Section Review

The Bail Debate and Preserving Principles of Freedom

W. Michael Ryan is a justice with the Northampton District Court.

Massachusetts judges have incurred recent criticism over their bail decisions that has obscured the process and history of pre-trial procedures. In this country, after being publicly accused of wrong in an open courtroom, criminal defendants enjoy the right to be released on their promise to return. This right of the accused to liberty while awaiting trial is a defining feature of a people ruled by law.

Consider the alternative. To incarcerate citizens on naked accusations of government agents is the very essence of totalitarianism. It was the hallmark of kaiser and czar, of shah, soviet and fuehrer; it is everywhere and always the way of the tyrant, the despot and the dictator. In any place where the police point the finger and the turnkey locks the door, citizenship is indistinguishable from slavery. Any effort to force judges to hold the unconvicted on excessive bails diminishes the collective liberty of the community and cuts to the heart of individual freedom.

In America, the complaint is considered a mere accusation lacking in substance and significance until proven. Every person accused of a crime is presumed innocent and every burden, be it proceeding, persuading or proving, is upon the prosecuting attorney. Is this not what we want it? Certainly no one disputes the importance and implications of the presumption of innocence when it is self, kith or kin standing in the dock. Can we not also agree that none are secure in their own liberty unless the neighbor, the stranger and the traveler are equally protected?

When the barons of England surrounded King John at Runnymeade in 1215, handed his majesty the quill and compelled royal approval of the Magna Carta, foremost among the liberties claimed was, "No freeman shall be taken or imprisoned or outlawed or banished or in any way destroyed except by legal judgment of his peers or by the law of the land." Despite judicial validations and royal confirmations of this right, the liberties of English citizens were continually under attack throughout the middle ages.

When judgeships were among the king's prerogatives, to be awarded and revoked at royal whim, Parliament was the only line of defense against despotic rule. It was Parliament that abolished the Star Chamber in 1641 and Parliament again that passed the Habeas Corpus Act of 1679. Royalist judges then silenced the king's critics by levying exorbitant bails and indefinitely delaying trials until the putrid food and turgid air of the varmint-infested Tower of London stilled the opposition's voices.

In response to this and other abuses, the 1689 Bill of Rights that concluded the Glorious Revolution contained the first constitutional ban on excessive fines and bails and cruel and unusual punishments. Almost 100 years later, that clause of prohibition was adopted verbatim in the Massachusetts constitution written by John Adams and shortly thereafter adopted as the Eighth Amendment to the United States Constitution.

To be true to oath and obligation, the judge must not forget that the Eighth Amendment, which he/she has promised to uphold, is specifically addressed to him/her and compels setting a bail within the resources of the accused and his/her circle of support. The only permissible purpose of bail is to insure the defendant's presence at the next court event. If used to punish, the innocent will be chastised with the guilty. If used to prevent commission of additional crimes, such use is itself a crime against due process and equal protection of law. If used to quiet public clamor, mollify critics or combat a political perception of soft-on-crime judges, the appeasing justice would subvert the very foundations of the social order he/she swore to support.

Our legislature, with the governor's approval, has enacted a process by which dangerous defendants can be restrained while awaiting trial. Such "dangerous hearings" may be burdensome and time consuming but it is both honorable and responsible to value personal liberty over ease and speed. It is far better to move slowly and thoughtfully and get it right than to move quickly and boldly and imprison the undeserving. Moreover, this process allows a judge to protect the public and potential victims against brutes, thugs and other violent menaces without corrupting the Eighth Amendment.

Our legislature, with the governor's approval, has mandated that every person accused of crime (except murder or treason) be released on personal recognizance unless bail is shown to be necessary. This law also lists the factors to be considered in setting the amount if necessity is found. These include the seriousness of the offense and the potential penalty; the defendant's ties to family and community; work, drug, alcohol, criminal and default histories; and status within the justice system. It is a comprehensive list. Once as a tyro jurist, I tried to devise a mathematical formula where X was the defendant's weekly income and the statutory considerations were afforded plus or minus powers. New judges frequently undertake such adventures but soon learn that judging is more art than science, and that if formulistic solutions could be devised, computers would replace judges.

Surrounded by state and federal constitutions, a comprehensive statutory scheme, traditional standards of jurisprudence and an Anglo-American history of freedom, judges are compelled to err toward personal recognizance and reasonable bails. A free society is inconvenienced when defendants fail to appear, but it is undermined when innocent people are incarcerated without trials. Given the enormous number of criminal cases processed each day in Massachusetts, it would be easy to compile a list of arguable judicial errors in setting bail. Such a list is evidence of two phenomena: the compiler's ill will toward the judiciary and the judiciary's high regard for the principles of freedom that have evolved from that circle of English barons who wrest from King John that first of all civil rights - "No freeman shall be imprisoned except by legal judgment or the law of the land."

Understood thus, any such compiler's ill will is a badge honorably earned and proudly worn.

©2017 Massachusetts Bar Association