What is the purpose of bail? Judges, lawyers weigh in September 28, 2019
Norman Miller 508-626-3823 Metrowest Daily News
Someone who is likely to face a lengthy prison sentence may need more financial enticement to come back to court than they would if the case is weak, retired Judge Douglas Stoddart said.

Each and every day in most court houses across the state, those accused of committing crimes stand before a judge while their lawyers and prosecutors argue whether bail should be set.

The purpose of bail is simple, but several people connected to the court system say it is often understood.

"The purpose of bail is to simply insure someone returns to court," said Bridget Bradley, a Framingham-based defense lawyer. "It's not to punish someone. It's not a way to hold them in jail until the case is over."

When deciding bail, judges consider many factors, Marlborough District Court Judge Michael Fabbri said. Every defendant - except those charged with murder - has the presumption of personal recognizance, or being released without bail.

But several factors, Fabbri said, can lead a judge to set bail for a defendant.

"We have to look at if this person is going to come back to court on the next date and the balance of (court) dates to continue this case," said Fabbri, a former prosecutor for the Middlesex District Attorney's Office.

"We look at the facts and seriousness of these crimes. We look at the criminal records - not so much to see if they have prior convictions, but when they were charged, did they come to court? Did they have many defaults (skipping court hearings)? Did they violate court orders? Did they violate probation? Do they have open cases? Those kind of indicators can show if they will come back to court or they won't." Want news like this sent straight to your inbox? Head over to MetroWestDailyNews.com to sign up for alerts and make sure you never miss a thing. You pick the news you want, we deliver.

Another factor judges will consider is the likelihood that the defendant will be convicted. Someone who is likely to face a lengthy prison sentence may need more financial enticement to come back to court than they would if the case is weak, retired Framingham and Natick District Court Judge Douglas Stoddart said.

"That's why I would always review the police report to see if the charge was legitimate or if it was a stretch," said Stoddart, who now practices civil and criminal law from Natick. "If it's a weaker case, the bail may be less."

Just as important - and part of case law - is to consider a defendant's ability to make a bail. The amount of bail set may be different for different defendants with similar criminal histories and can be vastly different based on someone's ability to post bail.

In Middlesex County, District Attorney Marian Ryan installed a new bail process about 15 months ago. When someone is facing low-level, non-violent offenses, prosecutors now won't or will rarely request a judge to hold that person on bail.

She said when the policy initially went into place, there was about a 1% increase in people skipping court hearings, but it has since leveled to pre-trial levels.

"Someone who has an enormous amount of resources, posting $1,000 may not be difficult for them," said Ryan. "But then you have other people who could never make that amount of bail.

"The impact of bail can be three-fold. It may cause someone to lose their employment. They may lose their housing. They could even lose children. This allows people, while the case is going on, to keep going on with life."

Although the person's ability to make bail has to be considered, Stoddart said that does not exempt people who are poor from having bail set. As a judge, Stoddart would try to work with a defendant to figure out a way to get them to come back to court.

"Two or three times, I took jewelry, or things that seemed to have value, as bail," said Stoddart. "Bail gets stuck in that legal quagmire where a person is presumed innocent, but you would prefer if they return to court."

There are other ways, other than bail, to hold someone if prosecutors think a defendant could be dangerous. Prosecutors can request a 58A hearing, more commonly known as a dangerousness hearing. During such a hearing, the prosecutor presents evidence to show what they believe is proof that a defendant be held without bail for as long as 120 days. If the case is not resolved in 120 days, bail can still be argued.

Bradley said defense attorneys and prosecutors have a different "perspective" on bail. She said prosecutors will often request bail in domestic assault and battery cases even if someone comes to court on their own.

"There are many occasions where people show up - they're either summoned or they're released from the police department - and the commonwealth still asks for bail," said Bradley. "(The defendants) just proved they'll show up without bail. It's counter-productive. If they demonstrate that they'll show up to court, it really shouldn't matter the seriousness of the crime."

In lieu of bail, judges can set conditions. Those can include banning someone from drinking alcohol or ordering drug tests. They can also order house arrest or other conditions, such as a GPS monitoring bracelet or to attend counseling.

"The conditions are going to help make sure the person will show up to court, or remember to show up to court," said Fabbri. "I think some people misunderstand bail as a form of punishment. Judges do not. We can't."  

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