidated cases we address issues
reported by a single justice of this court concerning the
pretrial detention of the petitioning codefendants, Joseph Walsh
and Mateusz Dymon (defendants). At the defendants' arraignments
on September 20, 2018, in the Superior Court in Worcester County
on charges relating to a home invasion,3 the Commonwealth moved
for each of them to be detained before trial due to their
alleged dangerousness, pursuant to G. L. c. 276, § 58A. Both
defendants were found to be indigent and were therefore entitled
to appointed counsel for their § 58A hearings. See G. L.
c. 276, § 58A (4); S.J.C. Rule 3:10, as appearing in 475 Mass.
1301 (2016). Due to a shortage of available defense attorneys,
however, there was a delay in the assignment of counsel for the
defendants. Consequently, their § 58A hearings were continued
until October 16, 2018, while the defendants were held without
bail, so that they could be represented by counsel. When the
§ 58A hearings took place, with the defendants' counsel present,
the hearing judge set bail in the amount of $7,500 cash for
Walsh and $5,000 cash for Dymon. Neither defendant was able to
post the required amount, and both were held in lieu of bail.
3 The defendants were indicted on charges of breaking and
entering in the daytime, with the intent to commit a felony,
placing a person in fear, G. L. c. 266, § 17; larceny in a
building, G. L. c. 266, § 20; vandalism, G. L. c. 266, § 126A;
and possession of burglarious tools, G. L. c. 266, § 49.
3
Both defendants then filed petitions in the county court
pursuant to G. L. c. 211, § 3. They argued that they were
entitled to release because their pretrial detention without
counsel for more than seven days violated the standards we
established for timely appointment of defense counsel for
indigent criminal defendants in Lavallee v. Justices in the
Hampden Superior Court, 442 Mass. 228 (2004). The single
justice reported the defendants' Lavallee claims to the full
court for resolution.4
We hold that the delay in providing counsel to the
defendants does not entitle them to release from pretrial
detention under Lavallee. Lavallee established a protocol to
secure representation for indigent defendants in the face of a
systemic shortage of available defense attorneys, carefully
balancing protection of those defendants' constitutional rights
to counsel with the need to ensure public safety. Although
Lavallee created a presumptive seven-day limit on an indigent
defendant's pretrial detention without counsel, id. at 246, it
authorized release of an unrepresented defendant from pretrial
detention only as a last resort if, at a status hearing before
the regional administrative justice (RAJ) of the Superior Court,
the defendant was still unrepresented and the RAJ determined
4 We acknowledge the amicus brief submitted by the
Massachusetts Association of Criminal Defense Lawyers.
4
that, despite the good faith efforts of the Committee for Public
Counsel Services (CPCS), there was still no counsel willing and
available to represent the defendant, id. at 247-248. Lavallee
did not create an automatic right to release from pretrial
detention for any indigent defendant held more than seven days
without counsel, and we decline to create such a right in these
cases.
There may be individual cases where, based on all the facts
and circumstances of the particular case, a judge determines
that it is necessary and appropriate to release an indigent
defendant who has been held in pretrial detention without
counsel. Our ruling here is not intended to foreclose that
possibility. But the defendants in the cases before us have not
presented such an individualized argument, and their release now
would not serve any remedial purpose in any event.
The defendants also argued in their petitions before the
single justice that, when the Superior Court hearing judge set
bail in amounts that they could not afford to post, resulting in
their long-term detention, he violated the standards for bail
determinations set out in Brangan v. Commonwealth, 477 Mass. 691
(2017), and in G. L. c. 276, § 58A. With regard to these
claims, the single justice reported certain questions concerning
(1) the level of analysis and detail that a judge must provide
in findings to satisfy the due process requirements that we
5
established in Brangan when bail is set in an amount that a
defendant cannot afford; and (2) what differences, if any, there
might be in the requirements for bail determinations under G. L.
c. 276, § 58A, and under the bail statutes, G. L. c. 276, §§ 57
and 58.
In response to the first Brangan question, we hold that a
judge5 should provide sufficient information to enable the
parties and the appellate courts to recognize that the judge has
undertaken the analysis required by our holding in Brangan and
its codification in the bail statutes. See Brangan, 477 Mass.
at 707 (when imposing bail amount that will likely result in
defendant's long-term detention, judge must address why no
alternative, less restrictive financial or nonfinancial
conditions will suffice to assure defendant's presence at future
court proceedings); G. L. c. 276, §§ 57, 58, as amended through
St. 2018, c. 69, §§ 168, 172. To assist judges in this process,
we have set out infra a series of steps for them to consider
before imposing a bail that a defendant likely cannot afford to
post.6
5 For simplicity, we use the term "judge" here as a
shorthand reference that includes the range of judicial officers
who are authorized to set bail under G. L. c. 276, §§ 57 and 58.
See Brangan v. Commonwealth, 477 Mass. 691, 693 n.3 (2017).
6 Nothing herein should be interpreted as in any way
revoking or superseding the special procedures and standards
6
We reject, however, the defendants' proposals for
additionally requiring a full evidentiary hearing and proof by
clear and convincing evidence before a defendant may be held on
unaffordable bail. Given the large number of bail hearings that
must be conducted under tight time constraints in the
Commonwealth's courts, and the limited evidence available to
judges in bail hearings, these additional procedural
requirements are impractical and would unduly interfere with the
government's interest in the efficient and economical
administration of justice. We therefore continue to adhere to
the standards that we endorsed in Querubin v. Commonwealth, 440
Mass. 108, 118-120 (2003), where we held that a full-blown
evidentiary hearing is not needed or required to determine the
amount of bail that will reasonably assure a defendant's
presence at trial, and that preponderance of the evidence is the
appropriate standard of proof. Finally, we hold that, when
proceeding under G. L. c. 276, § 58A, as under G. L. c. 276,
§§ 57 and 58, a judge may set bail in an amount beyond what a
defendant can afford to assure a defendant's appearance at
future court proceedings, but not to detain the defendant based
on the defendant's dangerousness. In doing so, however, the
that we established for setting bail and conducting bail reviews
during the COVID-19 pandemic in Committee for Pub. Counsel
Servs. v. Chief Justice of the Trial Court, 484 Mass. 431
(2020), S.C., 484 Mass. 1029 (2020).
7
judge should also meet the same constitutional due process
requirements that we established in Brangan.
Background. 1. Assignment of counsel for indigent
defendants in Worcester County. CPCS is statutorily responsible
for providing defense counsel for eligible defendants who cannot
afford to retain their own counsel in criminal proceedings in
the Massachusetts State courts. See G. L. c. 211D, §§ 1, 2B, 5.
CPCS provides representation through both a public defender
division (PDD) and a private counsel division. See G. L.
c. 211D, § 6. Attorneys in the PDD are salaried staff attorneys
employed by CPCS. See G. L. c. 211D, §§ 1, 6 (a). The private
counsel division contracts with local organizations to supply
private defense attorneys, also known as bar advocates, to
represent indigent defendants who are not represented by CPCS
staff attorneys. See G. L. c. 211D, § 6 (b). Both CPCS staff
attorneys and private bar advocates must meet certain benchmarks
and performance standards before they can represent a defendant
beyond arraignment in a felony case.
