fb-pixelJudges must set cash bails that defendants can afford, SJC rules - The Boston Globe Skip to main content

Judges must set cash bails that defendants can afford, SJC rules

The Supreme Judicial Court has instructed judges to set bail at levels that defendants can pay in order to keep faith with legal principles laid out some 375 years ago.Jonathan Wiggs/Globe staff/File 2016

“No mans person shall be restrained or imprisoned by any Authority whatsoever, before the law hath sentenced him thereto, If he can put in sufficient securitie, bayle or mainprise, for his appearance, and good behaviour in the meane time, unlesse it be in Crimes Capital, and Contempts in open Court, and in such cases where some expresse act of Court doth allow it.”

Body of Liberties (1641)

Saying a pauper’s freedom should be protected with the same fervor afforded a plutocrat, the state’s high court Friday instructed judges to set bail at levels that defendants can pay in order to keep faith with legal principles laid out some 375 years ago.


In a unanimous ruling aimed at reorienting bail decisions toward their historic purpose, the Supreme Judicial Court reminded judges that the goal of cash bail is to assure people show up in court and is not supposed to be used to remove dangerous or nettlesome people from society.

By ignoring whether a defendant can actually come up with the hundreds or thousands of dollars in cash for bail that would keep them out of a jail cell, judges are venturing too close to violating the due process rights of financially challenged defendants, the court found.

“A bail that is set without any regard to whether a defendant is a pauper or a plutocrat runs the risk of being excessive and unfair,” Justice Geraldine S. Hines wrote for the court.

Hines, who retired this month, added: “A $250 cash bail will have little impact on the well-to-do, for whom it is less than the cost of a night’s stay in a downtown Boston hotel, but it will probably result in detention for a homeless person whose entire earthly belongings can be carried in a cart.”

While including the first known written criminal code for Massachusetts — the Body of Liberties — in its ruling, the SJC also indicated that the ruling is part of a national movement to reconsider policies that lead to the pretrial detention of the poor because of a historic reliance on cash bail.


On the national level, US Senators Kamala D. Harris and Rand Paul — a Democrat and a Republican respectively — have introduced legislation aimed at spurring states to shift toward individualized bail decisions that minimize the role of money.

In the SJC’s decision, the court cited research in a footnote that shows “pretrial detention disproportionately affects ethnic and racial minority groups” and “disrupts a defendant’s employment and family relationships” with potentially tragic results.

The court made it clear that judges do have the power to order pretrial detention of defendants under the state’s dangerousness statute that was enacted in 1994 as a way to protect domestic violence victims from their abusers, who often posted bail before attacking their victims anew.

And, the court noted, judges still set high cash bails based on a defendant’s prior criminal history, whether they showed up in court in earlier cases, whether they pose a risk of flight, and whether they pose a threat to the public.

However, the dollar value of the cash bail must still be affordable, the court ruled. The SJC notified judges that they must now provide their reasoning for bail amounts that are beyond the financial reach of defendants.

“The cost to the defendant is the loss of liberty and all the benefits that ordinarily would accrue to one awaiting a trial to determine his guilt or innocence,’’ Hines wrote. “Release on bail preserves the liberty of the accused until he or she has been afforded the full measure of due process in a criminal trial.’’


The SJC’s decision came in the convoluted case of Jahmal Brangan, who has been held on bail since Jan. 17, 2014, in the Hampden County jail after being indicted on a charge of armed robbery while masked. He also was ordered detained for violating probation imposed after he was convicted on child rape charges, according to the SJC.

Bail was first set at $20,000 cash, then raised to $50,000, keeping Brangan in custody. Since his arrest, Brangan was tried in March 2015 on the armed robbery charge in Hampden Superior Court and convicted — but a judge declared a mistrial because of prosecutorial errors.

The judge kept bail Brangan’s bail at $50,000 cash and refused to lower it three times since, an amount that a single justice of the SJC approved this January. Now, however, Brangan will get yet another chance for cash bail he might be able to afford while prosecutors prepare to try him a second time, the SJC ruled.

The “justification for pretrial detention erodes the longer a defendant has been held,’’ Hines wrote. “In this case, Brangan has been held for more than three and one-half years.”


John R. Ellement can be reached at ellement@globe.com. Follow him on Twitter @JREbosglobe.