Bail advocacy after Brangan v. Commonwealth - Attorney Steven J. Topazio
HomeBail advocacy after Brangan v. Commonwealth

Bail advocacy after Brangan v. Commonwealth

On August 25, 2017, the Supreme Judicial Court modified the considerations for the imposition of bail in the case of Brangan v. Commonwealth, 477 Mass. 691 (2017). A judge must now consider a defendant’s financial resources and economic standing prior to setting a bail. The case also contributed to the procedures that must be taken if and when a judge grants a bail that is beyond what the defendant can financially pay.

The practice of releasing a defendant on bail prior to trial has been part of Massachusetts law since the beginning of time. There is a presumption of release under the bail statue GL 276 § 58. Dangerousness is not a consideration unless the commonwealth moves for pretrial detention pursuant to G L 276 § 58A. A consequence of pretrial detention is an individual’s loss of stability and being held in jail solely because of his lack of financial resources. Brangan addresses this issue by establishing that the court must consider the financial circumstances of a defendant because now an unaffordable bail triggers strict due-process protection.

“A bail that is set without any regard to whether a defendant is a pauper of a plutocrat runs the risk of being unfair and excessive.” So, to speak, there is not one bail that fits all cases. If a poor man’s bail be the same as a well-to-do individual’s bail for the same crim then we would be holding a poor man in jail unlawfully if he could not post bail.

According to Brangan, in order to determine that a judge has in fact considered the person’s financial resources in determining a bail amount, “the judge must address this issue in writing or orally on the record in every case where bail is set in an amount that is likely to result in a defendant’s long-term pretrial detention because he or she cannot afford it.”

The decision of the court does not alter the presumption of release without cash bail required by G.L. c. 276, § 58. However, if the judge refuses to release the defendant on personal recognizance or set bail in an amount the defendant cannot afford, the new due-process requirements will be triggered.

An unaffordable bail may only be rendered if the judge decides that neither the amount of money available to the defendant or any nonfinancial consideration will adequately assure the defendant’s appearance in court. An unaffordable bail is the “functional equivalent of an order for pretrial detention” and can only be imposed if strict due-process standards are met. Post Brangan, if a court is going to set an unaffordable bail, it must make findings that justify the deprivation of the fundamental right of freedom by:

  •          1  Showing that financial resources were properly considered
  •          2  Explains how the bail amount was calculated
  •          3  Explains why unattainable bail is needed
  •          4  Explains why less restrictive considerations aren’t good enough

All in all, for a pretrial bail to be right and just, it is pertinent that the judge be held accountable in considering the defendant’s financial factors to determine an appropriate bail for a defendant or else due process requirements will be enforced.