In Worcester County, CPCS contracts with Bar Advocates of
Worcester County, Inc., to provide private counsel for indigent
defendants. The Worcester PDD office and the bar advocate
program are responsible for covering arraignment sessions and
accepting appointments in criminal cases in the Worcester County
courts.
8
Although the number of bar advocates in Worcester County
certified to handle Superior Court cases has not significantly
diminished in recent years, these attorneys are taking fewer
Superior Court cases than they did in the past.7 As a result,
there have been delays in the appointment of counsel, especially
in cases where the Commonwealth has moved to detain a defendant
under G. L. c. 276, § 58A. Finding bar advocates who are
willing to accept appointment in a case involving a § 58A
hearing can be particularly challenging because these hearings
require intense preparation within a short time frame.8
2. Proceedings below. The charges against the defendants
arise out of their alleged participation in a home invasion in
the town of Douglas on July 25, 2018. The defendants were
7 Of fifty-six bar advocates certified to take Superior
Court cases during the period from July 1 to December 31, 2018,
one attorney dropped off the panel, eleven attorneys took no
Superior Court cases, nine took only one or two cases, and
thirty-three took between three and five cases. Evidence in the
record suggests that bar advocates have reduced their
participation for a variety of reasons, including overwork, the
low rate of compensation, and the availability of more lucrative
opportunities in private practice.
8 The difficulty has been exacerbated by a significant
increase in the number of § 58A hearings in the Superior Court
in Worcester County, more than doubling from fifty-four in 2016
to 111 in 2018. During the period from July 1 to December 31,
2018, it took an average of four days after a request was
submitted to the bar advocate program administrator to assign a
Superior Court certified bar advocate to a defendant, and an
average of five days after the request to assign a Superior
Court certified bar advocate to a defendant who was scheduled
for a § 58A hearing.
9
initially arraigned in the Uxbridge Division of the District
Court Department on July 27, 2018, where they were represented
by bar advocates certified to practice in the District Court,
but not in the Superior Court. The Commonwealth moved to have
the defendants detained before trial due to their alleged
dangerousness, pursuant to G. L. c. 276, § 58A. Both defendants
were represented by their appointed counsel at § 58A hearings in
the District Court on August 3, 2018, and after those hearings,
the defendants were found to be dangerous and held without bail.
On September 20, 2018, the defendants were arraigned in the
Superior Court in Worcester County on grand jury indictments
charging them with breaking and entering in the daytime with the
intent to commit a felony, putting a person in fear, G. L.
c. 266, § 17, and related charges. Both defendants were again
found to be indigent, and Superior Court certified bar advocates
were appointed to represent them, but only for that day. The
Commonwealth again moved for both defendants to be detained
pending trial under G. L. c. 276, § 58A, and a hearing on those
motions was scheduled for October 5, 2018. In the meantime, the
defendants continued to be held without bail.
On October 5, 2018, counsel for the Commonwealth appeared
for the § 58A hearings, ready to proceed, but no defense counsel
appeared on behalf of either defendant. No attorney had been
appointed to represent Dymon, and although a bar advocate had
10
filed an appearance to represent Walsh on October 1, 2018, that
attorney was not present at the October 5 hearing due to a
miscommunication about the hearing date. The presiding judge
then ordered the appointment of another bar advocate to
represent Walsh and the attorney in charge of the Worcester CPCS
office to represent Dymon. In response, the CPCS attorney in
charge filed a motion to decline acceptance of the appointment
and to release Dymon. She stated in the motion that neither she
nor any of the other PDD attorneys in the Worcester CPCS office
could take his case because they were either at their maximum
caseloads or unqualified to handle Superior Court cases, and
therefore they could not provide Dymon with constitutionally
effective counsel. The bar advocate assigned to represent Walsh
joined in that motion and similarly argued that he was too busy
to take Walsh's case. The presiding judge denied the motion but
allowed defense counsel to postpone the § 58A hearings so that
they would have time to prepare.
On October 16, 2018, the defendants, both of whom were
represented by new counsel, objected to their § 58A hearings
going forward, arguing that their constitutional and statutory
rights had been violated by their pretrial detention for more
than seven days without counsel and without a hearing. The
hearing judge concluded, however, that there had been good cause
for the continuances of the § 58A hearings to October 16, 2018.
11
With regard to the Commonwealth's motion to hold the defendants
in pretrial detention under G. L. c. 276, § 58A, the hearing
judge concluded that the defendants did not need to be held and
that certain conditions of release would reasonably assure the
safety of the community. He set bail at $7,500 for Walsh and
$5,000 for Dymon. Although the hearing judge recognized that
these bail amounts might be greater than the amounts that the
defendants could pay, he concluded that these amounts were
necessary, in light of the defendants' criminal histories and
the seriousness of the charges, to assure their appearances at
future proceedings. The hearing judge also set other conditions
on the defendants' release, including home confinement with a
global positioning system ankle bracelet. Neither defendant was
able to post the required bail, so both defendants remained in
detention.
The defendants then filed petitions in the county court
under G. L. c. 211, § 3, challenging their pretrial detention.
Following a hearing, the single justice issued a decision on
December 7, 2018, in which he reserved and reported two sets of
issues for our consideration. He reported the defendants'
Lavallee claims to the full court, so that we could "decide
whether these defendants and others like them are held
unconstitutionally . . . in circumstances like this, and, if so,
12
what remedy or remedies are appropriate."9 The single justice
also reported certain legal questions concerning (1) the level
of detail and analysis required by our decision in Brangan, 477
Mass. 691, when a judge sets a cash bail that the defendant
cannot afford; and (2) what differences, if any, there might be
in the requirements for a judge's bail determination under G. L.
c. 276, §§ 57 and 58, as was the case in Brangan, and a bail
determination made in the context of a dangerousness hearing
under G. L. c. 276, § 58A.10
Discussion. 1. Lavallee claims. In Lavallee, where we
addressed issues arising out of a similar shortage of defense
counsel in Hampden County in 2004, we established a protocol to
protect the rights of indigent defendants when a lack of
9 To assist the court in addressing the defendants' claims,
the single justice asked the parties to provide further factual
information on various topics relating to the assignment of
counsel for indigent defendants in Worcester County, especially
in cases involving hearings under G. L. c. 276, § 58A. The
single justice subsequently granted the Commonwealth's motion to
remand the case to the Superior Court to hold an evidentiary
hearing and make factual findings on these topics.
10Apart from reporting these legal questions, the single
justice retained jurisdiction over the defendants' conditions of
release claims, which he remanded to the Superior Court hearing
judge for a more detailed explanation of the reasoning behind
the bail amounts and other conditions of release that the
hearing judge set for the defendants. Upon receiving that
explanation from the hearing judge, the single justice denied
the defendants' conditions of release claims. The defendants'
appeals from that ruling are currently pending before this court
in separate dockets.
