Walsh v. CommonwealthWalsh v. Commonwealth
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Pretrial Detention. Bail. Constitutional Law, Preventive detention. Due Process of Law, Pretrial detainees.
Civil actions commenced in the Supreme Judicial Court for the county of Suffolk on October 30 and November 7, 2018.
The cases were reported by Lowy, J.
Darren T. Griffis for Mateusz Dymon.
Merritt Schnipper (Robert Hennessy also present) for Joseph Walsh.
Ellyn H. Lazar Moore, Assistant District Attorney, for the Commonwealth.
Shira Diner & Ryan M. Schiff, for Massachusetts Association of Criminal Defense Lawyers, amicus curiae, submitted a brief.
Both defendants then filed petitions in the county court pursuant to
that, despite the good faith efforts of the Committee for Public Counsel Services (CPCS), there was still no counsel willing and available to represent the defendant, id. at 247-248. Lavallee did not create an automatic right to release from pretrial detention for any indigent defendant held more than seven days without counsel, and we decline to create such a right in these cases.
There may be individual cases where, based on all the facts and circumstances of the particular case, a judge determines that it is necessary and appropriate to release an indigent defendant who has been held in pretrial detention without counsel. Our ruling here is not intended to foreclose that possibility. But the defendants in the cases before us have not presented such an individualized argument, and their release now would not serve any remedial purpose in any event.
The defendants also argued in their petitions before the single justice that, when the Superior Court hearing judge set bail in amounts that they could not afford to post, resulting in their long-term detention, he violated the standards for bail determinations set out in Brangan v. Commonwealth, 477 Mass. 691 (2017), and in
established in Brangan when bail is set in an amount that a defendant cannot afford; and (2) what differences, if any, there might be in the requirements for bail determinations under
We reject, however, the defendants’ proposals for additionally requiring a full evidentiary hearing and proof by clear and convincing evidence before a defendant may be held on unaffordable bail. Given the large number of bail hearings that must be conducted under tight time constraints in the Commonwealth‘s courts, and the limited evidence available to judges in bail hearings, these additional procedural requirements are impractical and would unduly interfere with the government‘s interest in the efficient and economical administration of justice. We therefore continue to adhere to the standards that we endorsed in Querubin v. Commonwealth, 440 Mass. 108, 118-120 (2003), where we held that a full-blown evidentiary hearing is not needed or required to determine the amount of bail that will reasonably assure a defendant‘s presence at trial, and that preponderance of the evidence is the appropriate standard of proof. Finally, we hold that, when proceeding under
judge should also meet the same constitutional due process requirements
Background. 1. Assignment of counsel for indigent defendants in Worcester County. CPCS is statutorily responsible for providing defense counsel for eligible defendants who cannot afford to retain their own counsel in criminal proceedings in the Massachusetts State courts. See
In Worcester County, CPCS contracts with Bar Advocates of Worcester County, Inc., to provide private counsel for indigent defendants. The Worcester PDD office and the bar advocate program are responsible for covering arraignment sessions and accepting appointments in criminal cases in the Worcester County courts.
Although the number of bar advocates in Worcester County certified to handle Superior Court cases has not significantly diminished in recent years, these attorneys are taking fewer Superior Court cases than they did in the past.7 As a result, there have been delays in the appointment of counsel, especially in cases where the Commonwealth has moved to detain a defendant under
2. Proceedings below. The charges against the defendants arise
initially arraigned in the Uxbridge Division of the District Court Department on July 27, 2018, where they were represented by bar advocates certified to practice in the District Court, but not in the Superior Court. The Commonwealth moved to have the defendants detained before trial due to their alleged dangerousness, pursuant to
On September 20, 2018, the defendants were arraigned in the Superior Court in Worcester County on grand jury indictments charging them with breaking and entering in the daytime with the intent to commit a felony, putting a person in fear,
On October 5, 2018, counsel for the Commonwealth appeared for the
filed an appearance to represent Walsh on October 1, 2018, that attorney was not present at the October 5 hearing due to a miscommunication about the hearing date. The presiding judge then ordered the appointment of another bar advocate to represent Walsh and the attorney in charge of the Worcester CPCS office to represent Dymon. In response, the CPCS attorney in charge filed a motion to decline acceptance of the appointment and to release Dymon. She stated in the motion that neither she nor any of the other PDD attorneys in the Worcester CPCS office could take his case because they were either at their maximum caseloads or
On October 16, 2018, the defendants, both of whom were represented by new counsel, objected to their
