Understanding Bail and Dangerousness Hearings in Massachusetts

When facing criminal charges in Massachusetts, one of the first concerns is whether you or your loved one will be released before trial. Massachusetts law provides two primary processes that determine pretrial release: bail under M.G.L. c. 276, § 58 and dangerousness hearings under M.G.L. c. 276, § 58A. The case Commonwealth v. Brangan also plays a crucial role in shaping bail decisions. Below, we break down these important legal processes.

How Bail Works in Massachusetts (M.G.L. c. 276, § 58)

Bail is the process by which a defendant may be released from custody while awaiting trial. In Massachusetts, under M.G.L. c. 276, § 58, a judge or bail magistrate will consider several factors in deciding whether to set bail and in what amount. These factors include:

  • The nature and circumstances of the offense

  • The defendant’s criminal history

  • The defendant’s history of failing to appear in court

  • The defendant’s ties to the community (e.g., employment, family, residency)

  • Any risk of flight

Personal Recognizance vs. Cash Bail

  • Personal Recognizance: If the court determines that the defendant is not a flight risk and poses no danger to the community, they may be released on their promise to return to court without having to post money.

  • Cash Bail: If the court believes there is a risk the defendant will not return to court, bail may be set at a specific monetary amount.

Bail Review Hearings

If bail is set too high, the defendant has the right to request a bail review hearing in Superior Court, where a judge can reconsider the amount and conditions.

Dangerousness Hearings (M.G.L. c. 276, § 58A)

For certain serious offenses, the prosecution may request a dangerousness hearing under M.G.L. c. 276, § 58A to seek the defendant’s detention without bail. Unlike regular bail determinations, a dangerousness hearing focuses on whether the defendant poses a substantial risk of harm to the community.

Key Features of a Dangerousness Hearing:

  • The hearing must be held within three to seven days after the request.

  • The prosecution must present clear and convincing evidence that no conditions of release can reasonably assure the safety of others.

  • The defense can present evidence, cross-examine witnesses, and argue for the defendant’s release under strict conditions.

  • If found dangerous, the defendant may be held for up to 120 days without bail in the District Courts and up to 180 days in Superior Court, subject to extensions.

Crimes That May Trigger a Dangerousness Hearing

  • Violent felonies (e.g., any crime that involves force as an element, such as murder, armed robbery, assault and battery with a dangerous weapon)

  • Certain Enumerated Sex Offenses

  • Certain Enumerated Domestic violence-related offenses

  • Certain Enumerated Crimes involving firearms

The Impact of Commonwealth v. Brangan on Bail Decisions

In Commonwealth v. Brangan (2017), the Massachusetts Supreme Judicial Court ruled that a judge must consider a defendant’s ability to pay when setting bail. This case established that:

  • Bail should not be used as a means to detain defendants solely because they cannot afford to pay.

  • If bail is set beyond what a defendant can afford, the judge must explain in writing why no other conditions of release would ensure the defendant’s appearance in court.

  • Judges must consider non-monetary conditions, such as GPS monitoring, curfews, or reporting requirements, before imposing high bail.

Conclusion

Understanding how bail and dangerousness hearings work in Massachusetts is essential if you or a loved one is facing criminal charges. Bail decisions can have significant consequences on a defendant’s ability to prepare for trial, maintain employment, and care for their family. If you need legal assistance, consulting with an experienced criminal defense attorney can help ensure that your rights are protected and that you receive the best possible outcome in your case.

For a consultation on your case, contact Benzaken, Maguire, Sheehan, and Wood, LLP today.