13
available defense attorneys interferes with the prompt
appointment of counsel. We ordered the clerk-magistrates of the
Superior Court in Hampden County and the Hampden County
divisions of the District Court to compile a weekly list of all
unrepresented criminal defendants and forward it to the RAJs for
the Superior Court and the District Court divisions, the
district attorney, the Attorney General, and the chief counsel
for CPCS. We then provided that the Superior Court RAJ should
schedule a prompt status hearing for each unrepresented
defendant who had been held for more than seven days, or whose
case had been pending for more than forty-five days. If the
defendant was still unrepresented as of the time of the hearing,
and if the Superior Court RAJ determined that CPCS had made a
good faith effort to secure representation and that no counsel
was willing and available to represent a defendant, then the
Superior Court RAJ was required to order (1) release on personal
recognizance of any defendant held in lieu of bail or on
preventive detention for more than seven days, subject to
probationary conditions under G. L. c. 276, § 87, which could be
ordered without the defendant's consent; and (2) dismissal of
the charges without prejudice, until such time as counsel was
made available, with respect to any defendant facing a felony
charge for more than forty-five days without counsel, or a
misdemeanor or municipal ordinance violation charge for more
14
than forty-five days without counsel, unless a judge had
declared an intention to impose no sentence of incarceration
pursuant to G. L. c. 211D, § 2A. See Lavallee, 442 Mass. at
247-249.
The defendants in the present cases urge us to extend
Lavallee by adopting a universal rule that (a) any indigent
defendants who are detained pending a § 58A hearing, or held on
cash bail, for whom counsel has not been appointed within seven
days after their detention commenced, should be ordered
released; and (b) any indigent defendants who have been released
before trial on personal recognizance or after posting a cash
bail, for whom counsel has not been appointed within forty-five
days after their arraignment, should have their cases dismissed
without prejudice. We decline to do so.
We recognize that Lavallee, 442 Mass. at 246, established a
presumptive seven-day limit on the pretrial detention of an
unrepresented indigent defendant, and a presumptive forty-five-
day limit on the pendency of charges against an unrepresented
indigent defendant. But there were sound reasons why the
protocol we established in Lavallee did not directly authorize
trial judges to automatically release unrepresented indigent
defendants on the basis of those standards. We noted in our
opinion that we shared the district attorney's concern about
releasing or dismissing cases against persons who were charged
15
with serious offenses, see id. at 244-245, and observed that it
was "[o]ur duty . . . to remedy an ongoing violation of a
fundamental constitutional right to counsel consistently with
the government's legitimate right to protect the public's
safety," id. at 246.
Toward that end, the Lavallee protocol broadly disseminated
information about unrepresented defendants, allowed additional
time to secure counsel for them before they were released or
their charges were dismissed, and authorized the Superior Court
RAJ to impose probationary conditions on defendants without
their consent if they were released from pretrial detention. By
requiring the clerk-magistrates to send lists of unrepresented
defendants to the district attorney, Attorney General, chief
counsel for CPCS, and the RAJs, we created a system for tracking
the impact of the shortage of defense counsel and ensured that
officials with significant oversight responsibility in the
criminal justice system were aware of the problem and could take
appropriate steps to correct it or mitigate its effects. By
providing a status hearing before the Superior Court RAJ, we
created a final opportunity for CPCS to secure counsel for
unrepresented defendants and, to the extent necessary, to triage
assignments so as to provide counsel to those accused of the
most serious crimes. By empowering the Superior Court RAJ to
release unrepresented defendants from pretrial detention or to
16
dismiss charges against them, we ensured that those decisions
would be made with consistency and with knowledge of their
collective impact on the criminal justice system. And by
granting the Superior Court RAJ, as part of the Lavallee
protocol, the extraordinary power to impose probationary
conditions on defendants without their consent if they were
released from pretrial detention, we enabled the RAJ to take
steps to supervise their release.
The Lavallee protocol thus promoted a systemic, coordinated
response to the shortage of defense counsel that could
appropriately balance the rights of indigent defendants with the
protection of public safety. The benefits of the Lavallee
protocol would be lost if we required trial court judges in all
cases to release any indigent defendant who has been detained
without counsel for more than seven days, or to dismiss the
charges against any indigent defendant who has been
unrepresented for more than forty-five days. We also note that
we have now adopted a procedure for promptly determining whether
invocation of the Lavallee protocol is necessary when a
substantial number of indigent defendants are unrepresented due
to a shortage of defense counsel. See Carrasquillo v. Hampden
County Dist. Courts, 484 Mass. 367, 389-391 (2020).
Our ruling here is not intended to prevent judges from
deciding in an individual case, based on all the facts and
17
circumstances of that case, that it is necessary and appropriate
to release an indigent defendant who has been held in pretrial
detention without counsel, or to dismiss the charges without
prejudice against an indigent defendant who has been
unrepresented. In an individual case, the lapse of the time
limits we established in Lavallee is a significant factor to be
considered by the judge, but it does not automatically entitle
the defendant to release or dismissal of charges. See
Carrasquillo, 484 Mass. at 391 & n.31.
In the cases before us, however, the defendants have not
argued for their release based on particular aspects of their
situations apart from their proposed general rule that
unrepresented indigent defendants should be automatically
released from pretrial detention if they are held without
counsel for more than seven days. Moreover, no remedial purpose
would be served by ordering their release now.
Lavallee's provision for release of defendants held in
pretrial detention for more than seven days without counsel was
intended to address two issues: (a) the unfairness of
subjecting unrepresented defendants to a deprivation of liberty
through bail hearings or § 58A hearings, see Lavallee, 442 Mass.
at 233-234; and (b) the prejudice to unrepresented defendants'
pretrial preparation that results when they are "held in lieu of
bail or under an order of preventive detention," and are
18
consequently "virtually powerless to obtain a lawyer on their
own or to begin working on their own defense," id. at 236.
Here, in contrast with the petitioning defendants in Lavallee,
see id. at 230, 232, the defendants were represented at their
§ 58A hearings in both the District Court and the Superior
Court, so there was no violation of their right to counsel at
that stage. And because the defendants have been represented by
counsel ever since their § 58A hearings in the Superior Court,
there is no reason to release them now to enable them to obtain
a lawyer or to facilitate their own pretrial preparation. See
id. at 248 (authorizing release of unrepresented defendant from
pretrial detention only if, at time of status hearing before
RAJ, "there is still no counsel willing and available to
represent [the] defendant"). Accordingly, we conclude that the
delay in providing counsel to the defendants does not entitle
them to release from pretrial detention under Lavallee.
2. Brangan questions. In Brangan, 477 Mass. at 697-700,
we held that a judge must consider a defendant's financial
resources as a factor when setting a bail amount. We further
concluded that, although setting unaffordable bail is not
necessarily unconstitutional, see id. at 700-702, "where a judge
sets bail in an amount so far beyond a defendant's ability to
pay that it is likely to result in long-term pretrial detention,
it is the functional equivalent of an order for pretrial
19
detention, and the judge's decision must be evaluated in light
of the same due process requirements applicable to such a
deprivation of liberty," id. at 705. Among other requirements,
we held that,
"where, based on a defendant's credible representations and
any other evidence before the judge, it appears that the
defendant lacks the financial resources to post the amount
of bail set by the judge, such that it will likely result
in the defendant's long-term pretrial detention, 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."
(Footnotes omitted.)
Id. at 707.
