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    Opinion | Ralph D. Gants

    When it comes to setting bail, judges can’t predict the future — or ignore the law

    In setting bail, a judge’s discretion is not clairvoyant, and it is constrained by law.
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    YOU BE THE JUDGE. It is 9 a.m. and you are handling arraignments in a busy district court.

    The first case is a domestic violence assault and battery. The defendant was arrested the previous evening after his girlfriend called 911 and reported that he had punched her in the face and threatened to do worse. The victim had bruises on her face when police arrived, but she now denies the assault and says that she fell in the kitchen. The defendant is the father of her child, and the sole source of financial support for the household. This is the second domestic violence case against the defendant, but the earlier case was dismissed, and the defendant showed up for all the hearings in that case.

    The assistant district attorney does not move for a dangerousness hearing. That means that the law does not permit the judge, in determining the amount of bail, to consider whether the defendant’s release will endanger the safety of the girlfriend or the community. Instead, the judge is permitted to consider only what amount of bail and what pretrial conditions of release will reasonably assure the appearance of the defendant at future hearings in the case, and to impose pretrial conditions that will reasonably protect the safety of the girlfriend and the community. In doing so, the judge is required, both by Supreme Judicial Court case law and by the statute that has codified that case law, to consider the defendant’s ability to pay. The judge may set a bail amount that the defendant cannot afford to pay, but only if the judge finds that a bail amount the defendant can afford, together with any other pretrial conditions, will not adequately assure the defendant’s appearance. The defendant has no appreciable savings, and supports his girlfriend and young son by working two jobs at local fast food restaurants.

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    The judge determines that the defendant can afford to post bail of $200, and that this amount will suffice reasonably to assure the defendant’s appearance. To protect the safety of the girlfriend, the judge imposes pretrial conditions that the defendant wear an electronic GPS bracelet at all times, move out of the home, and stay 100 feet away from his girlfriend pending trial; the GPS will enable the probation service to monitor his compliance with the conditions.

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    The judge’s bail decision complies with the law and is a proper exercise of judicial discretion. But what if the defendant, while on bail release, assaults his girlfriend again, this time doing even more physical harm? Or what if the defendant shoots a police officer who responds to the new domestic violence incident? Does this mean that the judge made a terribly wrong decision? Absolutely not. Judges make decisions based on the information they are given, guided by principles of law established by statutes and case law. They do not have a crystal ball to predict the future. Nor are they allowed to ignore the law.

    It is fair to criticize a judge’s decision when the judge makes an error of law or abuses discretion. But it is not fair to criticize a judge for obeying the law. The prosecutor’s decision in this hypothetical case not to move for a dangerousness hearing prevented the judge from detaining the defendant even if his release would endanger the girlfriend or the community; the law does not permit a judge to order such a hearing without a motion. So criticizing the judge for failing to set bail beyond the defendant’s means because he was dangerous is criticizing the judge for following the law — that is, for being true to the oath the judge took to uphold the constitutions and laws of the United States and the Commonwealth of Massachusetts.

    And if one is going to criticize a judge for an exercise of discretion, criticize based on the information that was before the judge, not with the benefit of perfect 20-20 hindsight. Sit in the judge’s shoes at the time of the hearing, not after all that was unknowable then has become known.

    When a woman is injured or killed in an act of domestic violence, or when a police officer is shot or killed, we all grieve. Every time a judge releases a defendant on bail pending trial, the judge inevitably must bear the risk that the defendant will commit a crime while awaiting trial. But a judge who avoids this risk by detaining everyone pending trial is not obeying the law, not doing justice, and not respecting the presumption of innocence that protects us all.

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    And, by the way, it is now 9:15 a.m. and you, the judge, will make comparable bail decisions in at least 10 more cases this morning.

    Ralph D. Gants is chief justice of the Massachusetts Supreme Judicial Court.