As early as 1641, the colonists recognized that a free society is premised upon the belief that its citizens should be afforded due process of law before they are jailed for a crime for which they have yet to be convicted and sentenced.   The concept of bail was created to balance this right against the threat that the accused would not appear at the appointed time for a court proceeding.  

It is well established that bail cannot be excessive.  However, until the recent case of Brangan vs. Commonwealth, the Supreme Judicial Court of Massachusetts had not addressed the question of whether a judge must consider the financial resources of a defendant when setting bail.  

Brangan, who was indicted for armed robbery, was ultimately imprisoned for three and a half years because he could not get a bail bond originally set at $50,000.00 After several attempts, he got the bail reduced to $20,000.00, but was still unable to afford it.  Brangan argued that he was poverty stricken, and by setting his bail far beyond the amount he could pay, the judge violated his due process rights.  He proposed a $5,000.00 bail bond and offered to wear a GPS tracking bracelet, but the judge rejected this suggestion.

The Massachusetts Supreme Judicial Court agreed with Brangan, holding that a judge must consider an individual defendant’s financial circumstances when setting bail.  A bail figure should not be more than the amount that is reasonable to assure “a particular” defendant will appear for future proceedings.  For this reason, fixed bail schedules based upon the type of offense committed have been deemed to be unconstitutional.

In making the bail determination, the character and trustworthiness of each individual defendant must be considered.  Barring other factors that warrant it, a court should not impose a bail amount that will deprive a poor person of her freedom but let a rich person go free.  As the Court in Brangan stated, “a $250.00 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 (jail) for a homeless person whose entire earthly belongings can be carried in a cart”.

Although the lower court judge stated several factors he considered when setting Brangan’s bail: (1) his prior conviction for child rape, (2) the long sentence he would face if convicted of the armed robbery charge, (3) the fact that he was on probation at the time he allegedly committed the armed robbery, and (4) previous 209A restraining orders, the Supreme Judicial Court (SJC) still found the judge’s bail determination insufficient.  To pass constitutional muster, the SJC held that the lower court judge should have put in writing or on the record how he specifically calculated the bail amount and that he took Brangan’s resources into consideration.  He also should have explained why he rejected Brangan’s proposal of a $5,000.00 bail bond with the GPS tracker.  

This decision clarifies that a judge must take account of a person’s financial means when setting bail.  However, the Massachusetts high court made it clear that this is not the same as making bail affordable.  Bail that is unaffordable is not necessarily excessive or unconstitutional nor is there a right to be released on bail prior to trial.  This case stands for the proposition that all things being equal, money should not be the determining factor as to when someone’s freedom is taken away. 

Carter DeYoung Attorneys At Law Cape Cod