Constitutional Law

5:24 PM November 6, 2017

Bail: What you need to know.

By |November 6, 2017|Constitutional Law, Court System, Criminal Justice, Legal Overviews|0 Comments|

Bail is a very important matter for those facing criminal charges. At arraignment, the Commonwealth, though the Assistant District Attorney, will often request bail. The Defense Attorney will also make a bail request, and then the judge must decide how much bail, if any, to impose.

A recent decision by the Supreme Judicial Court (SJC) has outlined the factors to be considered in setting bail. The most important development from this new ruling, Brangan v. Commonwealth 477 Mass. 691 (2017), is that a Defendant’s dangerousness is NOT a factor to be considered in setting bail.

If the Commonwealth is moving to hold someone without bail, it must hold a dangerousness hearing, which is a separate event from the arraignment; at such a hearing, both parties may introduce evidence, including witness testimony, regarding the Defendant’s alleged dangerousness. The Commonwealth bears the burden of showing that no less restrictive conditions of release (such as GPS monitoring or stay away orders) would mitigate the Defendant’s dangerousness to either specific individuals or to the community at large. Such hearings are largely reserved for particularly heinous crimes.

If dangerousness is off limits at arraignment, then what elements CAN factor in to a bail determination? The most important is the Defendant’s record of defaults. A default occurs when an individual fails to show up for court without justification. If a Defendant has a history of defaults, judges will often impose some bail to assure his/her presence at future court dates. Other factors that judges may consider include: the nature and circumstances of the offense charged, the Defendant’s record of convictions, family ties, length of residence in the community, character, and financial resources.

The Brangan decision further outlines the manner in which a Defendant’s financial resources may be considered. At the broadest level, the court must give each Defendant an individualized bail determination that takes his/her financial resources into account. This is particularly important to poor and indigent Defendants. As the SJC explained:

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. A $250 cash 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 detention for a homeless person whose entire earthly belongings can be carried in a cart. What would be a reasonable bail in the case of one defendant may be excessive in the case of another.” Brangan at 700.

That said, the court is NOT under any obligation to set a bail that the Defendant can afford to post. The test instead is based on reasonableness; the amount of bail set must be no higher than that which would secure the Defendant’s appearance. Judges are required to detail in writing all factors they have considered in setting bail.

If the bail set by the court is not affordable, resulting in the Defendant being held in custody, he/she is entitled to a bail review hearing. For bails set in the District Courts, bail review hearings occur in the Superior Court; for bails set at the Superior Court, bail review occurs at the SJC in front of a single justice.

While Massachusetts maintains a presumption favoring release on personal recognizance, it is very important to have an attorney make a strong bail argument at arraignment.

12:29 AM August 17, 2017

On Civil Disobedience

By |August 17, 2017|1st Amendment, Constitutional Law, Criminal Justice, Legal Overviews|0 Comments|

A quick word to friends who are considering engaging in civil disobedience. Be prepared! If you disobey police orders, you are subject to arrest.

The police have broad power to enforce public order. During a protest, instigators are subject to arrest for “public order offenses” such as affray and disturbing the peace. Though the Boston Police tend not to arrest people in en-masse, if you repeatedly disobey an officer’s order, you will probably be arrested. (Note, State Police and Federal law enforcement agencies tend to be more aggressive).

More on resisting arrest… the Massachusetts Model Jury Instructions state:

“A person commits the crime of resisting arrest if he knowingly prevents or attempts to prevent a police officer . . . from effecting an arrest of [himself] or another by using or threatening to use physical force or violence against the police officer or another […]”

This language means you can get arrested for resisting yourself or attempting to help another resist. Also, the language allows arrest upon the “threat” of use of physical force. Individuals who do in fact use physical force against an officer will likely also be charged with Assault and Battery on a Police Officer (ABPO). Note: even the slightest application of force can be the basis for an ABPO charge.

After arrest, comes booking at the police station. At this point, most people are released, either on their personal recognizance to show up in court or by paying bail. Again, the police set this initial bail, and if a lot of people are being arrested, you may have to wait hours to be booked.

Upon release, you will be given a time to appear in court. That’s when to contact me! The sooner you have an advocate working on your case, the better.

