S.899  An Act Relative to Improving the Bail Review Process, sponsored by Senator James Timilty


Currently, any defendant who has been arraigned and denied personal recognizance in the district court may request an immediate bail review in superior court.  The superior court judge then hears the case “do novo”, i.e., no matter how thorough the presentation of the evidence at the district court bail hearing, and no matter how meticulous the fact-finding of the district court judge, the superior court judge can “start from scratch”, hear the same evidence and come to entirely different conclusions.  While the superior court judge can reduce or increase the district court bail or keep it the same, the vast majority of changes in bail are reductions downward.

Furthermore, as many bail reviews occur on the same day as the district court arraignment, the prosecution often does not have adequate opportunity to gather all the information relative to bail.  The superior court prosecutor who presents the Commonwealth’s evidence at the superior court bail review is almost invariably unfamiliar with the case; it takes time to prepare properly for a bail review: to gather the police report and other evidence, contact witnesses, speak to the arresting officer, and contact the prosecutor who handled the case in the district court.

This proposal is modeled on the manner in which the Single Justice of the Supreme Judicial Court conducts bail reviews of superior court bail orders and bail orders in first-degree murder cases.  It changes the current “de novo” review of district court orders of bail to a review by the superior court judge that is limited to clear errors of fact or law or clearly excessive bail.   It also establishes a three-business day window between the district court arraignment and the hearing on the bail review in superior court, to allow the government time to assemble the necessary information.

This bill also closes what appears to be an unintended loophole the pretrial detention law, or so-called dangerousness hearings.  G.L. c.276, S.58A(4) states that the prosecution may initiate a dangerousness hearing by motion "[w]hen a person is held under arrest for" any of the predicate crimes. This provision has the unfortunate effect of precluding dangerousness hearings for defendants who appear before the court never having been arrested (i.e., on straight warrants) or who were arrested, but were released from the police station on bail or personal recognizance.   Many times a defendant who was arrested for one of the predicate crimes, but was released by a bail commissioner or magistrate, will appear at arraignment and, in light of the defendant's record, the court will reconsider the matter and set or raise bail.  What the court cannot do is order that the defendant be detained during the trial process, because the language of the statute precludes a dangerousness hearing for defendants who are not actually "under arrest' when brought before the court.