Here, the single justice posed the following questions
seeking further guidance concerning the findings of fact and
statement of reasons required by Brangan:
1. "Can, and should, the full court provide any further
guidance, beyond what it has already said in Brangan, for
trial court judges, the bar, and single justices of this
court as to the level of analysis and detail that must be
reflected in the judge's statement when a judge sets an
unaffordable cash bail? Must the judge itemize the
defendant's resources, articulate a detailed factor-by-
factor analysis as to why the amount of the bail is
nevertheless appropriate, and specify each less restrictive
alternative that has been considered and why each has been
rejected -- or is it sufficient that the judge's statement
indicates in a more general way the judge's consideration
of the relevant factors and the animating rationale for his
20
or her determination? In short, what level of detail is
required for the statement?"
2. "What differences, if any, might there be in the
requirement for a judge's bail determination (and the
statement of reasons he or she must provide) under G. L.
c. 276, §§ 57 and 58, as was the case in Brangan, and a
bail determination made in the context of a dangerousness
hearing pursuant to G. L. c. 276, § 58A, as we have here?
For example, may a judge set a cash bail that a defendant
cannot post under G. L. c. 276, § 58A (3)?"
a. Application of procedural due process balancing test.
The single justice's first question concerning "the level of
analysis and detail that must be reflected in the judge's
statement" when setting an unaffordable bail is fundamentally a
question about the degree of procedural due process that a
defendant must receive. Therefore, in answering this question,
we "must balance the interests of the individual affected, the
risk of erroneous deprivation of those interests and the
government's interest in the efficient and economic
administration of its affairs." Josh J. v. Commonwealth, 478
Mass. 716, 722 (2018), quoting Paquette v. Commonwealth, 440
Mass. 121, 131 (2003), cert. denied, 540 U.S. 1150 (2004).
i. Interests of the defendant. Whenever bail is set in an
amount that a defendant cannot afford to post, that defendant
faces a total deprivation of liberty, a fundamental right,
through pretrial detention. See Brangan, 477 Mass. at 702-703,
705. Although this deprivation of liberty is only "temporary" -
- until a trial takes place, the defendant pleads guilty, or the
21
case is dismissed -- it can nevertheless be lengthy. In
Brangan, the defendant had been held on bail he could not afford
for more than three and one-half years when we issued our
decision. See id. at 693. In the present consolidated cases,
the defendants have been held on bail since October 16, 2018.
This temporary deprivation of liberty can have severe and
long-lasting collateral consequences. The United States Supreme
Court has aptly catalogued some of the negative effects of
pretrial detention:
"The time spent in jail awaiting trial has a detrimental
impact on the individual. It often means loss of a job; it
disrupts family life; and it enforces idleness. Most jails
offer little or no recreational or rehabilitative programs.
The time spent in jail is simply dead time. Moreover, if a
defendant is locked up, he is hindered in his ability to
gather evidence, contact witnesses, or otherwise prepare
his defense. Imposing those consequences on anyone who has
not yet been convicted is serious. It is especially
unfortunate to impose them on those persons who are
ultimately found to be innocent." (Footnotes omitted.)
Barker v. Wingo, 407 U.S. 514, 532-533 (1972). See Brangan, 477
Mass. at 709 n.23 ("Pretrial detention disrupts a defendant's
employment and family relationships, with often tragic
consequences").
ii. Risk of erroneous deprivation. In considering the
risk that a bail decision will erroneously deprive a defendant
of liberty when it is unnecessary to assure the defendant's
future appearance in court, we recognize that bail decisions
often involve difficult judgment calls made under challenging
22
circumstances. Judges making bail decisions must carefully
balance the defendant's liberty interest against the
government's interest in assuring the defendant's return to
court, taking into account a range of statutory factors. They
usually have to make these decisions based only on the limited
information about the defendant that they can glean from the
representations of counsel, a police report, a court activity
record information (CARI) report, a warrant management system
report, and the indigency intake form filled out by the
defendant with the help of a probation officer to determine
whether a defendant is eligible for a court-appointed attorney.
And judges must often make bail decisions quickly, while
handling a crowded docket. Especially under these
circumstances, determining whether bail is necessary and, if so,
in what amount, can be a challenging task in many cases.
In theory, the risk that a defendant will be erroneously
deprived of liberty in the bail-setting context can take two
forms. First, the judge may overestimate the amount of bail
that a defendant can reasonably afford. As a result, the judge
may set a bail amount that is not necessarily intended to result
in pretrial detention, but in fact has that effect. Second, the
judge may overestimate the amount of bail that is necessary to
reasonably assure a defendant's presence at future proceedings,
choosing an amount that is more than a defendant can afford when
23
in fact an affordable amount, or other nonfinancial conditions
of release, would suffice. But in actual practice in a
particular case, it can be difficult to draw these distinctions.
And given the discretionary nature of bail decisions and the
many factors that judges may consider in reaching those
decisions, it is hard to assess in the aggregate whether bail
decisions are "correct" or "incorrect" and how often persons are
erroneously held on bail.
According to recent Trial Court data for cases arraigned
and disposed of in the District Court and Boston Municipal Court
during the seventeen months after our decision in Brangan,
defendants were released on personal recognizance or with
nonfinancial conditions in the overwhelming majority of cases -–
80.2 percent.11 Defendants were held without bail in a very
small percentage of these cases –- 3.7 percent.12 Bail was set
in the remaining 16.1 percent of cases, with defendants being
released on bail in 9.2 percent of all cases and held on bail in
6.9 percent of all cases.13 The cohort of persons held on bail
11Massachusetts Trial Court, Department of Research and
Planning, Pre-Trial Release Decisions: Pre and Post Brangan v.
Commonwealth, at 1-2 (May 7, 2019) (Pre-Trial Release
Decisions), https://www.mass.gov/doc/pretrial-release-
decisions/download [https://perma.cc/7TVJ-URG8].
12 Pre-Trial Release Decisions, supra at 2.
13 Pre-Trial Release Decisions, supra at 2.
24
is thus relatively small when considered as a percentage of all
cases. But it looms larger when considered as a percentage of
those cases where bail was set. During the seventeen months
after our decision in Brangan, defendants were held on bail in
42.7 percent of the cases where bail was imposed as a condition
of release in the District and Boston Municipal Courts.14 If
pretrial detention is the outcome in more than two out of every
five cases where bail is set, then it appears that too often one
of bail's purposes -- "preserv[ing] the liberty of the accused"
pending trial -- is not being achieved. Brangan, 477 Mass. at
692.
iii. Government interests. The government has a
legitimate and compelling interest in assuring that persons
charged with criminal offenses return to court and appear at
trial. See Querubin, 440 Mass. at 112-116. The government also
has an important interest in ensuring that bail decisions are
made efficiently and economically. The volume of bail hearings
is enormous. According to Trial Court data, more than 150,000
criminal cases were arraigned and disposed of in the District
and Boston Municipal Courts during the seventeen months after
our decision in Brangan. Persons were released on bail or held
subject to bail in approximately sixteen percent of those cases
14 Pre-Trial Release Decisions, supra at 3.
25
-- a total of more than 24,000 cases.15 Adopting procedural
requirements for bail hearings that are too onerous could wreak
havoc with the efficient processing of these cases.
b. Steps to be considered in setting bail. Taking into
account the fundamental liberty interests at stake, the serious
collateral consequences of pretrial detention for defendants and
their families, and the significant percentage of bail orders
that result in pretrial detention, we conclude that some
clarification of the necessary procedural protection would be
useful to ensure that the due process requirements we
established in Brangan are effective. But any procedures we
adopt must not unduly burden the efficient and economical
administration of justice. Accordingly, we seek to steer a
middle course. On the one hand, we conclude that when a judge
sets a bail that a defendant cannot afford to post, the judge
must do more than articulate the animating rationale for that
determination and indicate in a general way that he or she has
considered the relevant factors. But neither do we require the
judge to articulate a detailed factor-by-factor analysis as to
why the amount of the bail is appropriate, or to specify each
less restrictive alternative that has been considered and why
each has been rejected. Rather, we hold that a judge need only
15 See Pre-Trial Release Decisions, supra at 1-2.
26
provide sufficient information to enable the parties and the
appellate courts to recognize that the judge has undertaken the
analysis required by our holding in Brangan and its codification
in the bail statutes. Cf. Pinney v. Commonwealth, 484 Mass.