With regard to the Commonwealth‘s motion to hold the defendants in pretrial detention under
The defendants then filed petitions in the county court under
what remedy or remedies are appropriate.”9 The single justice also reported certain legal questions concerning
Discussion. 1. Lavallee claims. In Lavallee, where we addressed issues arising out of a similar shortage of defense counsel in Hampden County in 2004, we established a protocol to protect the rights of indigent defendants when a lack of
available defense attorneys interferes with the prompt appointment of counsel. We ordered the clerk-magistrates of the Superior Court in Hampden County and the Hampden County divisions of the District Court to compile a weekly list of all unrepresented criminal defendants and forward it to the RAJs for the Superior Court and the District Court divisions, the district attorney, the Attorney General, and the chief counsel for CPCS. We then provided that the Superior Court RAJ should schedule a prompt status hearing for each unrepresented defendant who had been held for more than seven days, or whose case had been pending for more than forty-five days. If the defendant was still unrepresented as of the time of the hearing, and if the Superior Court RAJ determined that CPCS had made a good faith effort to secure representation and that no counsel was willing and available to represent a defendant, then the Superior Court RAJ was required to order (1) release on personal recognizance of any defendant held in lieu of bail or on preventive detention for more than seven days, subject to probationary conditions under
than forty-five days without counsel, unless a judge had declared an intention to impose no sentence of incarceration pursuant to
The defendants in the present cases urge us to extend Lavallee by adopting a universal rule that (a) any indigent defendants who are detained pending a
We recognize that Lavallee, 442 Mass. at 246, established a presumptive seven-day limit on the pretrial detention of an unrepresented indigent defendant, and a presumptive forty-five-day limit on the pendency of charges against an unrepresented indigent defendant. But there were sound reasons why the protocol we established in Lavallee did not directly authorize trial judges to automatically release unrepresented indigent defendants on the basis of those standards. We noted in our opinion that we shared the district attorney‘s concern about releasing or dismissing cases against persons who were charged
with serious offenses, see id. at 244-245, and observed that it was “[o]ur duty . . . to remedy an ongoing violation of a fundamental constitutional right to counsel consistently with the government‘s legitimate right to protect the public‘s safety,” id. at 246.
Toward that end, the Lavallee protocol broadly disseminated information about unrepresented defendants, allowed additional time to secure counsel for them before they were released or their charges were dismissed, and authorized the Superior Court RAJ to impose probationary conditions on defendants without their consent if they were released from pretrial detention. By requiring the clerk-magistrates to send lists of unrepresented defendants to the district attorney, Attorney General, chief counsel for CPCS, and the RAJs, we created a system for tracking the impact of the shortage of defense counsel and ensured that officials with significant oversight responsibility in the criminal justice system were aware of the problem and could take appropriate steps to correct it or mitigate its effects. By providing a status hearing before the Superior Court RAJ, we created a final opportunity for
dismiss charges against them, we ensured that those decisions would be made with consistency and with knowledge of their collective impact on the criminal justice system. And by granting the Superior Court RAJ, as part of the Lavallee protocol, the extraordinary power to impose probationary conditions on defendants without their consent if they were released from pretrial detention, we enabled the RAJ to take steps to supervise their release.
The Lavallee protocol thus promoted a systemic, coordinated response to the shortage of defense counsel that could appropriately balance the rights of indigent defendants with the protection of public safety. The benefits of the Lavallee protocol would be lost if we required trial court judges in all cases to release any indigent defendant who has been detained without counsel for more than seven days, or to dismiss the charges against any indigent defendant who has been unrepresented for more than forty-five days. We also note that we have now adopted a procedure for promptly determining whether invocation of the Lavallee protocol is necessary when a substantial number of indigent defendants are unrepresented due to a shortage of defense counsel. See Carrasquillo v. Hampden County Dist. Courts, 484 Mass. 367, 389-391 (2020).
Our ruling here is not intended to prevent judges from deciding in an individual case, based on all the facts and
circumstances of that case, that it is necessary and appropriate to release an indigent defendant who has been held in pretrial detention without counsel, or to dismiss the charges without prejudice against an indigent defendant who has been unrepresented. In an individual case, the lapse of the time limits we established in Lavallee is a significant factor to be considered by the judge, but it does not automatically entitle the defendant to release or dismissal of charges. See Carrasquillo, 484 Mass. at 391 & n.31.
