Heard: May 2, 2017.
action commenced in the Supreme Judicial Court for the county
of Suffolk on February 26, 2016.
case was heard by Lenk, J.
Merritt Schnipper for the petitioner.
Bala, Assistant District Attorney, for the Commonwealth.
Diner & Ryan M. Schiff, for Committee for Public Counsel
Services, amicus curiae, submitted a brief.
Present: Gants, C.J., Hines, Gaziano, Lowy, Budd, &
Cypher, JJ. 
practice of releasing a defendant on bail prior to trial has
been part of Massachusetts law since its beginnings as a
colony. See Commonwealth v. Baker, 343 Mass. 162,
165 (1961). The Body of Liberties (1641), the oldest known
compilation of Massachusetts Colonial law, provided that:
"18. No mans person shall be restrained or imprisoned by
any Authority whatsoever, before the law hath sentenced him
thereto, If he can put in sufficient securitie, bayle or
mainprise, for his appearance, and good behaviour in the
meane time, unlesse it be in Crimes Capital, and Contempts in
open Court, and in such cases where some expresse act of
Court doth allow it."
See Baker, supra.
statement, although nearly four centuries old, summarizes
well the dual functions of bail. On the one hand, release on
bail preserves the liberty of the accused until he or she has
been afforded the full measure of due process in a criminal
trial. "This traditional right to freedom before
conviction permits the unhampered preparation of a defense,
and serves to prevent the infliction of punishment prior to
conviction. . . . Unless this right to bail before trial is
preserved, the presumption of innocence, secured only after
centuries of struggle, would lose its meaning" (citation
omitted) . Stack v. Boyle, 342 U.S. 1, 4 (1951)
the other hand, the giving of security serves to assure that
the defendant will appear in court when called to do so.
"The right to release before trial is conditioned upon
the accused's giving adequate assurance that he will
stand trial and submit to sentence if found guilty."
Id. Where, as in this case, the defendant is unable
to give the necessary security for his appearance at trial
because of his indigence, the purpose of bail is frustrated.
The cost to the defendant is the loss of liberty and all the
benefits that ordinarily would accrue to one awaiting a trial
to determine his guilt or innocence.
petitioner in this case, Jahmal Brangan, has been held at the
Hampden County jail since January 17, 2014 -- more than three
and one-half years -- because he has been unable to post bail
in the amounts ordered by a Superior Court judge following
his arrest and indictment for armed robbery while masked. In
this appeal from a judgment of a single justice denying his
petition for relief under G. L. c. 211, § 3, Brangan
contends that the single justice's denial of his bail
review request should be reversed because the Superior Court
judge's bail order is unconstitutional. In particular, he
argues that the bail order violated his right to due process
because the judge failed to give adequate consideration to
his financial resources, and set bail in an amount so far
beyond his financial means that it resulted in his long-term
detention pending resolution of his case.
resolving the issues Brangan raises, we address the extent to
which a judge must consider a criminal defendant's
financial resources in setting bail, whether such a defendant
is constitutionally entitled to an affordable bail, and the
due process requirements that apply if the judge settles on a
bail amount that is more than the defendant can pay,
resulting in pretrial detention. For the reasons explained
below, we conclude that in setting the amount of bail,
whether under G. L. c. 276, § 57 or § 58, a
judge must consider a defendant's financial
resources, but is not required to set bail in an amount the
defendant can afford if other relevant considerations weigh
more heavily than the defendant's ability to provide the
necessary security for his appearance at trial. Where, based
on the judge's consideration of all the circumstances,
including the record of defaults and other factors relevant
to the likelihood of the defendant's appearance for
trial, neither alternative nonfinancial conditions nor a bail
amount the defendant can afford will adequately assure his
appearance for trial, the judge may set bail at a higher
amount, but no higher than necessary to ensure the
defendant's appearance for trial. We conclude further
that where it appears that a defendant lacks the financial
resources to post the amount of bail set, such that his
indigency likely will result in a long-term pretrial
detention,  the judge must provide written or orally
recorded findings of fact and a statement of reasons for the
bail decision. Based on the record before us, it does not
appear that the judge here considered Brangan's financial
resources in setting the bail. Therefore, we reverse the
judgment of the single justice and remand this matter to the
county court to direct the Superior Court judge to conduct a
new bail hearing for Brangan as soon as possible in accord
with the standards set out in this opinion.
January 17, 2014, a man wearing a cap, scarf, and sunglasses
robbed a bank in Springfield by passing a note to the bank
teller demanding money and stating that he had a weapon. The
teller handed over less than $1, 000 to the robber, who then
fled. The police arrested Brangan later that same day after
finding his thumbprint on the robbery note.
time, Brangan was on probation following a prison sentence of
from eight to twelve years for rape of a child and related
charges. Consequently, the probation department
filed a notice of surrender, and when Brangan appeared on
February 10, 2014, a judge of the Superior Court set bail at
$20, 000 cash or $200, 000 surety based on the probation
violation notice. A grand jury subsequently indicted Brangan
for armed robbery while masked under G. L. c. 265, § 17.