1003, 1005-1006 (2020) (where defendant was charged with murder
in first degree and judge imposed $250,000 cash bail that
defendant could not afford, judge's findings and reasons were
sufficient to satisfy due process where it was clear from record
that judge considered relevant factors and engaged in required
individualized bail determination); A Juvenile v. Commonwealth,
480 Mass. 1012, 1014 (2018) ("where a bail determination is
likely to lead to pretrial detention, a judge making that
determination . . . must make findings . . . demonstrat[ing]
that [he or she] has engaged in fair and meaningful
consideration of reasonable alternatives relevant to the
circumstances of the case such that a reviewing court can be
satisfied that the requirements detailed in Brangan have been
met"). The judge's statement need not be lengthy, and it may be
written or oral, as long as it is on the record and provides
this information. See Brangan, 477 Mass. at 708. To assist
judges in undertaking this analysis, we set out a series of
steps for them to consider before imposing a bail that a
defendant cannot afford.
27
i. Policy of limiting pretrial restrictions on liberty.
As a general principle, decisions about pretrial release and
detention should be governed by "the Commonwealth's policy of
limiting pretrial restrictions on liberty." Commonwealth v.
Perito, 417 Mass. 674, 678 (1994). "[D]efendants should be
burdened with the fewest restrictions on their pretrial liberty
that will adequately assure their presence at trial." Id.,
quoting Reporters' Notes to Mass. R. Crim. P. 6, Mass. Ann.
Laws, Rules of Criminal Procedure, at 94 (Law. Coop. 1979). The
roots of this policy reach back to Massachusetts's earliest days
as a colony, as expressed in The Body of Liberties (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 . . . ." Brangan, 477 Mass. at 692.
The policy of limiting pretrial restrictions on liberty is
based in part on constitutional principles. Because liberty and
freedom from physical restraint are fundamental rights protected
by the Fourteenth Amendment to the United States Constitution
and arts. 1, 10, and 12 of the Massachusetts Declaration of
Rights, the "strict scrutiny" test of substantive due process
requires that governmental restraints on liberty must be
narrowly tailored to further a legitimate and compelling
governmental interest. See United States v. Salerno, 481 U.S.
28
739, 746 (1987); Sharris v. Commonwealth, 480 Mass. 586, 594-595
(2018); Josh J., 478 Mass. at 721; Brangan, 477 Mass. at 702-
703.16 Further, "[e]ven where government action survives
substantive due process scrutiny, procedural due process
protections require that the governmental action be implemented
in a fair manner." Josh J., supra at 722, citing Paquette, 440
Mass. at 131. Accordingly, we have observed that the
government's legitimate and compelling interest in assuring a
defendant's presence at trial can justify pretrial detention
"only 'in carefully circumscribed circumstances and subject to
quite demanding procedures.'" Brangan, supra at 705, quoting
Mendonza v. Commonwealth, 423 Mass. 771, 790 (1996).17
ii. Presumption of release on personal recognizance. In
accord with the Commonwealth's policy of limiting pretrial
restrictions on liberty, the "preferred disposition" under our
16We have sometimes added to this test the further
requirement that the challenged statute or other government
restriction must "be the least restrictive means available to
vindicate" the government's interest. Sharris, 480 Mass. at
598, quoting Commonwealth v. Weston W., 455 Mass. 24, 35 (2009).
17For example, in Aime v. Commonwealth, 414 Mass. 667
(1993), we held that 1992 amendments to G. L. c. 276, § 58,
which allowed judges to consider a defendant's dangerousness in
setting bail, did not meet the due process requirements of the
Fourteenth Amendment because they "essentially grant[ed] the
judicial officer unbridled discretion to determine whether an
arrested individual is dangerous" and lacked adequate procedures
"'designed to further the accuracy' of the judicial officer's
determination." Id. at 682, quoting Salerno, 481 U.S. at 751.
29
"detailed general bail statute," G. L. c. 276, § 58, is release
on personal recognizance without surety. Commonwealth v. Dodge,
428 Mass. 860, 865 (1999). See G. L. c. 276, § 58 (providing
that judge or other authorized officer "shall admit such person
to bail on his [or her] personal recognizance without surety
unless said justice . . . determines, in the exercise of his [or
her] discretion, that such a release will not reasonably assure
the appearance of the person before the court").18 "Our
18Although the same language does not appear in G. L.
c. 276, § 57, which governs bail proceedings in the Superior
Court, see Brangan, 477 Mass. at 697, we have previously
indicated that the presumption of release on personal
recognizance is equally applicable under § 57. See Commonwealth
v. Hampe, 419 Mass. 514, 518 n.3 (1995) (citing G. L. c. 276,
§ 57, as well as § 58, in stating that "[a] person under arrest
has a right to a hearing on admission to bail with a presumption
of release on personal recognizance"). We also note that § 57
provides that "[a]ll persons authorized to take bail under this
section shall be governed by the rules established by the
supreme judicial or superior court." Moreover, the Superior
Court's own rules (albeit for persons authorized to take bail
out of court) provide that "[a]ny person charged with an offense
other than an offense punishable by death, or for any offense on
which a warrant of arrest has been issued by the Superior Court,
is required by law to be released on his personal recognizance
pending trial unless the person setting the terms of release
determines, in the exercise of his discretion, that such a
release will not reasonably assure the appearance of the person
as required." Rule 3 of the Rules of the Superior Court
Governing Persons Authorized to Admit to Bail Out of Court
(2014). See also Trial Court Guidelines for Pretrial Conditions
of Release, at 1 (Nov. 2016) ("the legal presumption for all
criminal charges excluding capital cases is that an individual
will be released on personal recognizance"). To the extent that
dictum in Serna v. Commonwealth, 437 Mass. 1003, 1003 n.1
(2002), may suggest that release on personal recognizance
30
Legislature intended § 58 to protect the rights of the defendant
by establishing a presumption that he or she will be admitted to
bail on personal recognizance without surety . . . ." Delaney
v. Commonwealth, 415 Mass. 490, 495 (1993).
