- Massachusetts District Attorney Association
The Commonwealth’s District Attorneys read with interest, and some skepticism, the Aug. 7 opinion piece by the Chief Justice of the Supreme Judicial Court. (“When it comes to setting bail, Judges can’t predict the future – or ignore the law.”)
But the problem is often not judges’ inability to “predict the future,” but judges too-frequent disinterest in taking stock of the past.
This takes many forms. In dozens of district courts each day, an assistant district attorney moves to revoke bail on someone who has been arrested for a new crime while on bail in another case. That prosecutor is not doing so casually, and in many similar cases chooses not to. The prosecutor is doing so after careful review of the defendant’s history, actions, the nature of the new charge, and often a conversation with a supervisor.
Something like half of those requests are denied, sometimes with the legally murky result of the judge not even acting on the motion, as happened with the defendant now charged with murdering a Weymouth police officer and a bystander. The public safety problems we encounter often stem from a failure to properly enforce violations of probation and bail conditions.
When a district court judge does impose substantial bail, defendants routinely seek a bail review hearing with a justice of the superior court. The reason it is routine and not rare is that some judges are frankly quick to slash the thoughtful bail imposed by the arraigning judge even when no new facts or circumstances are offered. The difference from judge to judge is not simply remarkable but jarring – particularly true with justices who never practiced in the district court as defense counsel, prosecutor or jurist before appointment to the superior court bench.
Judges also apply the dangerousness statute inconsistently. On the day that Gants’ piece was printed using a hypothetical example where a prosecutor did not request a dangerousness hearing in a domestic assault, a district court judge within the 617 area code in a real case disregarded the 3-day continuance provided by the statute for the Commonwealth to prepare for such a hearing. Instead, the case – involving allegations of brutal domestic assault – would have its dangerousness hearing at 3 p.m. the same day, giving the prosecutor insufficient time to properly prepare or marshal witnesses.
Dangerousness findings from District Court are also routinely overturned upon Superior Court review. Very recently, a defendant charged as a Felon in Possession of a Firearm with 3 prior convictions – a charge with a 15 year minimum sentence - was held without bail as a danger by the Lawrence District Court. After a bail review in Salem Superior Court, he was put on $7,500 cash and a GPS bracelet, which he promptly cut off. He was in possession of another firearm when re-arrested.
Rule of Criminal Procedure 28 explicitly states that before a judge admits someone to bail, the judge’s probation officer must inquire into the nature of every criminal case and report information to the judge on all prior criminal prosecutions and their disposition unless the defendant was found not guilty. The prosecuting attorney’s request and suggestions, like those of defense, are meant to sway; the judge owns the responsibility of determining bail from beginning to end. Some judges revoke bail without being asked, others may ask the prosecutor if there is to be a motion for dangerousness. There are no rules relegating the judge to be a potted plant.
The new case law, issued by the Gants court, steers judges to consider a defendants’ ability to pay and other factors in setting bail; it does so without providing any meaningful way for court personnel to discern a defendant’s actual ability to pay. Drug traffickers dealing in five- and six-figure cash denominations routinely qualify as indigent when seeking public counsel services because, on paper, they have no assets and no income. Into that broken system, new case law foists the burden of assessing the ability to pay bail. And this so-called Brangan consideration does not eclipse more than a dozen other factors that judges are allowed to look at when setting bail – nor should it.
These kinds of inconsistencies and broken systems are undermining confidence in the court system, causing frustration and fear among victims, and causing disillusionment among those invested in the safety of others. And they begin and end with the presiding judge.
All of the stakeholders are in this together, and what is needed is the exercise of common sense, communication, education and more training for judges if we are to keep the public safe.