Bail Revocations

When a defendant is released on bail, he is released from custody pending the outcome of his criminal case on the condition that he provide a certain amount of money to the court for the court to hold until the end of the case. The purpose behind requiring a defendant to post a monetary amount is to ensure that he appears at all court dates, as his bail money will be forfeited in the event he fails to appear for court in the future. In addition to the requirement that a defendant appear in court, there are other conditions of release on bail that a defendant must abide by, including the condition that a defendant not commit any criminal offense while on release, and comply with any specific conditions of release set by the court.

If a defendant is charged with a criminal offense while he is out on bail in another case, or fails to abide by conditions set by the court, his release on bail may be revoked. Specifically, the Commonwealth may file a motion to revoke the defendant’s bail. If such a motion is allowed, the court has the authority to hold the defendant without bail for up to ninety days, meaning the defendant will be held in jail for the ninety days without the ability to post a bail. In light of the significant impact a revocation has on a person’s liberty, it is of the utmost importance that a defendant who is at risk for bail revocation consult with an experienced attorney who can make a persuasive argument the court against revocation.

There are two different ways that defendant’s bail may be revoked in Massachusetts: bail revocations pursuant to G. L. 276, § 58 and bail revocations pursuant to G. L. c. 276, § 58B.

The first procedure for bail revocation is laid out under G. L. c. 276, §58. This procedure is commonly used when a person is released on bail and is alleged to have committed a new offense.

In order to revoke bail under G. L. c. 276, § 58, the court must find:

1. That the defendant received his bail warning;
2. Probable cause to believe that a new offense has been committed while the defendant was on release for another charge; and
3. That the release of the defendant will seriously endanger any person or the community, and that detention of the person is necessary to reasonably assure the safety of the person or the community.

As to the first requirement, a judge or clerk magistrate must warn any person released on personal recognizance or bail that if he commits a new offense, his bail may be revoked and he may be held for a period not to exceed sixty days. G. L. c. 276, §58 requires that a bail warning be given at arraignment. If there is no record of such a warning, or there is some question as to the completeness of the warning, an attorney has a strong argument that this requirement has not been met, and therefore that the court cannot revoke the defendant’s bail.

As to the second requirement, the Commonwealth must show that there is probable cause that a new offense has been committed. This does not necessarily mean that the defendant must be charged with a new offense, although that is typically the case. Rather, defendant’s bail may be revoked even if a defendant has not yet been charged, as long as the Commonwealth makes the showing of probable cause to believe that a new offense has been committed. If the allegations relating to the new offense are weak or there is some other way to undermine their credibility, an attorney may well be able to make a persuasive argument that this requirement has not been met.

As to the third requirement, case law states that a bail revocation based on a new offense should be limited to cases “involving defendants who have been charged with committing a subsequent serious offense and, because of the nature of the offense, constitute a danger.” In determining whether detention is necessary to protect persons or the community, the court must consider the following factors:

1. The gravity, nature and circumstances of the offense charged;
2. The defendant’s record of convictions, if any;
3. Whether the defendant’s convictions involve the use or threatened use of physical force or violence against any person;
4. Whether the defendant is on probation, parole, or other release pending completion of sentence for any conviction;
5. Whether the defendant is on release pending sentence or appeal for any conviction;
6. The defendant’s mental condition;
7. Any illegal drug distribution or drug dependency.

There are many cases in which some sort of conditions of release will be sufficient to ensure the safety of any alleged victims, witnesses, and/or the community. A creative attorney can suggest conditions to the judge, and help facilitate the imposition of the conditions, for example, requiring the defendant to stay away from and not have any contact with any witnesses, or a particular location.

Although the court is not required to revoke bail under G. L. c. 276, § 58, if the court chooses to do so, the defendant may be held without bail pending the adjudication of the prior charge, for a period not to exceed sixty days. Revocation may be reconsidered if the defendant or the Commonwealth can show that “a manifest injustice will result if a bail revocation order is not revisited.” For example, if an attorney investigates the case and the alleged victim recants, the attorney could then argue to the court that it would be a “manifest injustice” for the defendant’s bail to continue to be revoked. Additionally, dismissal or acquittal on the case in which the bail was revoked will end the revocation order. The court will not necessarily be aware of such weaknesses in the new case or a dismissal or discharge of the case in which the bail is revoked, therefore, having an attorney who is on the ball and ready and able to bring such information to the court may mean the difference between a defendant’s immediate release and continued detention for the remainder of the revocation period.

The second statutory procedure for revocation of bail is under G. L. c. 276, §58B and is based on a violation of conditions of release ordered pursuant to G. L. c. 276, §§ 58, 58A or 87.

In order for the court to revoke bail under G. L. c. 276, § 58B, the court must find:

1. That the defendant received notice of the conditions;
2. Probable cause that a new offense has been committed while the defendant was on release for another charge OR there is clear and convincing evidence that the defendant has violated any other condition of release; and
3. That the release of said person will seriously endanger any person or the community and detention of the person is necessary to reasonably assure the safety of the person or the community OR the person is unlikely to abide by any condition or combination of conditions of release.

As under § 58, as to the first requirement, a judge or clerk magistrate must provide the defendant with notice of the conditions that he must abide by upon his release.

As to the second requirement, the Commonwealth may show either that there is probable cause that a new offense has been committed or that there is clear and convincing evidence that the defendant has violated previously set conditions. Again, a defendant’s bail may be revoked even if a defendant has not been charged with a new offense, as long as the Commonwealth makes the showing of probable cause to believe that a new offense has been committed. Under G. L. c. 276, § 58B, if the revocation is for a new offense and there is probable cause to believe that a new crime was committed, there is a rebuttable presumption that no conditions “will assure that the person will not pose a danger to the safety of any other person or the community.” This presumption may be overcome, however, with the argument that the offense is not serious, that the crime did not involve the threat or infliction of bodily harm, or that the defendant is involved in community programs that would assure the safety of the community.

As to the third requirement, in determining whether detention is necessary to protect persons or the community, the court must consider the same factors listed above in relation to § 58.

Similarly to G. L. c. 276, § 58, the court is not required to revoke bail under this section, unless it specifically finds that the defendant is unlikely to abide by conditions or poses a danger. Additionally, the court may amend conditions of release if the defendant will abide by new conditions, and those conditions provide assurance that the person will not be a danger to any person or the community. If the court does order revocation under this section, it may order the defendant held without bail pending the adjudication of the prior charge, for a period not to exceed ninety days.

Nobody wants to be in jail. Being held in custody means time spent away from friends and family, an inability to earn money, the potential loss of housing, and is extremely disruptive and unpleasant in many different ways. Although a defendant facing potential bail revocation is precarious position, having his bail revoked is hardly a foregone conclusion. With the right attorney standing by his client’s side and ready to fight, he may well walk out of the courtroom. If you or a loved one have been arrested or summonsed on a new case while you are out on bail, attorney Daniel Cappetta can help fight for your freedom. Call him for a free consultation today.