A Call for More Focused Advocacy: Setting Bail After Brangan

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by Hon. Peter B. Krupp

Voice of the Judiciary 

Many times a day in a criminal session judges decide whether setting an affordable bail will be sufficient to ensure a defendant will appear for future court dates. I have set or reviewed bail in hundreds of cases. I have rarely set bail with great certainty and almost always have had to decide based on woefully imperfect information.

There are serious risks of getting it wrong. If a defendant flees, justice for a victim may be substantially delayed or denied; releasing a violent or drug addicted defendant may create a risk to public safety; and setting unaffordably high bail for a defendant may have long-term effects on the defendant, even if an acquittal follows. Compounding the problem, bail decisions usually must be made quickly, so they are disproportionately susceptible to explicit and implicit biases; and the popular press does not help, usually reporting bail as a judicial critique on the severity of the crime rather than an individualized assessment of the defendant’s likelihood of appearing on the charges.

Given these challenges, much depends on effective advocacy by lawyers who must marshal relevant facts and information. Enter the Supreme Judicial Court in Brangan v. Commonwealth, 477 Mass. 691 (2017), which trained a fresh spotlight on the reasons for bail. Although it did not purport to change the law, Brangan, at a minimum, collected and clearly articulated the foundational principles underlying bail, re-centering judges and advocates on what matters and what does not. Before addressing the need for more effective and targeted advocacy, however, a quick overview may be useful.

At a defendant’s initial appearance, the Commonwealth may in certain serious cases move under G.L. c. 276, § 58A to detain a defendant without bail as dangerous. A petition for detention under § 58A triggers the right to an evidentiary hearing to decide whether the defendant is dangerous and, if so, whether a combination of financial and nonfinancial terms can reasonably assure the safety of others and the community. If no such conditions are available, the defendant is held without bail.

In the great bulk of cases, the Commonwealth does not or cannot seek detention under § 58A, but asks that bail be set to assure the defendant’s appearance at future court proceedings. The state and federal constitutions prohibit “excessive” bail, that is, bail “‘higher than an amount reasonably calculated to’ . . . assur[e] the presence of the accused at future proceedings.” Brangan, 477 Mass. at 699, quoting Stack v. Boyle, 342 U.S. 1, 5 (1951). When it comes to bail, one size does not fit all. One size does not even fit all people who commit the same crime. Bail decisions require individualization. As the SJC wrote, “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.” Brangan, 477 Mass. at 700. Therefore, the court must determine how much the particular defendant is able to pay, and may set bail “no higher than necessary to ensure the defendant’s appearance.” Id. at 701.

Where no § 58A petition has been filed, “[u]sing unattainable bail to detain a defendant because he is dangerous is improper”; a “judge may not consider a defendant’s alleged dangerousness” in setting the amount of bail, although dangerousness may be considered in setting conditions of release. Id. at 701, 706. Therefore, arguments that a defendant poses a danger to the community, is a threat to public safety or a security risk, has been convicted of rape, failed to register as a sex offender, or had abuse prevention orders issued against him, may be properly advanced in a § 58A hearing, but not for setting the amount of bail, id. at 706-707, at least not unless they reflect directly on the defendant’s likelihood of appearing at future court dates.

A judge must set an affordable bail if it will cause the defendant to appear on future court dates.  A bail greater than what the defendant can reasonably afford, but no higher than necessary to ensure the defendant’s appearance, may only be set if the judge issues “findings of fact and a statement of reasons . . . either in writing or orally on the record.” Id. at 707. A new Superior Court form has been issued for these purposes.

In light of these principles, advocacy must evolve to address the only purpose for setting bail: to ensure the defendant will appear at future court proceedings. Certain factors considered in the bail determination, see G.L. c. 276, § 57, par. 2; G.L. c. 276, § 58, par. 1, bear more directly on the risk of non-appearance (e.g., prior defaults, flight from arrest, strong family ties outside Massachusetts, a strong case against the defendant, a high potential penalty), while others bear less directly (e.g., prior 209A orders, prior convictions, open probation matters).  Myriad other factors are relevant, including a defendant’s work history, medical condition, and age.

A few examples may help illustrate how prosecutors and defense attorneys need to think through the bail issues that apply to their particular defendant:

Ability to Post Bail. If the defendant has access to resources (or not), inform the court. Bring in tax returns, pay stubs, or an affidavit from the defendant’s employer. “The defendant tells me . . .” or “the police believe . . .” are not particularly persuasive. Put together a sworn statement addressing the defendant’s assets, or explaining where the proposed bail money is coming from and what the financial resources are of the people posting bail. What amount of bail has the defendant posted in earlier cases?

Prior Court Experience. If the defendant has previously been on bail, did the defendant default or appear? The Court Activity Record Information printout (“CARI,” formerly known as the “BOP”) does not show what bail was previously set, whether the defendant was able to post bail, the defendant’s history of appearing in court, or the reason for a default; and it is not always accurate or complete. Does the defendant have a record outside the Commonwealth? There is no substitute for getting docket sheets on a defendant’s prior cases from Massachusetts and other jurisdictions. If a prosecutor wants to rely on a defendant’s failure to remove an earlier default for four months, she should come prepared with documents demonstrating the defendant was not being held on another matter at the time.

Mental health/substance abuse. If the defendant has a drug problem or untreated mental health issue, be prepared to address where the defendant will live, or who the defendant will live with, to mitigate the risk that the defendant will not appear for court. How will medication compliance be monitored? Was defendant’s substance abuse problem addressed in earlier cases?

Effective bail advocacy in the Superior Court requires preparation to dig up information about a defendant’s past and present, information that is at least in some measure available to both the prosecution and the defense. This is often difficult and time-consuming and can rarely be done well on the fly. While a defendant has a right to a prompt bail hearing, in some cases counsel should be prepared to postpone a bail hearing so that information important to the bail determination may be gathered.

In this regard, bail presentations frequently suffer from the Committee for Public Counsel Services (and some district attorneys’ offices) acquiescing to bail appeals being prosecuted or defended by stand-in counsel representing the defendant or the Commonwealth in the Superior Court only for the bail appeal. See, e.g., CPCS Assigned Counsel Manual Policies and Procedures, Ch. IV, Part I, Sec. II.C.5 (“Counsel should facilitate the bail appeal procedure . . . [and] whenever possible, . . . represent the client at the hearing. (Emphasis added)). Most bail arguments cannot be assembled in an hour and should not be based on a quick read of the police report or a short interview with the defendant. Continuity of counsel is crucial. Whatever policies deter bar advocates from handling their district or municipal court clients’ bail appeals should be remedied to assure effective representation during this important phase of a criminal case.

Brangan has focused attention on the issue relevant in setting bail. Hopefully its clarity will also improve bail advocacy and cause lawyers on both sides of a case to assemble reliable facts and documents bearing on whether a defendant is likely to appear at future court proceedings.

Judge Peter B. Krupp has served as an Associate Justice of the Superior Court since 2013. He is a member of the Board of Editors of the Boston Bar Journal. 

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