In an important decision for indigent defendant, the Supreme Judicial Court recently issued an opinion – Commonwealth v. Brangan – holding that a judge must consider a defendant’s ability to pay when setting bail at a bail hearing. The SJC specifically ruled that “in setting the amount of bail, whether under G.L. c.276, §57 or §58, a judge must consider a defendant’s financial resources, but is not required to set bail in an amount the defendant can afford if other relevant considerations weigh more heavily than the defendant’s ability to provide the necessary security for his appearance at trial. Where, based on the judge’s consideration of all the circumstances, including the record of defaults and other factors relevant to the likelihood of the defendant’s appearance for trial, neither alternative nonfinancial conditions nor a bail amount the defendant can afford will adequately assure his appearance for trial, the judge may set bail at a higher amount, but no higher than necessary to ensure the defendant’s appearance for trial…. [W]here it appears that a defendant lacks the financial resources to post the amount of bail set, such that his indigency likely will result in a long-term pretrial detention, the judge must provide written or orally recorded findings of fact and a statement of reasons for the bail decision.”
The background was as follows. In 2014, Brangan was arrested for allegedly robbing a bank while masked. “At the time, [he] was on probation following a prison sentence … for rape of a child and related charges.” On the basis of the armed robbery charge, proceedings were initiated to revoke Brangan’s probation in the rape case. “[A] judge of the Superior Court set bail at $20,000 cash … based on the probation violation notice.” In the armed robbery case, bail was set at $50,000 cash (later reduced to $20,000). “Brangan remained in custody pending his trial.” Over the ensuing three and one-half years, he “followed a long and tortuous path to seek relief from his pretrial detention, filing four successive petitions in the county court pursuant to G.L. c.211, §3.” In the fourth petition, he argued “that the Superior Court judge had failed to give meaningful consideration to his inability to make the [$40,000 aggregate] bail….. The single justice denied the fourth petition, ruling that Brangan’s inability to make a particular bail amount did not render the Superior Court judge’s order a functional denial of bail, and did not establish, without more, that Brangan was entitled to extraordinary relief under … c.211, §3. [Brangan] appealed from the single justice’s order pursuant to S.J.C. Rule 2:21.”
In its decision, the SJC reversed the single justice’s order and remanded the case for a new bail hearing, because “it does not appear that the judge … considered Brangan’s financial resources in setting the bail.” The Court opined that “[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.” The Court noted that G.L. c.276, §57, relating to the setting of bail in the Superior Court, does not require a judge to consider a defendant’s financial resources, although §58 (relating to bail in the District Court, the BMC, and the Juvenile Court) does explicitly require consideration of that factor. In any event, stated the SJC, “[a] Superior Court judge … must … consider a defendant’s financial resources when setting bail” under common law and constitutional principles. “Both the Eighth Amendment … and art. 26 of the Massachusetts Declaration of Rights prohibit excessive bail.” Moreover, a “defendant’s right to an individualized bail determination that takes his or her financial resources into account is … supported by the constitutional principles of due process and equal protection.”
The SJC opined that although “unaffordable bail is [not] unconstitutional per se,” it “is subject to certain due process requirements.” Judges are permitted to set bail at an amount higher than a defendant can pay, “but no higher than necessary to ensure the defendant’s appearance. This conclusion,” stated the Court, “is … supported by our previous decisions upholding the constitutionality of pretrial detention.” For example, “[i]n Mendonza [v. Commonwealth, 423 Mass. 771 (1996),] we upheld the statutory scheme in G.L. c.276, §58A, which … authorize[s] temporary preventive pretrial detention of a defendant charged with certain violent or dangerous crimes due to his or her dangerousness.” Such detention is permissible under federal and state constitutional principles “only ‘in carefully circumscribed circumstances and subject to quite demanding procedures.’ Mendonza  at 790.” “[W]here 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 detention, and the judge’s decision must be evaluated in light of the same due process requirements applicable to such a deprivation of liberty.”
The SJC “discern[ed] three particular areas of concern [regarding Brangan’s inability to post bail], for which [the Court] articulated three corresponding due process standards applicable to such cases. First, 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…. 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.” “Second, where … it appears that the defendant lacks the financial resources to post … bail …, [and that this circumstance] 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 Court noted that “[m]easured against these requirements, the bail order here [was] deficient.” “Third, when a bail order comes before a judge for reconsideration or review and a defendant has been detained due to his inability to post bail, the judge must consider the length of the defendant’s pretrial detention and the equities of the case.”
Whether a defendant is held on a bail that s/he cannot post and therefore remains in custody during the pendency of the case has a significant impact on both the defendant personally, and on his or her case. Jail is an extremely unpleasant place to be. Being held in custody may interrupt a defendant’s schooling, ability to provide for family, ability to see loved ones, and has a myriad of other negative effects. Moreover, a defendant may be more inclined to resolve his or her case rather than take it to trial if held in custody, even if it is a triable case, as resolving the case short of trial may hasten his or her ability to get out of custody. If you or a loved one is charged with a criminal case, it is of the utmost importance that your lawyer make the best bail argument possible to maximize the potential for you to be released on bail so you can fight the case from the outside. Attorney Daniel Cappetta is well versed in the law and will utilize the Brangan decision to the fullest to obtain personal recognizance or affordable bails for all his clients. Call him for a consultation today.