In the cases before us, however, the defendants have not argued for their release based on particular aspects of their situations apart from their proposed general rule that unrepresented indigent defendants should be automatically released from pretrial detention if they are held without counsel for more than seven days. Moreover, no remedial purpose would be served by ordering their release now.
consequently “virtually powerless to obtain a lawyer on their own or to begin working on their own defense,” id. at 236. Here, in contrast with the petitioning defendants in Lavallee, see id. at 230, 232, the defendants were represented at their
2. Brangan questions. In Brangan, 477 Mass. at 697-700, we held that a judge must consider a defendant‘s financial resources as a factor when setting a bail amount. We further concluded that, although setting unaffordable bail is not necessarily unconstitutional, see id. at 700-702, “where a judge sets bail in an amount so far beyond a defendant‘s ability to pay that it is likely to result in long-term pretrial detention, it is the functional equivalent of an order for pretrial
detention, and the judge‘s decision must be evaluated in light of the same due process requirements applicable to such a deprivation of liberty,” id. at 705. Among other requirements, we held that,
“where, based on a defendant‘s credible representations and any other evidence before the judge, it appears that the defendant lacks the financial resources to post the amount of bail set by the judge, such that it will likely result in the defendant‘s long-term pretrial detention, the judge must provide findings of fact and a statement of reasons for the bail decision, either in writing or orally on the record. The statement
must confirm the judge‘s consideration of the defendant‘s financial resources, explain how the bail amount was calculated, and state why, notwithstanding the fact that the bail amount will likely result in the defendant‘s detention, the defendant‘s risk of flight is so great that no alternative, less restrictive financial or nonfinancial conditions will suffice to assure his or her presence at future court proceedings.” (Footnotes omitted.)
Here, the single justice posed the following questions seeking further guidance concerning the findings of fact and statement of reasons required by Brangan:
- “Can, and should, the full court provide any further guidance, beyond what it has already said in Brangan, for trial court judges, the bar, and single justices of this court as to the level of analysis and detail that must be reflected in the judge‘s statement when a judge sets an unaffordable cash bail? Must the judge itemize the defendant‘s resources, articulate a detailed factor-by-factor analysis as to why the amount of the bail is nevertheless appropriate, and specify each less restrictive alternative that has been considered and why each has been rejected -- or is it sufficient that the judge‘s statement indicates in a more general way the judge‘s consideration of the relevant factors and the animating rationale for his
or her determination? In short, what level of detail is required for the statement?”
- “What differences, if any, might there be in the requirement for a judge‘s bail determination (and the statement of reasons he or she must provide) under
G. L. c. 276, §§ 57 and58 , as was the case in Brangan, and a bail determination made in the context of a dangerousness hearing pursuant toG. L. c. 276, § 58A , as we have here? For example, may a judge set a cash bail that a defendant cannot post underG. L. c. 276, § 58A (3) ?”
a. Application of procedural due process balancing test. The single justice‘s first question concerning “the level of analysis and detail that must be reflected in the judge‘s statement” when setting an unaffordable bail is fundamentally a question about the degree of procedural due process that a defendant must receive.
i. Interests of the defendant. Whenever bail is set in an amount that a defendant cannot afford to post, that defendant faces a total deprivation of liberty, a fundamental right, through pretrial detention. See Brangan, 477 Mass. at 702-703, 705. Although this deprivation of liberty is only “temporary” -- until a trial takes place, the defendant pleads guilty, or the
case is dismissed -- it can nevertheless be lengthy. In Brangan, the defendant had been held on bail he could not afford for more than three and one-half years when we issued our decision. See id. at 693. In the present consolidated cases, the defendants have been held on bail since October 16, 2018.
This temporary deprivation of liberty can have severe and long-lasting collateral consequences. The United States Supreme Court has aptly catalogued some of the negative effects of pretrial detention:
“The time spent in jail awaiting trial has a detrimental impact on the individual. It often means loss of a job; it disrupts family life; and it enforces idleness. Most jails offer little or no recreational or rehabilitative programs. The time spent in jail is simply dead time. Moreover, if a defendant is locked up, he is hindered in his ability to gather evidence, contact witnesses, or otherwise prepare his defense. Imposing those consequences on anyone who has not yet been convicted is serious. It is especially unfortunate to impose them on those persons who are ultimately found to be innocent.” (Footnotes omitted.)
Barker v. Wingo, 407 U.S. 514, 532-533 (1972). See Brangan, 477 Mass. at 709 n.23 (“Pretrial detention disrupts a defendant‘s employment and family relationships, with often tragic consequences“).
ii. Risk of erroneous deprivation.
