Saturday, March 24, 2012


Our justice system is based on the presumption of innocence. With the exception of individuals facing murder, probation detentions or revocation of bail based on a new offense, citizens charged but not yet convicted have the right to a bail amount that is realistic given their economic circumstances. The primary goal of the bail system is not to punish or penalize, but rather to ensure that the accused show up for their court date.  When a criminal defendant is brought into a court of law, many factors go into the decision of whether bail will be set or whether the person will be ordered to return by essentially promising to return (personal recognizance). Although Chapter 276 Section 58 of our General Laws lists the financial resources as a factor a court can take into consideration, it rarely comes into play. Occasionally the prosecutor will ask how much bail can your client make; however when there is a disagreement, the indigent are placed at an extreme disadvantage.  A great example of this occurred last week my client was charged with a serious offense in which his co-defendant’s bail was set at $5,000.  Even though both defendants were charged with the same offense, the prosecutor asked the judge to set bail at $50,000. The dollar amount was basically plucked out of air and had as much thought as if a wheel was spun and the needle landed on that number.  Admittedly, my client was already on probation but both individuals were under 22, had minor records and both had significant ties to the community.   

If our bail system utilized a practice similar to sentencing guidelines in Superior Court, we would have a more uniform and fair system that what now exits. Sentencing guidelines promote fairness and reduce disparity while preserving that degree of judicial discretion necessary to fashion the sentence appropriate for the individual offender and the specific offense. Similar to sentencing guidelines, my proposal would not only factor in a defendant's record and seriousness of crime but would also include a detailed analysis of the individual’s income or net worth. When a person requests a court appointed attorney the probation department takes a financial statement. If our system could extend that analysis when setting bail, we would have a system that is not subjected to random dollar amounts that have no rational basis as to whether a person will return to court. Why should a doctor who is charged with domestic assault & battery and who's bail set at $5,000 not even flinch, when the factory worker who committed the same offense ends up in custody for the duration of the case. Our Massachusetts Declaration of Rights, Article XXVI, declares, no magistrate or court of law shall demand excessive bail or sureties, impose excessive fines, or inflict cruel or unusual punishments. I would suggest any bail is excessive when the financial impact of setting that bail is not taken into consideration.

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