The presumption that the defendant is entitled to release
on personal recognizance without surety may be rebutted,
however, by a history of prior court defaults19 or evidence that
the defendant poses a flight risk, or the other factors listed
in the bail statutes:
"the nature and circumstances of the offense charged, the
potential penalty the person faces, the person's family
ties, financial resources and financial ability to give
bail, employment record and history of mental illness, his
[or her] reputation and the length of residence in the
community, his [or her] record of convictions, if any, any
illegal drug distribution or present drug dependency, any
flight to avoid prosecution or fraudulent use of an alias
or false identification, any failure to appear at any court
proceeding to answer to an offense, whether the person is
on bail pending adjudication of a prior charge, whether the
acts alleged involve abuse . . . , whether the person has
any history of [abuse prevention] orders issued against him
[or her] . . . , whether he [or she] is on probation,
without surety is not available under G. L. c. 276, § 57, we
reject it.
19We note, however, that not all defaults necessarily
indicate a willful failure to appear. A special commission
established by the Legislature recently recommended developing a
system for differentiating between "no show" defaults and
defaults entered due to a defendant's late appearance the same
day, failure to pay a fine on time, or missing a court date
because he or she was being held in another county. See Final
Report of the Special Commission to Evaluate Policies and
Procedures Related to the Current Bail System, at 20 (Dec. 31,
2019), https://d279m997dpfwgl.cloudfront.net/wp/2020/01/0102
_bail-reform-report.pdf [https://perma.cc/ZR3X-Q3FW].
31
parole, or other release pending completion of sentence for
any conviction, and whether he [or she] is on release
pending sentence or appeal for any conviction."
G. L. c. 276, § 58. See G. L. c. 276, § 57.
iii. Nonfinancial conditions of release. If the
Commonwealth rebuts the presumption of release on personal
recognizance, the judge should consider whether there are
nonfinancial conditions of release that will adequately assure
the defendant's appearance before the court. As we noted in
Brangan, 477 Mass. at 709 n.23, "[r]esearch indicates that
alternatives to cash bail and secured bonds, such as unsecured
bonds, pretrial supervision, and court notification systems, may
be just as effective in assuring that a defendant appears at
future court proceedings."
The judge may impose nonfinancial conditions of release
that are related to the nature of the charges or the goal of
assuring the defendant's return to court, or both, under G. L.
c. 276, §§ 57 and 58. If the judge "determines it to be
necessary, the defendant may be ordered to abide by specified
restrictions on personal associations or conduct including, but
not limited to, avoiding all contact with an alleged victim of
the crime and any potential witness or witnesses who may testify
concerning the offense, as a condition of release." G. L.
c. 276, § 58. Or, where the defendant has been charged with
certain crimes involving domestic abuse, the judge "may impose
32
conditions on a person's release in order to ensure the
appearance of the person before the court and the safety of the
alleged victim, any other individual or the community." Id.
See G. L. c. 276, § 57; G. L. c. 276, § 42A.
For our purposes here, it is particularly important to note
that the Legislature has established several nonfinancial
alternatives to bail. For example, the court may order the
defendant to participate in a pretrial services program at the
office of community corrections (OCC), in lieu of bail or as a
condition of release consistent with G. L. c. 276, §§ 57, 58,
and 58A, pursuant to G. L. c. 211F, § 3A.20 With the defendant's
consent, the court may also order the defendant to participate
in a treatment program offered by OCC in lieu of bail or as a
condition of release.21 In addition, pursuant to G. L. c. 276,
§ 87, the court may place the defendant on pretrial conditions
20"Participation in a pretrial services program
[administered by the office of community corrections] may be
ordered by the court, in lieu of bail or as a condition of
release consistent with [G. L. c. 276, §§ 57, 58, and 58A]. The
court may dictate the duration and conditions of the pretrial
services program." G. L. c. 211F, § 3A (a), inserted by
St. 2018, c. 72, § 12. See G. L. c. 211F, § 1, as amended
through St. 2018, c. 72, § 8.
21"Participation in a community corrections program
pursuant to [G. L. c. 211F] may be ordered by the court, in lieu
of bail, or as a condition of release; provided, however, that
the defendant shall consent to such participation." G. L.
c. 276, §§ 57, 58, 58A, as amended through St. 2018, c. 69,
§§ 169, 173, 175.
33
of release that are supervised by the probation service if the
defendant consents.22 The probation service has also begun a
pretrial services initiative that includes the use of text
messaging to remind defendants of court dates, pursuant to G. L.
c. 276, § 99G.
iv. Setting bail. If the judge determines that
nonfinancial conditions of release are inadequate and that bail
is necessary to assure the defendant's appearance before the
court, then the judge must consider the defendant's financial
resources in setting the amount of bail. See G. L. c. 276, § 57
("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");
G. L. c. 276, § 58 (same); Brangan, 477 Mass. at 698-700
(discussing common-law and constitutional principles that
mandate consideration of a defendant's financial resources in
setting bail).
22See Commonwealth v. Preston P., 483 Mass. 759, 762-763
(2020) (distinguishing between pretrial probation under G. L.
c. 276, § 87, and pretrial conditions of release that are
supervised by probation service under § 87). Of course, the
court also has the power to impose nonfinancial conditions of
release pursuant to G. L. c. 276, §§ 57 and 58, as discussed
supra. Unlike pretrial conditions of release under § 87,
conditions of release under §§ 57 and 58 may be ordered without
the defendant's consent, except when the court orders
participation in a community corrections treatment program. See
note 21, supra.
34
To the extent possible, the judge should try to determine
what amount the defendant can reasonably afford to post. As an
initial step, the judge can simply ask the defendant or defense
counsel how much the defendant can reasonably afford to post.
See Brangan, 477 Mass. at 707 n.21 (referencing "what a
defendant represents that he can pay" as baseline for
establishing amount that defendant can reasonably afford). But
the judge is not bound by this representation, of course, and
may independently decide how much the defendant can reasonably
afford to post based upon the probation service report, which
determines whether a defendant qualifies as indigent for court-
appointed counsel, and any other evidence before the court. See
id. ("The judge also is not bound by a defendant's
representation as to what bail he can reasonably afford, and may
indicate that she is not convinced, based on the record, that
the defendant cannot post bail in the amount set by the judge");
id. at 707 n.20 ("consideration of a defendant's financial
resources may be facilitated by reviewing the report prepared by
the probation department to determine whether a defendant
qualifies as indigent for court-appointed counsel"); Mass. R.
Crim. P. 7 (a) (3) and 7 (b) (2), as appearing in 461 Mass. 1501
(2012); S.J.C. Rule 3:10, § 5 (a), as appearing in 475 Mass.
1301 (2016); G. L. c. 211D, § 2A (a)-(c). In deciding how much
bail the defendant can afford, as in calculating a defendant's
35
ability to pay restitution, the judge should consider "the
financial resources of the defendant, including income and net
assets, and the defendant's financial obligations, including the
amount necessary to meet minimum basic human needs such as food,
shelter, and clothing for the defendant and his or her
dependents." Commonwealth v. Henry, 475 Mass. 117, 126 (2016).
We recognize that it will often be difficult to ascertain
the amount of bail that a defendant can reasonably afford given
the limited information available to the court and, in some
cases, the possibility that the defendant may have unstated or
illegal sources of income. But it is worthwhile for the judge
to try to determine this amount, to the extent it is possible,
so that the judge will be aware of whether the bail ultimately
imposed will likely result in the defendant's pretrial
detention.