In considering the risk that a bail decision will erroneously deprive a defendant of liberty when it is unnecessary to assure the defendant‘s future appearance in
In theory, the risk that a defendant will be erroneously deprived of liberty in the bail-setting context can take two forms. First, the judge may overestimate the amount of bail that a defendant can reasonably afford. As a result, the judge may set a bail amount that is not necessarily intended to result in pretrial detention, but in fact has that effect. Second, the judge may overestimate the amount of bail that is necessary to reasonably assure a defendant‘s presence at future proceedings, choosing an amount that is more than a defendant can afford when in fact an affordable amount, or other nonfinancial conditions of release, would suffice. But in actual practice in a particular case, it can be difficult to draw these distinctions. And given the discretionary nature of bail decisions and the many factors that judges may consider in reaching those decisions, it is hard to assess in the aggregate whether bail decisions are “correct” or “incorrect” and how often persons are erroneously held on bail.
According to recent Trial Court data for cases arraigned and disposed of in the District Court and Boston Municipal Court during the seventeen months after our decision in Brangan, defendants were released on personal recognizance or with nonfinancial conditions in the overwhelming majority of cases -- 80.2 percent.11 Defendants were held without bail in a very small
is thus relatively small when considered as a percentage of all cases. But it looms larger when considered as a percentage of those cases where bail was set. During the seventeen months after our decision in Brangan, defendants were held on bail in 42.7 percent of the cases where bail was imposed as a condition of release in the District and Boston Municipal Courts.14 If pretrial detention is the outcome in more than two out of every five cases where bail is set, then it appears that too often one of bail‘s purposes -- “preserv[ing] the liberty of the accused” pending trial -- is not being achieved. Brangan, 477 Mass. at 692.
iii. Government interests.
The government has a legitimate and compelling interest in assuring that persons charged with criminal offenses return to court and appear at trial. See Querubin, 440 Mass. at 112-116. The government also has an important interest in ensuring that bail decisions are made efficiently and economically. The volume of bail hearings is enormous. According to Trial Court data, more than 150,000 criminal cases were arraigned and disposed of in the District and Boston Municipal Courts during the seventeen months after our decision in Brangan. Persons were released on bail or held subject to bail in approximately sixteen percent of those cases -- a total of more than 24,000 cases.15 Adopting procedural requirements for bail hearings that are too onerous could wreak havoc with the efficient processing of these cases.
b. Steps to be considered in setting bail.
Taking into account the fundamental liberty interests at stake, the serious collateral consequences of pretrial detention for defendants and their families, and the significant percentage of bail orders that result in pretrial detention, we conclude that some clarification of the necessary procedural protection would be useful to ensure that the due process requirements we established in Brangan are effective. But any procedures we adopt must not unduly burden the efficient and economical administration of justice. Accordingly, we seek
i. Policy of limiting pretrial restrictions on liberty.
As a general principle, decisions about pretrial release and detention should be governed by “the Commonwealth‘s policy of limiting pretrial restrictions on liberty.” Commonwealth v. Perito, 417 Mass. 674, 678 (1994). “[D]efendants should be burdened with the fewest restrictions on their pretrial liberty that will adequately assure their presence at trial.” Id., quoting Reporters’ Notes to
The policy of limiting pretrial restrictions on liberty is based in part on constitutional principles. Because liberty and freedom from physical restraint are fundamental rights protected by the
ii. Presumption of release on personal recognizance.
In accord with the Commonwealth‘s policy of limiting pretrial restrictions on liberty, the “preferred disposition” under our “detailed general bail statute,”
The presumption that the defendant is entitled to release on personal recognizance without surety may be rebutted, however, by a history of prior court defaults19 or evidence that the defendant poses a flight risk, or the other factors listed in the bail statutes:
“the nature and circumstances of the offense charged, the potential penalty the person faces, the person‘s family ties,
financial resources and financial ability to give bail, employment record and history of mental illness, his [or her] reputation and the length of residence in the community, his [or her] record of convictions, if any, any illegal drug distribution or present drug dependency, any flight to avoid prosecution or fraudulent use of an alias or false identification, any failure to appear at any court proceeding to answer to an offense, whether the person is on bail pending adjudication of a prior charge, whether the acts alleged involve abuse . . . , whether the person has any history of [abuse prevention] orders issued against him [or her] . . . , whether he [or she] is on probation,
parole, or other release pending completion of sentence for any conviction, and whether he [or she] is on release pending sentence or appeal for any conviction.”
iii. Nonfinancial conditions of release.
