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SJC-12648

JOSEPH WALSH & another1 vs. COMMONWEALTH

(and a consolidated case2).

Suffolk. November 7, 2019. - September 2, 2020.

Present: Gants, C.J., Gaziano, Lowy, Budd, Cypher, 

& Kafker, JJ.

Pretrial Detention. Bail. Constitutional Law, Preventive 

detention. Due Process of Law, Pretrial detainees.

Civil actions commenced in the Supreme Judicial Court for 

the county of Suffolk on October 30 and November 7, 2018.

The cases were reported by Lowy, J.

Darren T. Griffis for Mateusz Dymon.

Merritt Schnipper (Robert Hennessy also present) for Joseph 

Walsh.

Ellyn H. Lazar Moore, Assistant District Attorney, for the 

Commonwealth.

Shira Diner & Ryan M. Schiff, for Massachusetts Association 

of Criminal Defense Lawyers, amicus curiae, submitted a brief.

 

1 Committee for Public Counsel Services, intervener.

2 Mateusz Dymon & another vs. Commonwealth.
2

LOWY, J. In these consolidated cases we address issues

reported by a single justice of this court concerning the 

pretrial detention of the petitioning codefendants, Joseph Walsh 

and Mateusz Dymon (defendants). At the defendants' arraignments

on September 20, 2018, in the Superior Court in Worcester County 

on charges relating to a home invasion,3 the Commonwealth moved 

for each of them to be detained before trial due to their 

alleged dangerousness, pursuant to G. L. c. 276, § 58A. Both 

defendants were found to be indigent and were therefore entitled 

to appointed counsel for their § 58A hearings. See G. L. 

c. 276, § 58A (4); S.J.C. Rule 3:10, as appearing in 475 Mass. 

1301 (2016). Due to a shortage of available defense attorneys,

however, there was a delay in the assignment of counsel for the 

defendants. Consequently, their § 58A hearings were continued

until October 16, 2018, while the defendants were held without 

bail, so that they could be represented by counsel. When the 

§ 58A hearings took place, with the defendants' counsel present, 

the hearing judge set bail in the amount of $7,500 cash for 

Walsh and $5,000 cash for Dymon. Neither defendant was able to 

post the required amount, and both were held in lieu of bail.

 

3 The defendants were indicted on charges of breaking and 

entering in the daytime, with the intent to commit a felony, 

placing a person in fear, G. L. c. 266, § 17; larceny in a 

building, G. L. c. 266, § 20; vandalism, G. L. c. 266, § 126A; 

and possession of burglarious tools, G. L. c. 266, § 49.
3

Both defendants then filed petitions in the county court 

pursuant to G. L. c. 211, § 3. They argued that they were 

entitled to release because their pretrial detention without 

counsel for more than seven days violated the standards we 

established for timely appointment of defense counsel for 

indigent criminal defendants in Lavallee v. Justices in the 

Hampden Superior Court, 442 Mass. 228 (2004). The single 

justice reported the defendants' Lavallee claims to the full 

court for resolution.4

We hold that the delay in providing counsel to the 

defendants does not entitle them to release from pretrial 

detention under Lavallee. Lavallee established a protocol to 

secure representation for indigent defendants in the face of a 

systemic shortage of available defense attorneys, carefully 

balancing protection of those defendants' constitutional rights

to counsel with the need to ensure public safety. Although 

Lavallee created a presumptive seven-day limit on an indigent

defendant's pretrial detention without counsel, id. at 246, it 

authorized release of an unrepresented defendant from pretrial 

detention only as a last resort if, at a status hearing before 

the regional administrative justice (RAJ) of the Superior Court, 

the defendant was still unrepresented and the RAJ determined 

 

4 We acknowledge the amicus brief submitted by the 

Massachusetts Association of Criminal Defense Lawyers.
4

that, despite the good faith efforts of the Committee for Public 

Counsel Services (CPCS), there was still no counsel willing and 

available to represent the defendant, id. at 247-248. Lavallee

did not create an automatic right to release from pretrial 

detention for any indigent defendant held more than seven days 

without counsel, and we decline to create such a right in these

cases.

There may be individual cases where, based on all the facts 

and circumstances of the particular case, a judge determines 

that it is necessary and appropriate to release an indigent 

defendant who has been held in pretrial detention without 

counsel. Our ruling here is not intended to foreclose that 

possibility. But the defendants in the cases before us have not 

presented such an individualized argument, and their release now 

would not serve any remedial purpose in any event.

