Change in Bail Considerations

Bail is often set when a judge has concerns about a person coming back to court if they are released. A judge can look at many factors when determining bail such as a history of missing court dates, the strength of the case against them, and seriousness of the charge. Bail is not supposed to be a punishment, but rather an assurance the person will return to court. All too often, this is not the case. Judges may set extremely high bails that a person has no ability to afford; resulting in them sitting in custody until their case is resolved. In 2017, The Supreme Judicial Court attempted to stop this behavior. Brangan v. Commonwealth changed the way bail determinations will be made across the Commonwealth. The Court ordered judges to consider the defendant’s financial resources before setting bail in a criminal case. The Court also set strict requirements that must be met before a judge can impose a bail beyond the defendant’s means. Simply put, a judge must set a bail that the person would have the ability to pay, or they must give reasons why they have set the bail higher than that. Brangan has not completely stopped judges from setting bail outside a client’s means, but it does attorneys the ability to challenge the judge when doing so. January 2020 Many charges have risen out of simple motor vehicle stops. When a police officer states there is a safety concern, they remove an individual from the car and conduct a “pat frisk.” A person could be charged with any contraband found on them during a pat frisk, even if it wasn’t necessarily dangerous. Often times, after a pat frisk for safety, an officer would state they felt a hard object in the suspects pocket “consistent with drugs.” As a result, the person was searched, and charged with drugs found on their person. After finding drugs, police could then search the entire car. In 2020, the Supreme Judicial Court made sweeping changes to this practice in Commonwealth v Manuel Torres-Pagan. Police can no longer frisk drivers during a traffic stop solely on safety concerns. They must have independent information that the driver is potentially armed. The Court stated that “the only legitimate reason for an officer to subject a suspect to a pat frisk is to determine whether he or she has a concealed weapon on their person.” It is difficult to tell how this case will change police behavior given it is so new. However, this will give deference attorneys a good argument when an individual is pulled over and charged with a drug offense after a motor vehicle stop.