If the Commonwealth rebuts the presumption of release on personal recognizance, the judge should consider whether there are nonfinancial conditions of release that will adequately assure the defendant‘s appearance before the court. As we noted in Brangan, 477 Mass. at 709 n.23, “[r]esearch indicates that alternatives to cash bail and secured bonds, such as unsecured bonds, pretrial supervision, and court notification systems, may be just as effective in assuring that a defendant appears at future court proceedings.”
The judge may impose nonfinancial conditions of release that are related to the nature of the charges or the goal of assuring the defendant‘s return to court, or both, under
For our purposes here, it is particularly important to note that the Legislature has established several nonfinancial alternatives to bail. For example, the court may order the defendant to participate
iv. Setting bail.
If the judge determines that nonfinancial conditions of release are inadequate and that bail is necessary to assure the defendant‘s appearance before the court, then the judge must consider the defendant‘s financial resources in setting the amount of bail. See
To the extent possible, the judge should try to determine what amount the defendant can reasonably afford to post. As an initial step, the judge can simply ask the defendant or defense counsel
We recognize that it will often be difficult to ascertain the amount of bail that a defendant can reasonably afford given the limited information available to the court and, in some cases, the possibility that the defendant may have unstated or illegal sources of income. But it is worthwhile for the judge to try to determine this amount, to the extent it is possible, so that the judge will be aware of whether the bail ultimately imposed will likely result in the defendant‘s pretrial detention.
The judge should then determine the amount of bail that is necessary to assure the defendant‘s appearance. This amount may be more than what the defendant can reasonably afford. See
“provide written or orally recorded findings of fact and a statement of reasons as to why, under the relevant circumstances, neither alternative nonfinancial conditions nor a bail amount that the person can afford will reasonably assure his or her appearance before the court, and further, must explain how the bail amount was calculated after taking the person‘s financial resources into account and why the commonwealth‘s interest in bail or a financial obligation outweighs the potential adverse impact on the person, their immediate family or dependents resulting from pretrial detention.”
(judge‘s findings and
c. Other proposed procedural protections.
The defendants further propose that we should adopt additional procedural protections before a court can impose an unaffordable bail on a defendant. They argue that we should require a full evidentiary hearing, at which the defendant has the right to testify, to present witnesses, and to cross-examine witnesses, as is required when the Commonwealth moves to have a defendant held for dangerousness under
In Querubin, where we considered the due process requirements that should apply when a defendant is held without bail due to a risk of flight, we adopted due process standards that conflict with the defendants’ proposals. We concluded that a “full-blown evidentiary hearing that includes the right to present and cross-examine witnesses is not needed or required” for a bail proceeding, even where the defendant is held without bail, although “such a hearing, or some variation, may be held in the discretion of the judge when the circumstances of a particular case warrant.” Querubin, 440 Mass. at 118. We also held that preponderance of the evidence is the appropriate standard for determining whether a defendant poses a flight risk and whether any condition or combination of conditions will reasonably assure the defendant‘s appearance, following Federal decisions under the
“Adherence to the principle of stare decisis provides continuity and predictability in the law . . . .” Commonwealth v. Ruiz, 480 Mass. 683, 694 (2018), quoting Stonehill College v. Massachusetts Comm‘n Against Discrimination, 441 Mass. 549, 562, cert. denied sub nom. Wilfret Bros. Realty Co. v. Massachusetts Comm‘n Against Discrimination, 543 U.S. 979 (2004). We acknowledge that “the principle is not absolute,” Ruiz, supra, quoting Stonehill College, supra, and that “[t]he force of stare decisis is at its nadir in cases concerning procedural rules that implicate fundamental constitutional provisions,” Doe, Sex Offender Registry Bd. No. 380316 v. Sex Offender Registry Bd., 473 Mass. 297, 301 (2015), quoting Alleyne v. United States, 570 U.S. 99, 116 n.5 (2013). But neither should we upset settled law unless “the benefits of so doing outweigh the values underlying stare decisis.” Ruiz, supra at 694-695, quoting Stonehill College, supra. Here, we conclude that the benefits of adopting the additional procedural protections proposed by the defendants are insufficient to outweigh the values underlying stare decisis.
Given the nature of the evidence that is typically presented at a bail hearing, and existing procedural protections, requiring a full evidentiary hearing in every single case where the court is contemplating imposing a bail that the defendant may be unable to afford would not add a significant benefit. As we observed in Querubin, 440 Mass. at 118, in most bail proceedings,
“[t]he necessary determination can be adequately presented and decided based on documents (e.g., police reports, witness statements, letters from employers and others, and probation records) and the representations of counsel.”