That short of this is, if you are contemplating arrest, have someone to call who will post your bail! Write down that number and keep it on your body; assume your phone will be inaccessible.

To those advocating for justice and radical equality, thank you! As you take to the streets, be smart in your tactics.

8:47 PM March 26, 2015

Personal Liberties & Ballot Initiatives: MA v. CA

By |March 26, 2015|Constitutional Law, LGBT Rights|0 Comments|

In many states, including Massachusetts, residents can legislate directly through the ballot initiative process. Recently, such proposals have included: expanding bottle deposits, repealing the casino law, and mandating paid employee sick leave.

In MA, the process for bringing forth such petitions is detailed in Article 48 of the Massachusetts Constitution. First, the proposal must have the support of ten voters. Then, the Attorney General must review the proposal to make sure it does not touch upon “excluded matters,” which themselves are enumerated in the MA Constitution. For instance, ballot measures regarding religion, religious practices, or the appointment of judges are strictly prohibited.

The Massachusetts Constitution also prohibits ballot petitions that infringe on personal liberties. Such liberties are found in the first part of the MA Constitution, which is known as the “Massachusetts Declaration of Rights.” While the Massachusetts Constitution was revolutionary at the time it was ratified in 1780, it is very much a living document that has changed with the times. In 1976, the language pertaining to personal liberties was expanded to state: “Equality under the law shall not be denied or abridged because of sex, race, color, creed or national origin.” see MA Constitution, Article CVI.

So long as a ballot initiative does not infringe upon personal liberties or other excluded matters, the Attorney General will certify the initiative for filing with the Secretary of State. Having passed this first hurdle, initiative proponents must then gather signatures. (Specifically, proponents must gather a number of signatures equal to 3% of votes cast for Governor in the most recent election, roughly 69,000.) If this second hurdle is cleared, the initiative is sent to the Legislature, which can either approve it, disapprove it, propose a substitute, or take no action. If the legislature does not enact the proposed initiative within five months, the proponent must then gather a second round of signatures (this time 0.5% or votes cast for Governor in the most recent election, approximately 11,000). If this third hurdle is cleared, and all signatures are verified, then the initiative is placed on the ballot. The Secretary of State and Attorney General are responsible for creating a summary of the proposed initiative along with easy-to-understand explanations of the effect of a yes or no vote. Ballot measures that pass with a simple majority of votes take effect in thirty days.

Now that you are an expert on Massachusetts ballot initiatives, let’s take a look at California. In the Golden State, initiative proponents must first submit a text of the measure to a lower level official at the California Attorney General’s office, along with contact information and a $200 deposit. After a 30 day public review period, proponents may, but need not, alter the text of the initiative. After the initial public comment period, the Attorney General must draft a brief title and summary of the proposed petition within 15 days. Only then may the proponent begin to gather signatures. If the requisite signatures are gathered and verified, the initiative is put to vote.

You will notice that the process in California does not include initial review of the proposal by the Attorney General to make sure it does not infringe upon personal liberties. You will also notice that the Attorney General must draft a title and summary of the proposed petition prior to signature collection.

Such is the state of the law in California, and thus the basis of the conundrum facing Attorney General Kamala Harris. Harris has been presented with a petition drafted by California lawyer Matthew McLaughlin called the “Sodomite Suppression Act,” which proposed that gay people be “put to death by bullets to the head or by any other convenient method.” Now, had such a ballot initiative been proposed in Massachusetts, it would fail initial review by the Attorney General, as it clearly violates the Massachusetts Declaration of Human Rights. However, as noted, the California Attorney General is not specifically vested with the authority to make such preliminary determinations of constitutionality. AG Harris is thus in the un-enviable position of being mandated to draft a title and summary of this vile proposition. But Harris isn’t going to just roll over and do it; instead, she has filed an action in the Sacramento Superior Court seeking judicial relief from her duty to prepare the title and summary. While the California AG generally does not have the power to prevent an initiative from moving forward to the signature gathering stage, Harris has argued that in this case, the proposal is unconstitutional on its face, and therefore presents a unique situation.

I’ll update this space once a decision is reached. For now, though, despite all we hate about Massachusetts politics, lets give credit to John Adams and the men whose foresight ensured that such crass and hateful publicity stunts will never see the light of day in our fair Commonwealth.