The judge should then determine the amount of bail that is
necessary to assure the defendant's appearance. This amount may
be more than what the defendant can reasonably afford. See
G. L. c. 276, § 57 ("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"); G. L. c. 276, § 58
(same); Brangan, 477 Mass. at 701 ("Bail that is beyond a
defendant's reach is not prohibited"). But if the judge sets
36
bail in an amount that is more than the defendant can afford,
the judge must also
"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 and 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."
G. L. c. 276, § 58, as amended through St. 2018, c. 69, § 172.
See G. L. c. 276, § 57, as amended through St. 2018, c. 69,
§ 168. A judge may satisfy this requirement by reviewing,
either in writing or orally on the record, the particular
circumstances and factors that have led the judge to conclude
that the presumption of release on personal recognizance has
been rebutted, that nonfinancial conditions and a lesser bail
amount would be inadequate, and that the Commonwealth's interest
in this bail amount outweighs the potential adverse impact of
pretrial detention on the defendant and his or her immediate
family or dependents.23 Cf. Pinney, 484 Mass. at 1004, 1004-1006
23For example, an oral statement on the record such as the
following is more than sufficient:
"Taking into account the presumption of recognizance that
has been rebutted in this case and the conditions of bail
that I will impose, I will impose a bail of $____ cash.
After a review of the defendant intake sheet and the
37
(judge's findings and reasons for imposing bail that defendant
could not afford satisfied due process, where defendant was
charged with murder in first degree and judge weighed, among
other factors, defendant's risk of flight, previous record,
finances, work history, and family circumstances, as well as
nature of charges and strength of Commonwealth's case); A
Juvenile, 480 Mass. at 1014-1015 (judges provided sufficient
detail to demonstrate that there was no abuse of discretion in
setting bail that juvenile could not afford where judges noted
that juvenile was in default and had essentially fled from
custody when he was arrested on new charges, and that there was
no reasonable alternative to bail). In accord with the statute,
the judge should also explain, at least in general terms, how
the bail amount was determined.
proffer of the defendant through counsel and the argument
of counsel, I find that the defendant cannot reasonably
afford to make that bail. Recognizing that the defendant's
financial ability to make bail and the defendant's
financial conditions are factors I must consider in setting
bail based on the nature and circumstances of this charge
of indecent assault and battery on a child under fourteen,
and the defendant's alleged attempts to coerce and
manipulate this alleged victim not to disclose the
defendant's alleged misconduct, the fact that the defendant
has eight appearance defaults on six separate charges, his
violations of chapter 209A restraining orders, which like a
posted bail, are orders of the court, the strength of the
Commonwealth's case, and that the defendant has numerous
other prior convictions, including an escape, and
convictions for drug distribution, I find that the need for
this bail amount exceeds the adverse impact on the
defendant and his family."
38
c. Other proposed procedural protections. The defendants
further propose that we should adopt additional procedural
protections before a court can impose an unaffordable bail on a
defendant. They argue that we should require a full evidentiary
hearing, at which the defendant has the right to testify, to
present witnesses, and to cross-examine witnesses, as is
required when the Commonwealth moves to have a defendant held
for dangerousness under G. L. c. 276, § 58A. The defendants
also urge us to adopt "clear and convincing evidence" as the
appropriate standard of proof for the statutory findings that a
judge must make before imposing an unaffordable bail. See G. L.
c. 276, §§ 57, 58. We decline to adopt these additional
requirements, based on principles of stare decisis and our
concern that these requirements would place unrealistic burdens
on judges.
In Querubin, where we considered the due process
requirements that should apply when a defendant is held without
bail due to a risk of flight, we adopted due process standards
that conflict with the defendants' proposals. We concluded that
a "full-blown evidentiary hearing that includes the right to
present and cross-examine witnesses is not needed or required"
for a bail proceeding, even where the defendant is held without
bail, although "such a hearing, or some variation, may be held
in the discretion of the judge when the circumstances of a
39
particular case warrant." Querubin, 440 Mass. at 118. We also
held that preponderance of the evidence is the appropriate
standard for determining whether a defendant poses a flight risk
and whether any condition or combination of conditions will
reasonably assure the defendant's appearance, following Federal
decisions under the Federal Bail Reform Act of 1984, 18 U.S.C.
§ 3142. See id. at 119-120. More recently, we considered the
standards for bail decisions when a defendant has been charged
with murder in the first degree, and we followed Querubin in
holding that, in such a case, a full evidentiary hearing is not
required and that pretrial detention without bail is appropriate
where the judge concludes, based on a preponderance of the
evidence, that it is necessary to assure the defendant's
appearance at future court proceedings. Vasquez v.
Commonwealth, 481 Mass. 747, 748, 758 (2019). Given that we
concluded in these cases that a nonevidentiary hearing and proof
by a preponderance of the evidence are sufficient safeguards
even where a defendant is being held without bail to assure his
future appearance, it would be incongruous for us to embrace a
higher standard where a defendant's pretrial detention results
from the imposition of an unaffordable bail.
"Adherence to the principle of stare decisis provides
continuity and predictability in the law . . . ." Commonwealth
v. Ruiz, 480 Mass. 683, 694 (2018), quoting Stonehill College v.
40
Massachusetts Comm'n Against Discrimination, 441 Mass. 549, 562,
cert. denied sub nom. Wilfret Bros. Realty Co. v. Massachusetts
Comm'n Against Discrimination, 543 U.S. 979 (2004). We
acknowledge that "the principle is not absolute," Ruiz, supra,
quoting Stonehill College, supra, and that "[t]he force of stare
decisis is at its nadir in cases concerning procedural rules
that implicate fundamental constitutional provisions," Doe, Sex
Offender Registry Bd. No. 380316 v. Sex Offender Registry Bd.,
473 Mass. 297, 301 (2015), quoting Alleyne v. United States, 570
U.S. 99, 116 n.5 (2013). But neither should we upset settled
law unless "the benefits of so doing outweigh the values
underlying stare decisis." Ruiz, supra at 694-695, quoting
Stonehill College, supra. Here, we conclude that the benefits
of adopting the additional procedural protections proposed by
the defendants are insufficient to outweigh the values
underlying stare decisis.
Given the nature of the evidence that is typically
presented at a bail hearing, and existing procedural
protections, requiring a full evidentiary hearing in every
single case where the court is contemplating imposing a bail
that the defendant may be unable to afford would not add a
significant benefit. As we observed in Querubin, 440 Mass. at
118, in most bail proceedings,
41
"[t]he necessary determination can be adequately presented
and decided based on documents (e.g., police reports,
witness statements, letters from employers and others, and
probation records) and the representations of counsel."
The defendant has the right to be represented by counsel at a
bail hearing, see Lavallee, 442 Mass. at 234, and counsel should
be given the opportunity to address (1) the defendant's CARI
report, including especially the nature of any defaults; (2) the
police report, or the prosecution's version of the offense; and
(3) the defendant's ability to pay and his or her risk of flight
or otherwise failing to return to court.
The time constraints on bail hearings would make it
impractical to require a full-blown evidentiary hearing,
comparable to that required under G. L. c. 276, § 58A, before a
court can set a bail that a defendant may be unable to pay.
