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SJC-12455

A JUVENILE vs. COMMONWEALTH.

August 13, 2018.

Supreme Judicial Court, Superintendence of inferior courts.

Delinquent Child. Bail.

The petitioner, a juvenile, has been charged in a 

delinquency complaint with being an accessory to murder after 

the fact, in violation of G. L. c. 274, § 4, and with assault 

and battery by means of a dangerous weapon, in violation of 

G. L. c. 265, § 15A. At the juvenile's arraignment, a Juvenile 

Court judge set bail at $50,000. A Superior Court judge 

subsequently denied the juvenile's petition for bail review, and

the juvenile then filed a petition with a single justice of this 

court pursuant to G. L. c. 211, § 3. The single justice denied 

the petition, and the juvenile appeals. We affirm.1

Background. The juvenile has been in the permanent custody 

of the Department of Children and Families (department) since 

2013. In October, 2016, he was charged in a delinquency 

complaint with vandalizing property, in violation of G. L. 

c. 266, § 126A, and assault and battery, in violation of G. L. 

c. 265, § 13A. After his arraignment on those charges, he was 

released to the custody of the department. He subsequently 

failed to appear for a compliance and election hearing scheduled 

for January, 2017, and a default warrant issued. The juvenile 

remained in default until October, 2017, when he was arrested in 

connection with the events that led to the current charges.

 

1 We acknowledge the amicus brief submitted by the Committee 

for Public Counsel Services, Youth Advocacy Division and 

Children and Family Law Division.
2

In setting the juvenile's bail at $50,000, the Juvenile 

Court judge marked on the bail form that the reasons for doing 

so were the nature and circumstances of the offenses charged; 

the potential penalty the juvenile faces; and the juvenile's 

family ties, record of flight to avoid prosecution, failure to 

appear at a court proceeding, and status of being on bail 

pending adjudication of a prior charge. The judge also included 

handwritten notes in the section for "Findings of fact for bail 

amount higher than what juvenile/defendant may afford," which 

appear to state that "[t]he Juvenile may be indicted. -- Victim 

murdered -- child in DCF and DYS custody -- been in warrant 

status since Jan. 18, 2017 -- Co-Defendant, stabbing -- fled 

with him + returned 4 murder weapon."

The juvenile petitioned for a review of the bail 

determination in the Superior Court. A judge in that court 

denied the petition in a handwritten marginal note stating that 

"[t]he court has considered the defendant's lack of financial 

resources. However, given the fact that he is in the custody of 

DCF and has been a runaway for months, there is no reasonable 

alternative to assure the defendant's appearing in court other 

than setting a bail he cannot post. [Brangan v. Commonwealth], 

477 Mass. 691 (2017)."

Discussion. The juvenile argues, among other things, that

a judge making a bail determination for a juvenile in the 

department's custody must take into account the fact that the 

department does not post bail for such juveniles, and therefore 

bail in any amount will be more than the juvenile can pay and 

will result in pretrial detention.2 In his view, both judges who 

addressed the bail issue here -- the Juvenile Court judge in 

setting bail, and the Superior Court judge in denying the 

petition for bail review -- failed to do this and, as a result, 

violated his due process rights. In the particular 

circumstances presented here, and in particular on the record 

before us, we disagree.

In our recent decision in Brangan v. Commonwealth, 477 

Mass. 691 (2017), we addressed the extent to which a judge

 

2 The juvenile states that the Department of Children and 

Families (department) does not post bail for juveniles in its 

custody. Although the juvenile has not provided any definitive 

support for this assertion, he has provided certain information 

that suggests this to be true (and the Commonwealth does not 

specifically disagree). At least for purposes of this appeal, 

we accept this to be true.
3

"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."

Id. at 693. We concluded that although a judge must consider a 

defendant's ability to pay, the judge "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." 

Id. In short, a judge may, in certain circumstances, set a bail 

that a defendant will be unable to post.

If the judge does so, "the judge must provide findings of 

fact and a statement of reasons for the bail decision, either in 

writing or orally on the record," that explain not only "how the 

bail amount was calculated" but also why, "notwithstanding the 

fact that the bail amount will likely result in the defendant's 

detention, the defendant's risk of flight is so great that no 

alternative, less restrictive financial or nonfinancial 

conditions will suffice to assure his or her presence at future 

court proceedings." Id. at 707.

