In Josh J., a juvenile v. Commonwealth, the SJC ruled “that where an individual has been released on bail pursuant to G.L. c.276, §58, and there is probable cause to believe the individual committed a crime while released on bail, the Commonwealth may seek to revoke bail under either §58 or §58B.”
The background was as follows. “On May 6, 2016, a delinquency complaint issued charging the juvenile with [two offenses]. A judge in the Juvenile Court set the juvenile’s bail at $1,000…. The juvenile posted bail and was released. In August, 2016, two delinquency complaints issued against the juvenile for several new crimes he allegedly committed while on release on the pending charges…. In November, 2016, based on the new charges, the Commonwealth sought to revoke the juvenile’s bail pursuant to G.L. c.276, §58. A Juvenile Court judge allowed the Commonwealth’s motion, revoked the juvenile’s bail, and set a date for a bail review hearing on January 30, 2017, which amounted to a ninety-day bail revocation. By January 10, 2017, the charges stemming from the juvenile’s conduct while he was released on bail had been resolved. The juvenile continued to be held on the original charges, however, so he moved to vacate the bail revocation order, but the judge who had revoked bail denied that motion. In response, the juvenile filed an emergency petition … pursuant to G.L. c.211, §3.” He “claim[ed] that the judge erred in applying the ninety-day revocation period under … c.276, §58B, as opposed to the sixty-day revocation period under … c.276, §58, after finding probable cause to believe that the juvenile had committed a crime while released on bail under §58. The crux of the juvenile’s argument is that because bail can be revoked under either §58 or §58B, where an individual commits a crime while on release, the statutes create an ambiguous bail revocation framework, and therefore, the rule of lenity requires the application of the sixty-day revocation period under §58.” The single justice reserved and reported the juvenile’s petition to the full SJC.
In its decision, the SJC stated, “To resolve this issue, we begin with the pertinent portions of §58 and §58B. General Laws c.276, §58, sixth par., provides in pertinent part that ‘[i]f a person is on release pending the adjudication of a prior charge, and the [judge] … finds probable cause to believe that the person has committed a crime during said period of release, the [judge] shall then determine, … whether the release of said person will seriously endanger any person or the community [in which case the person may be held without bail for up to sixty days].’” General Laws, c.276, §58B, provides that “‘[a] person who has been released after a hearing pursuant to [§58] … shall be subject to a revocation of release and an order of detention … [if] the judicial officer finds (1) that there is probable cause to believe that the person has committed a … crime while on release, … and (2) the judicial officer finds that there are no conditions of release that will reasonably assure the person will not pose a danger to the safety of any other person or the community; or the person is unlikely to abide by any condition or combination of conditions of release…. A person detained under this subsection … shall not be detained for a period exceeding ninety days.’” The SJC opined that “[t]he plain language of … c.276, §§58 and 58B, is clear and unambiguous, particularly where §58B explicitly includes persons released on bail under §58; an individual who is released on bail pursuant to §58 may have his or her bail revoked under either §58 or §58B where, among other requirements, there is probable cause to believe the individual committed a crime while on release. The Legislature’s decision to provide two bail revocation mechanisms in these circumstances does not create ambiguity…. The Commonwealth’s discretion to seek to revoke bail under either §58 or §58B does not equate to an ambiguous or otherwise impermissible bail revocation.” Therefore, “the rule of lenity does not apply.”
Also in this decision, the SJC rejected the juvenile’s claim “that revoking bail under §58B where an individual has been released on bail pursuant to §58, and subsequently commits a crime while on release, violates due process.” The Court opined that “[t]he dual bail revocation mechanisms established by §§58 and 58B are constitutionally sufficient, in part, because the Commonwealth can move for a sixty-day revocation, with a reduced showing, under §58, or for a ninety-day revocation, with a heightened showing — providing greater procedural protections to prevent erroneous deprivations of liberty — under §58B.”
Whether a defendant’s bail is revoked, and the length of the revocation period, has a significant impact on both the defendant personally, and on his or her case. Being held in custody may interrupt a defendant’s schooling, ability to provide for family, and ability to see loved ones – not to mention the fact that jail is not a pleasant place to be. Additionally, an incarcerated defendant may be more inclined to resolve his or her case with a plea rather than take it to trial because doing so may mean that s/he is released from custody sooner. If you or a loved one is charged with a new criminal case while you are out on bail, it is of the utmost importance that your lawyer make the best argument against bail revocation possible to minimize any chance that you will be held in custody. Attorney Daniel Cappetta has made thousands of successful bail arguments, and arguments against revocation. Call him for a consultation today.