Indeed, there is a certain irony about the defendants'
contention that bail hearings should be more like § 58A
hearings, given the challenges that CPCS has already encountered
in providing defense counsel coverage for the steeply increasing
number of § 58A hearings in Worcester County, as the defendants
themselves experienced. To be sure, lack of resources cannot
justify forgoing constitutional safeguards where they are
necessary. But since the balancing test bids us to consider the
government's interest in efficient and economic administration,
it is appropriate to consider the burden on existing resources
42
that a full evidentiary hearing would impose if it were required
in every case where the court is contemplating a potentially
unaffordable bail. Judges always have the option of holding an
evidentiary hearing, or some variation, if they conclude that it
is warranted by the circumstances in a particular case. See
Querubin, 440 Mass. at 118. We need not require more.
For similar reasons, we also adhere to preponderance of the
evidence as the appropriate standard for bail hearings, even
where the court imposes an unaffordable bail. As we have
discussed supra, the evidence available to judges at bail
hearings is typically relatively limited. Under those
circumstances, asking judges to determine whether their
conclusions are supported by clear and convincing evidence,
instead of a preponderance of the evidence, is not realistic and
would not improve the fact-finding process.
d. Differences between bail determinations under G. L.
c. 276, §§ 57 and 58, and under G. L. c. 276, § 58A. i.
Whether § 58A prohibits setting unaffordable bail to assure a
defendant's appearance. We now turn to the single justice's
second Brangan question, concerning differences in setting bail
under the bail statutes, G. L. c. 276, §§ 57 and 58, and under
the dangerousness statute, G. L. c. 276, § 58A. We begin with
his particular query as to whether a judge may set a cash bail
that a defendant cannot post under G. L. c. 276, § 58A.
43
Subsection 58A (2), which lists various conditions of
release that a judge may impose, states that "[t]he judicial
officer may not impose a financial condition that results in the
pretrial detention of the person." Subsection 58A (3) further
states:
"A justice may not impose a financial condition under this
section that results in the pretrial detention of the
person. Nothing in this section shall be interpreted as
limiting the imposition of a financial condition upon the
person to reasonably assure his appearance before the
courts."
The defendants contend that, in the context of a § 58A hearing,
these provisions flatly prohibit imposing a bail amount that a
defendant cannot afford to post, resulting in a defendant's
pretrial detention, under any circumstances. We disagree.
We have addressed this issue twice before, in Mendonza, 423
Mass. 771, and in Brangan, 477 Mass. 691. In Mendonza, supra at
774, we interpreted the foregoing provisions in § 58A to mean
that "[t]he judge is precluded from imposing a financial
condition that results in pretrial detention in order to assure
the safety of other persons, although financial conditions
having that effect are not precluded for the purpose of assuring
his appearance before the court." We reached the same
conclusion in Brangan, where we cited legislative history
related to the Federal Bail Reform Act, the model for § 58A,
which stated that the purpose of similar language in 18 U.S.C.
44
§ 3142(c)(2) "is to preclude the sub rosa use of money bond to
detain dangerous defendants," and "its application does not
necessarily require the release of a person who says he is
unable to meet a financial condition of release which the judge
has determined is the only form of conditional release that will
assure the person's future appearance." Brangan, supra at 701
n.15, quoting Sen. Rep. No. 98-225, 98th Cong., 2d Sess. (1984),
reprinted in U.S.C.C.A.N. 3182, 3199 (1994). We also noted
that, based on that legislative history, the Federal courts have
similarly rejected the argument that defendants are necessarily
entitled to an affordable bail under the Federal Bail Reform
Act. See Brangan, supra. See also, e.g., United States v.
Mantecon-Zayas, 949 F.2d 548, 550 (1st Cir. 1991); United States
v. Jessup, 757 F.2d 378, 388 (1st Cir. 1985) (Federal Bail
Reform Act provision stating that "[t]he judicial officer may
not impose a financial condition that results in the pretrial
detention of the person" does not foreclose detention where
defendant cannot afford to post bail amount set by judicial
officer and no other set of conditions is sufficient to
guarantee defendant's appearance).
The Legislature has amended § 58A several times since our
decisions in Mendonza and Brangan, but has not made any changes
to alter or clarify the language at issue here. See St. 2010,
c. 256, § 125; St. 2014, c. 260, §§ 33-38; St. 2014, c. 284,
45
§ 97; St. 2018, c. 69, §§ 174–176; St. 2018, c. 219, § 30. We
therefore conclude that our interpretation of that language is
consistent with the legislative intent, and we see no reason to
depart from that interpretation. See Bellalta v. Zoning Bd. of
Appeals of Brookline, 481 Mass. 372, 383 (2019) ("Where, as
here, the Legislature . . . repeatedly has amended the statute
without changing the language at issue, we presume that it has
adopted the construction of the statute upon which Massachusetts
courts . . . have relied").
ii. Differences in setting bail under G. L. c. 276, §§ 57,
58, and 58A. Considering more generally the single justice's
question about differences in setting bail under G. L. c. 276,
§§ 57 and 58, and under G. L. c. 276, § 58A, there are of course
significant differences among these statutes. Section 58A
establishes a procedure under which the Commonwealth may move
for defendants who have been charged with certain serious
offenses to be detained pretrial, or released on conditions, due
to their dangerousness. The focus of the hearing under § 58A is
therefore on the defendant's dangerousness, see Mendonza, 423
Mass. at 788, and the defendant is appropriately entitled to an
evidentiary hearing at which he "shall be afforded an
opportunity to testify, to present witnesses, to cross–examine
witnesses who appear at the hearing, and to present
information," G. L. c. 276, § 58A (4). Consequently, in
46
contrast with §§ 57 and 58, bail may only be imposed under § 58A
after a full evidentiary hearing. See G. L. c. 276, § 58A (2)
(providing that "upon the motion of the commonwealth, the
judicial officer shall hold a hearing pursuant to subsection
[4]," after which judicial officer may "issue an order that,
pending trial, the individual shall . . . be . . . released on
conditions of release as set forth herein").
But the procedural requirements that we have established
here and in Brangan are equally applicable to bail
determinations under G. L. c. 276, § 58A, because these
requirements are based on the constitutional demands of due
process. Accordingly, in a § 58A hearing where, in addition to
considering the defendant's dangerousness, the judge is
contemplating imposing a bail that a defendant cannot afford to
post to assure the defendant's appearance, the judge should also
provide sufficient information to enable the parties and the
appellate courts to recognize that the judge has undertaken the
analysis required by our holding in Brangan.
Conclusion. We conclude that the delay in providing
counsel to the defendants does not entitle them to release from
pretrial detention under Lavallee. In response to the single
justice's Brangan questions, we hold that a judge should provide
sufficient information to enable the parties and the appellate
courts to recognize that the judge has undertaken the analysis
47
required by our holding in Brangan and its codification in the
bail statutes before imposing a bail that is beyond what a
defendant can reasonably afford. The consolidated cases are
remanded to the single justice for entry of orders denying the
defendants' petitions for relief under G. L. c. 211, § 3, with
regard to the claims that they have asserted under Lavallee.24
So ordered.
24The defendants' appeals from the single justice's denial
of their claims under Brangan are still pending before this
court in other dockets. See note 10, supra.