In this case, when the Juvenile Court judge set bail at 

$50,000, the judge was, for all intents and purposes, issuing an 

order of detention, because the juvenile had no financial 

resources to post that amount of bail or, in fact, any amount of 

bail. There is no question, following our decision in Brangan, 

that where a bail determination is likely to lead to pretrial 

detention, a judge making that determination must consider 

alternative nonfinancial conditions and must make findings in 

connection with the decision. Those findings should demonstrate 

that a judge has engaged in fair and meaningful consideration of 

reasonable alternatives relevant to the circumstances of the 

case such that a reviewing court can be satisfied that the 

requirements detailed in Brangan have been met. As we indicated 

in Brangan, the findings can be written or oral so long as there 

is adequate indication, on the record, that due consideration 

has been given to nonfinancial alternatives.3 This holds true 

 

3 We reiterate here a point that we made in Brangan v. 

Commonwealth, 477 Mass. 691, 707 n.19 (2017), regarding the use 

of the form captioned "Reasons for Ordering Bail, G. L. c. 276, 

§ 58." The Juvenile Court form -- which lists several generic 
4

regardless of whether the bail determination pertains to a 

juvenile or adult defendant.

There also is no question that when a juvenile (or a 

defendant) petitions this court pursuant to G. L. c. 211, § 3, 

seeking review of a bail determination (or for any other 

reason), it is the petitioner's burden to create a record 

substantiating his claim of error. See, e.g., Gorod v. 

Tabachnick, 428 Mass. 1001, 1001, cert. denied, 525 U.S. 1003

(1998), and cases cited (petitioner's burden to create record 

showing substantial claim of violation of substantive right).

In this case, such a record might have included details 

regarding the bail hearing in the Juvenile Court (in the form of 

a transcript, an affidavit from counsel, or some other reliable 

source) that would show, as the juvenile claims, that reasonable 

nonfinancial conditions were not discussed or considered by the 

judges below. We do not have that. All we have in the record 

before us (and all that was before the single justice) are the 

bail form completed by the Juvenile Court judge and the Superior 

Court judge's handwritten notation in the margin of the petition 

for bail review.

Although the details that the judges set forth as to what 

informed their respective decisions are scant, those details are

enough, in the circumstances, to demonstrate that there was no 

abuse of discretion in setting the juvenile's bail. As is noted 

in the decisions, the juvenile was in default at the time of his 

arrest on the current charges; he had essentially fled from the 

department's custody and was a "runaway" at the time of his 

arrest; and, importantly, the Superior Court judge noted that 

there was no reasonable alternative to bail. The judges, in 

other words, recognized the very issues with which the juvenile 

is (and we are) concerned. We are satisfied that no due process 

violation has occurred in this instance.

The juvenile also raises two additional issues regarding 

setting bail for a juvenile in the department's custody: first,

 

categories of reasons for the bail that a judge may check off --

may be useful in making the required findings, but "we caution 

that further elaboration of the findings may be prudent where 

the bail is likely to result in long-term detention," as would 

generally be the case with juveniles in the custody of the 

department. Id. We also take this opportunity to suggest that 

the Juvenile Court consider revising the form to better reflect 

the need for the consideration of alternative nonfinancial 

conditions.
5

that doing so violates a juvenile's equal protection rights; and 

second, that doing so involves both executive and judicial 

branches of government and thus violates the separation of 

powers principles set forth in art. 30 of the Massachusetts 

Declaration of Rights. As to the latter issue, the juvenile did 

not raise it before the single justice, and we therefore need 

not consider it. See Carvalho v. Commonwealth, 460 Mass. 1014, 

1014 (2011), and cases cited.

As to the former issue, regarding equal protection, we find 

no merit to the juvenile's assertions. The juvenile argues that 

because the department does not post bail for juveniles in its 

custody (see note 2, supra), a juvenile so situated is being 

treated differently from a juvenile in the custody of a parent, 

who, the argument goes, may have the ability to post bail for 

the juvenile. The argument misses the mark. The basis of a 

juvenile's inability to post bail makes no difference. A 

juvenile in the department's custody is no differently situated, 

for purposes of posting bail, from a juvenile whose parents 

cannot afford bail or, for that matter, an indigent adult 

defendant. The juvenile is not, in short, as he suggests, being 

penalized for not having a family.

Conclusion. Where the bail determination was appropriately 

made and no violation of the juvenile's rights has been shown to 

have occurred, the single justice did not, on the basis of the 

record before him, err or abuse his discretion in denying the 

juvenile's G. L. c. 211, § 3, petition, seeking review of that 

determination.

Judgment affirmed.

Melissa Allen Celli (Julianne Feliz-Kidd also present) for 

the juvenile.

Stephen C. Nadeau, Assistant District Attorney, for the 

Commonwealth.

Afton M. Templin, for Youth Advocacy Foundation of the 

Committee for Public Counsel Services & others, amici curiae, 

submitted a brief.