Questions of Bail; Dangerousness Hearings

When a person is charged with a crime in Massachusetts, there is an initial court appearance called an arraignment. The arraignment usually occurs in district court (even if the charges will ultimately be prosecuted in superior court, where the more serious cases are litigated). The defendant has the right to be represented by an attorney and if the defendant is indigent, the judge will consider appointing a public defender. The purpose of an arraignment is to inform the defendant of the crimes that are being charged by the Commonwealth. A plea of not guilty is automatically entered on behalf of the defendant. After the reading of the complaint, the judge will ask the prosecutor if there is a question of bail – the judge wants to know if the Commonwealth is requesting cash bail, conditions of release, or detention.

Personal recognizance is the term used when a defendant is released without having to post cash bail. The judge orders the defendant to return to court on a future date and warns the defendant that failure to appear at subsequent court hearings will result in a default warrant. In Massachusetts, there is a presumption of personal recognizance, which means unless there are specific justifications for holding someone on cash bail (or holding someone without bail), a defendant should be released.

Cash bail can be imposed by a judge only as an incentive to compel a defendant to return to court. It is not supposed to be imposed as a penalty, as the defendant is presumed to be innocent at the arraignment. The theory is that if a defendant posts cash bail, he will be more likely to return to court because if he fails to return to court, the money will be forfeited. In Massachusetts, the entire bail amount is returned to the defendant (or the “surety” – the person who posted the bail on the defendant’s behalf) at the end of the case as long as the defendant has not skipped out on any court dates. Judges are supposed to consider a number of factors in determining whether a defendant will return to court, including: the seriousness of the charges and the potential penalties; whether the defendant has ties to the community; and, most importantly, whether the defendant has a good track record of showing up in court on past cases. If a defendant is unhappy with the cash bail imposed by a district court judge, he can appeal to a superior court judge who has discretion to keep the district court bail in place, reduce the district court bail, or increase the district court bail.

Unlike many other states, Massachusetts does not have a bail bond system. In a bail bond system, the bondsman will ordinarily post the bail but take a 10% non-refundable fee. For example, if a judge set bail at $10,000, the bail bondsman would post the bail for a $1,000 fee from the defendant. If the defendant appears in court, at the end of the case the bail bondsman will get his $10,000 back (and keep the $1,000 fee from the defendant). If the defendant defaults, the bondsman loses the $10,000.

Conditions of release can be imposed by a judge either in conjunction with personal recognizance or cash bail. In domestic violence cases, judges often order defendants to have no contact with the alleged victim. In repeat drunk driving cases, judges might order defendants not to drive. And in cases involving illegal drugs, judges sometimes order defendants to refrain from drug use (and in some cases to be randomly tested during the pendency of the case).

What happens if someone is charged with a crime and already has a pending case? The Commonwealth will usually file a motion to revoke the defendant’s bail (or personal recognizance) on the earlier case. If the motion is allowed, the defendant will be held without bail for up to 120 days. In a motion to revoke hearing, the prosecutor is required to prove: (1) the defendant has an open case; (2) there is probable cause to believe a new crime has been committed; and (3) releasing the defendant would endanger the community.

When a defendant allegedly commits a serious crime, the Commonwealth can ask a judge to hold a dangerousness hearing to determine if the defendant should be held without bail. A prosecutor can ask for pretrial detention based on dangerousness when the defendant is charged with most violent felonies or domestic violence crimes. While the defendant is entitled to a hearing, the prosecutor is not required to call witnesses. Instead, the prosecutor usually will submit police reports related to the case along with police reports documenting prior allegations of violence. Judges are required to consider hearsay evidence presented by the prosecutor. The Commonwealth bears the burden of proving, by clear and convincing evidence, that there are no conditions of release that would ensure the safety of the community, and pretrial detention is required.

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