On March 10, 2014, at Brangan's arraignment on the
robbery charge, the judge set bail in the amount of $50, 000
cash or $500, 000 surety. Brangan remained in custody pending
March, 2015, Brangan was tried and convicted on the armed
robbery charge, after which the judge revoked his bail.
Shortly after the entry of a guilty verdict, however, the
trial judge declared a mistrial due to certain statements in
the prosecutor's closing argument, and ordered Brangan to
be retried; the Commonwealth then appealed from the
mistrial order. In the wake of the mistrial ruling, the judge
held another bail hearing on April 10, 2015, and reinstated
the original bail at $50, 000 cash or $500, 000 surety.
Brangan unsuccessfully sought reduction of the bail in the
Superior Court on July 15, 2015, and December 28, 2015.
January, 2016, this court granted Brangan's application
for direct appellate review of the Commonwealth's appeal
from the trial judge's mistrial order. We subsequently
held that the Commonwealth had no right to appeal from the
mistrial order, leaving the armed robbery charge to stand for
retrial. See Commonwealth v. Brangan, 475 Mass. 143,
148, 149 (2016) (Brangan I).
Brangan followed a long and tortuous path to seek relief from
his pretrial detention, filing four successive petitions in
the county court pursuant to G. L. c. 211, § 3. The
single justice denied Brangan's first petition without
prejudice due his failure to file the record materials
necessary to support his claims.
considering Brangan's second petition, the single justice
observed that the judge who had denied Brangan's motion
for reduction of bail on December 28, 2015, had not made any
oral or written findings or otherwise explained his decision.
Accordingly, the single justice remanded the matter for a
hearing to determine bail based on the factors set forth in
G. L. c. 276, § 58. A judge of the Superior Court then
conducted a bail hearing and issued a written decision
retaining the original bail in the amount of $50, 000 cash or
$500, 000 surety for the armed robbery charge and $20, 000
cash or $200, 000 surety for the probation violation.
Brangan filed a third petition, the single justice remanded
the matter to the Superior Court for consideration in light
of this court's decision in Brangan I, which had
been issued in the interim. A Superior Court judge then
conducted another hearing and entered an order, dated
September 19, 2016, that reduced the defendant's bail to
$20, 000 cash or $200, 000 surety for the armed robbery
indictment and retained the original bail in the amount of
$20, 000 cash or $200, 000 surety for the probation
District Court form captioned "Reasons for Ordering
Bail, G. L. c. 276, § 58, " the judge checked off
the following boxes as grounds for denying Brangan's
release on personal recognizance without surety: the nature
and circumstances of the offense charged; the potential
penalty he faced; his history of mental illness; his record
of convictions; the fact that his alleged acts involved
"abuse" as defined in G. L. c. 209A, § 1; his
history of orders issued against him under G. L. c. 209A; and
his status of being on probation. In additional notes on the
form, the judge stated that he had considered the matter in
light of Brangan I in accord with the single
justice's remand order and heard oral argument and
reviewed the parties' submissions. As further grounds for
the bail determination, he cited Brangan's prior sentence
to State prison for multiple counts of rape of a child; the
fact that he faced a substantial penalty if convicted of
armed robbery; his history of c. 209A orders; and the fact
that he was on probation at the time he allegedly committed
the armed robbery. The judge also ordered that, if Brangan
posted bail, his release would be on condition that he wear a
global positioning system (GPS) bracelet, observe a curfew,
and stay away from the alleged victims.
then filed a fourth petition with the county court, arguing
that the Superior Court judge had failed to give meaningful
consideration to his inability to make the bail, to the
equities in the case, and to his alternative proposal to post
$5, 000 cash bail and wear a GPS bracelet. Brangan further
asked the single justice to conduct a bail hearing de novo.
In support of this petition, Brangan filed an affidavit
stating that the Superior Court judge had found him to be
indigent when he was first charged in January, 2014; that he
had been represented at trial and on appeal by
court-appointed attorneys; that his financial condition was
far worse than when he was first charged, since he had been
incarcerated and unable to work; and that there was no way he
could hope to post the $40, 000 bail that the judge had set.
single justice denied the fourth petition, ruling that
Brangan's inability to make a particular bail amount did
not render the Superior Court judge's order a functional
denial of bail, and did not establish, without more, that
Brangan was entitled to extraordinary relief under G. L. c.
211, § 3. The defendant appealed from the single
justice's order pursuant to S.J.C. Rule 2:21, as amended,
434 Mass. 1301 (2001). This court ordered the appeal to
proceed with briefing and argument. We noted that filing a
petition pursuant to G. L. c. 211, § 3, is the proper
means for seeking relief from bail determinations in the
Superior Court, see Commesso v. Commonwealth, 369
Mass. 368, 372 (1975), and that Brangan had no other means of
obtaining adequate appellate review.