The defendants also argued in their petitions before the 

single justice that, when the Superior Court hearing judge set 

bail in amounts that they could not afford to post, resulting in 

their long-term detention, he violated the standards for bail 

determinations set out in Brangan v. Commonwealth, 477 Mass. 691 

(2017), and in G. L. c. 276, § 58A. With regard to these 

claims, the single justice reported certain questions concerning 

(1) the level of analysis and detail that a judge must provide 

in findings to satisfy the due process requirements that we 
5

established in Brangan when bail is set in an amount that a 

defendant cannot afford; and (2) what differences, if any, there 

might be in the requirements for bail determinations under G. L. 

c. 276, § 58A, and under the bail statutes, G. L. c. 276, §§ 57 

and 58.

In response to the first Brangan question, we hold that a 

judge5 should provide sufficient information to enable the 

parties and the appellate courts to recognize that the judge has 

undertaken the analysis required by our holding in Brangan and 

its codification in the bail statutes. See Brangan, 477 Mass. 

at 707 (when imposing bail amount that will likely result in 

defendant's long-term detention, judge must address why no 

alternative, less restrictive financial or nonfinancial 

conditions will suffice to assure defendant's presence at future 

court proceedings); G. L. c. 276, §§ 57, 58, as amended through

St. 2018, c. 69, §§ 168, 172. To assist judges in this process, 

we have set out infra a series of steps for them to consider 

before imposing a bail that a defendant likely cannot afford to 

post.6

 

5 For simplicity, we use the term "judge" here as a 

shorthand reference that includes the range of judicial officers 

who are authorized to set bail under G. L. c. 276, §§ 57 and 58. 

See Brangan v. Commonwealth, 477 Mass. 691, 693 n.3 (2017).

6 Nothing herein should be interpreted as in any way 

revoking or superseding the special procedures and standards 
6

We reject, however, the defendants' proposals for 

additionally requiring a full evidentiary hearing and proof by

clear and convincing evidence before a defendant may be held on 

unaffordable bail. Given the large number of bail hearings that 

must be conducted under tight time constraints in the 

Commonwealth's courts, and the limited evidence available to 

judges in bail hearings, these additional procedural 

requirements are impractical and would unduly interfere with the 

government's interest in the efficient and economical 

administration of justice. We therefore continue to adhere to 

the standards that we endorsed in Querubin v. Commonwealth, 440 

Mass. 108, 118-120 (2003), where we held that a full-blown 

evidentiary hearing is not needed or required to determine the 

amount of bail that will reasonably assure a defendant's 

presence at trial, and that preponderance of the evidence is the 

appropriate standard of proof. Finally, we hold that, when 

proceeding under G. L. c. 276, § 58A, as under G. L. c. 276, 

§§ 57 and 58, a judge may set bail in an amount beyond what a 

defendant can afford to assure a defendant's appearance at 

future court proceedings, but not to detain the defendant based 

on the defendant's dangerousness. In doing so, however, the 

 

that we established for setting bail and conducting bail reviews 

during the COVID-19 pandemic in Committee for Pub. Counsel 

Servs. v. Chief Justice of the Trial Court, 484 Mass. 431 

(2020), S.C., 484 Mass. 1029 (2020).
7

judge should also meet the same constitutional due process 

requirements that we established in Brangan.

Background. 1. Assignment of counsel for indigent 

defendants in Worcester County. CPCS is statutorily responsible 

for providing defense counsel for eligible defendants who cannot 

afford to retain their own counsel in criminal proceedings in 

the Massachusetts State courts. See G. L. c. 211D, §§ 1, 2B, 5. 

CPCS provides representation through both a public defender 

division (PDD) and a private counsel division. See G. L. 

c. 211D, § 6. Attorneys in the PDD are salaried staff attorneys 

employed by CPCS. See G. L. c. 211D, §§ 1, 6 (a). The private 

counsel division contracts with local organizations to supply 

private defense attorneys, also known as bar advocates, to 

represent indigent defendants who are not represented by CPCS 

staff attorneys. See G. L. c. 211D, § 6 (b). Both CPCS staff 

attorneys and private bar advocates must meet certain benchmarks 

and performance standards before they can represent a defendant 

beyond arraignment in a felony case.

