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tomatuvm t1_ixukw8a wrote

Reply to comment by dante662 in Three arrested with 100 pounds of fentanyl in Mattapan apartment, DA says by FuriousAlbino

So just put people in jail indefinitely on the word of the police?

That seems problematic.

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iamheero t1_ixuyikx wrote

No, not indefinitely. In a felony trial, you have to have a preliminary hearing early on in the process. The purpose of the preliminary hearing is to determine (by putting on a mini-trial) if there's probable cause to believe the person accused actually did the crime so that you're not holding someone indefinitely. This is determined by a judge, and the defendant has an attorney to challenge the witnesses and evidence presented. Prosecutors need to prove (admittedly to a lower standard than at trial, again, probable cause) every element of the crimes. Typically these are set to occur within like 10 days of being charged, so that people aren't wrongfully held. This is in most states, if not all of them (Louisiana may be an exception, for example).

Now, practically speaking many defendants waive their own rights so that their attorney has more time to prepare, there are sometimes benefits to resolving a case before that hearing, but that's their choice. If they really were held in custody with no evidence, they'd do the hearing ASAP and they'd have their cases dismissed. The thing is, that almost never happens.

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tomatuvm t1_ixv4kg4 wrote

Thank you for the info! Correct me if I'm wrong (genuinely asking here):

In Massachusetts bail is based on the ability and means to pay and the risk of flight, not on the severity of the crime. If the crime is severe enough, they have dangerousness/evidence hearings to determine if bail should be an option or not, correct? If there's risk/threat, they just don't have bail, right? Because bail isn't set up to be a mechanism to hold people and not everyone charged with a violent crime is denied bail, correct?

Basing it off my understanding of reading articles on the SJC ruling a few years ago, and not on any actual legal experience (hence why these are all questions more than statements)

https://www.molarilaw.com/blog/massachusetts-supreme-judicial-court-bail-must-be-affordable-defendants

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iamheero t1_ixv619x wrote

So to preface: I am barred (inactive) in Mass, but I don't practice criminal law there so treat this like I'm a layperson. I do practice criminal defense and was a prosecutor in California, and they have a similar rule, so I'll just answer based on the laws there.

That's pretty much correct, at least in CA. The way it works in CA is if bail is set, it must be at a level that's affordable to the individual (ie not set on a schedule sheet) but still be an incentive to return to court. There can be additional requirements for bail like an ankle monitor, but that's not always needed. However, as you mentioned, depending on the severity of the crime, there's a strong possibility that bail will just not be set. Like robbery, for example, which is a violent crime (and counts as a 'strike' for CA sentencing purposes). It's very serious and so the judge may decide that the danger to the community and the risk of flight outweighs the accused's right to bail. They weigh a number of factors, but they're also basing the seriousness on how the DA charged the case, not on a hearing with evidence presented. For example, I have a client right now accused of a very serious crime and was given no bail, but the violent crime he's charged with was done in self-defense, which isn't in the police report or the complaint, so the judge can't really consider it.

So simply put, the judge first determines SHOULD they get bail, and then determines how much based on their income/resources.

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tomatuvm t1_ixva77m wrote

Thank you for the info! The last paragraph sums up my layperson's understanding.

Hopefully it won't ever gain first hand experience on this one 😂

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dante662 t1_ixungxz wrote

By the court.

Violent crimes, no bail, remanded until trial.

Non violent, released on own recognizance.

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tomatuvm t1_ixuotln wrote

You're proposing that someone lose their freedom over an accusation of a crime. Surely you can see the issue with that?

The purpose of bail, per the Constitution, is to ensure people show up to trial. Not punish them pre-trial. My understanding is there is a dangerousness hearing process to determine if the circumstances warrant not providing bail at all, based on the seriousness of the crime and evidence. But if you get bail, it has to be affordable but also expensive enough to make sure they show up to court*

  • I am definitely not a lawyer so all corrections are welcome
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Sometimes_cleaver t1_ixuqvvk wrote

You're commenting to people who's only understanding of the criminal justice system is from Law and Order.

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