The time constraints on bail hearings would make it impractical to require a full-blown evidentiary hearing, comparable to that required under
For similar reasons, we also adhere to preponderance of the evidence as the appropriate standard for bail hearings, even where the court imposes an unaffordable bail. As we have discussed supra, the evidence available to judges at bail hearings is typically relatively limited. Under those circumstances, asking judges to determine whether their conclusions are supported by clear and convincing evidence, instead of a preponderance of the evidence, is not realistic and would not improve the fact-finding process.
d. Differences between bail determinations under G. L. c. 276, §§ 57 and 58 , and under G. L. c. 276, § 58A .
i. Whether § 58A prohibits setting unaffordable bail to assure a defendant‘s appearance.
We now turn to the single justice‘s second Brangan question, concerning differences in setting bail under the bail statutes,
Subsection 58A (2), which lists various conditions of release that a judge may impose, states that “[t]he judicial officer may not impose a financial condition that results in the pretrial detention of the person.” Subsection 58A (3) further states:
“A justice may not impose a financial condition under this section that results in the pretrial detention of the person. Nothing in this section shall be interpreted as limiting the imposition of a financial condition upon the person to reasonably assure his appearance before the courts.”
The defendants contend that, in the context of a § 58A hearing, these provisions flatly prohibit imposing a bail amount that a defendant cannot afford to post, resulting in a defendant‘s pretrial detention, under any circumstances. We disagree.
We have addressed this issue twice before, in Mendonza, 423 Mass. 771, and in Brangan, 477 Mass. 691. In Mendonza, supra at 774, we interpreted the foregoing provisions in § 58A to mean that “[t]he judge is precluded from imposing a financial condition that results in pretrial detention in order to assure the safety of other persons, although financial conditions having that effect are not precluded for the purpose of assuring his appearance before the court.” We reached the same conclusion in Brangan, where we cited legislative history related to the
The Legislature has amended § 58A several times since our decisions in Mendonza and Brangan, but has not made any changes to alter or clarify the language at issue here. See St. 2010, c. 256, § 125; St. 2014, c. 260, §§ 33-38; St. 2014, c. 284, § 97; St. 2018, c. 69, §§ 174-176; St. 2018, c. 219, § 30. We therefore conclude that our interpretation of that language is consistent with the legislative intent, and we see no reason to depart from that interpretation. See Bellalta v. Zoning Bd. of Appeals of Brookline, 481 Mass. 372, 383 (2019) (“Where, as here, the Legislature . . . repeatedly has amended the statute without changing the language at issue, we presume that it has adopted the construction of the statute upon which Massachusetts courts . . . have relied“).
ii. Differences in setting bail under G. L. c. 276, §§ 57 , 58 , and 58A .
Considering more generally the single justice‘s question about differences in setting bail under
But the procedural requirements that we have established here and in Brangan are equally applicable to bail determinations under
Conclusion.
We conclude that the delay in providing counsel to the defendants does not entitle them to release from pretrial detention under Lavallee. In response to the single justice‘s Brangan questions, we hold that a judge should provide sufficient information to enable the parties and the appellate courts to recognize that the judge has undertaken the analysis required by our holding in Brangan and its codification in the bail statutes before imposing a bail that is beyond what a defendant can reasonably afford. The consolidated cases are remanded to the single justice for entry of orders denying the defendants’ petitions for relief under
So ordered.
Notes
“Taking into account the presumption of recognizance that has been rebutted in this case and the conditions of bail that I will impose, I will impose a bail of $_____ cash. After a review of the defendant intake sheet and the proffer of the defendant through counsel and the argument of counsel, I find that the defendant cannot reasonably afford to make that bail. Recognizing that the defendant‘s financial ability to make bail and the defendant‘s financial conditions are factors I must consider in setting bail based on the nature and circumstances of this charge of indecent assault and battery on a child under fourteen, and the defendant‘s alleged attempts to coerce and manipulate this alleged victim not to disclose the defendant‘s alleged misconduct, the fact that the defendant has eight appearance defaults on six separate charges, his violations of chapter 209A restraining orders, which like a posted bail, are orders of the court, the strength of the Commonwealth‘s case, and that the defendant has numerous other prior convictions, including an escape, and convictions for drug distribution, I find that the need for this bail amount exceeds the adverse impact on the defendant and his family.”