Bail sentencing that does not consider the financial ability of the defendant is unjust. “More than 60% across the country have not been convicted of any crime; “9 in 10 of those people are” detained solely for their inability to make bail. Cherise Fanno Burdeen, The Dangerous Domino Effect of Not Making Bail, The Atlantic (April 12, 2016). Massachusetts has long been active in incarcerating people merely for their inability to make bail, thus advocates for bail reform were excited when on August 25, 2017, the Massachusetts Supreme Judicial Court ruled in Brangan v. Commonwealth that judges must consider a defendant’s financial ability before setting a bail amount. Brangan v. Commonwealth, 80 N.E.3d 949, 954 (Mass. 2017) (concluding “that  in setting the amount of bail, whether under M. G. L. c. 276, § 57 or § 58, a judge must consider a defendant’s financial resources”). Many were hopeful that the Brangan decision would be an important step forward in the fight to end the practice of incarcerating poor people pretrial merely because of their inability to make bail. Northeastern University School of Law’s Professor Daniel Medwed wrote: “Brangan should affect the lives of thousands of criminal defendants and save the state millions of dollars.” Daniel S. Medwed, Bail Reform and the Legacy of Justice Geraldine Hines, WGBH News (Aug. 28, 2017). Nearly three months after the decision came down, has bail sentencing changed in Massachusetts?

The decision had some very inspiring language for those who feel as though cash bail should be eliminated altogether, which is a movement growing across the country. Bryce Covert, America is Waking Up to the Injustice of Cash Bail, The Nation (Oct. 19, 2017). “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,” wrote Justice Hines. Brangan, 80 N.E. 3d at 959. However, Justice Hines continues, stating, “(b)ail that is beyond a defendant’s reach is not prohibited. Where, based on the judge’s consideration of all the relevant circumstances, neither alternative nonfinancial conditions nor an amount the defendant can afford will adequately assure his appearance for trial, it is permissible to set bail at a higher amount, but no higher than necessary to ensure the defendant’s appearance.” Id. at 960. According to preliminary research, Court Watch Program efforts from the Massachusetts Bail Fund, and some Public Records Requests from Sheriff’s Departments across the Commonwealth, judges are using Justice Hines’ language as a crutch to set high bail and incarcerate people pretrial. Therefore, although Brangan states that the purpose of bail is to assure appearance at later court dates, excessively high bail is still putting people in jail due to inability to pay.

If students wish to move forward in their careers respecting the fundamental rights of life, liberty, and property, they must know that it is on the attorneys to ensure they are preserved. Massachusetts Bail Fund has found that some judges setting bail have never even heard of the Brangan decision. Massachusetts Bail Fund, CJ Omnibus Bill Moves to MA House: Our Response (Nov. 13, 2017). Others, like Justice Christopher Donnelly Welch, First Justice in the Falmouth District Court, through “Addendum” to the bail factors, have made the decision to set high bail for any person charged with selling or distributing heroin, clearly ignoring the standard set by Brangan to assess each individual’s financial ability. Haven Orecchio-Egresitz, Falmouth Judge: Opiod Dealing Merits Homicide-Level Bail, Cape Cod Times (Sept. 22, 2017, 12:37 PM). It is up to aspiring and current lawyers, both defense counsel appointed to indigent defendants as well as attorneys for the Commonwealth, while making their arguments at arraignments to ensure that judges know and are using the standards required by Brangan when setting bail.

Without attorneys protecting against this miscarriage of justice at the outset of cases, there is the chance that our relatively progressive bail statute may fall to constitutional infirmity and the potentially landmark Brangan decision will fade into oblivion. Bail is supposed to be a mechanism to ensure the defendant returns to court, not punish the poor. As such, judges should use bail appropriately, but they will not be compelled to do so unless we hold them accountable.