In Worcester County, CPCS contracts with Bar Advocates of 

Worcester County, Inc., to provide private counsel for indigent 

defendants. The Worcester PDD office and the bar advocate 

program are responsible for covering arraignment sessions and 

accepting appointments in criminal cases in the Worcester County 

courts.
8

Although the number of bar advocates in Worcester County 

certified to handle Superior Court cases has not significantly 

diminished in recent years, these attorneys are taking fewer 

Superior Court cases than they did in the past.7 As a result, 

there have been delays in the appointment of counsel, especially 

in cases where the Commonwealth has moved to detain a defendant 

under G. L. c. 276, § 58A. Finding bar advocates who are 

willing to accept appointment in a case involving a § 58A

hearing can be particularly challenging because these hearings 

require intense preparation within a short time frame.8

2. Proceedings below. The charges against the defendants 

arise out of their alleged participation in a home invasion in 

the town of Douglas on July 25, 2018. The defendants were 

 

7 Of fifty-six bar advocates certified to take Superior 

Court cases during the period from July 1 to December 31, 2018, 

one attorney dropped off the panel, eleven attorneys took no 

Superior Court cases, nine took only one or two cases, and 

thirty-three took between three and five cases. Evidence in the 

record suggests that bar advocates have reduced their 

participation for a variety of reasons, including overwork, the 

low rate of compensation, and the availability of more lucrative 

opportunities in private practice.

8 The difficulty has been exacerbated by a significant 

increase in the number of § 58A hearings in the Superior Court

in Worcester County, more than doubling from fifty-four in 2016 

to 111 in 2018. During the period from July 1 to December 31, 

2018, it took an average of four days after a request was 

submitted to the bar advocate program administrator to assign a 

Superior Court certified bar advocate to a defendant, and an 

average of five days after the request to assign a Superior 

Court certified bar advocate to a defendant who was scheduled 

for a § 58A hearing.
9

initially arraigned in the Uxbridge Division of the District 

Court Department on July 27, 2018, where they were represented 

by bar advocates certified to practice in the District Court, 

but not in the Superior Court. The Commonwealth moved to have 

the defendants detained before trial due to their alleged 

dangerousness, pursuant to G. L. c. 276, § 58A. Both defendants 

were represented by their appointed counsel at § 58A hearings in 

the District Court on August 3, 2018, and after those hearings, 

the defendants were found to be dangerous and held without bail.

On September 20, 2018, the defendants were arraigned in the

Superior Court in Worcester County on grand jury indictments 

charging them with breaking and entering in the daytime with the 

intent to commit a felony, putting a person in fear, G. L. 

c. 266, § 17, and related charges. Both defendants were again 

found to be indigent, and Superior Court certified bar advocates 

were appointed to represent them, but only for that day. The 

Commonwealth again moved for both defendants to be detained 

pending trial under G. L. c. 276, § 58A, and a hearing on those 

motions was scheduled for October 5, 2018. In the meantime, the 

defendants continued to be held without bail.

On October 5, 2018, counsel for the Commonwealth appeared 

for the § 58A hearings, ready to proceed, but no defense counsel 

appeared on behalf of either defendant. No attorney had been 

appointed to represent Dymon, and although a bar advocate had 
10

filed an appearance to represent Walsh on October 1, 2018, that 

attorney was not present at the October 5 hearing due to a

miscommunication about the hearing date. The presiding judge 

then ordered the appointment of another bar advocate to 

represent Walsh and the attorney in charge of the Worcester CPCS 

office to represent Dymon. In response, the CPCS attorney in 

charge filed a motion to decline acceptance of the appointment 

and to release Dymon. She stated in the motion that neither she 

nor any of the other PDD attorneys in the Worcester CPCS office 

could take his case because they were either at their maximum 

caseloads or unqualified to handle Superior Court cases, and 

therefore they could not provide Dymon with constitutionally 

effective counsel. The bar advocate assigned to represent Walsh 

joined in that motion and similarly argued that he was too busy 

to take Walsh's case. The presiding judge denied the motion but 

allowed defense counsel to postpone the § 58A hearings so that 

they would have time to prepare.

On October 16, 2018, the defendants, both of whom were 

represented by new counsel, objected to their § 58A hearings

going forward, arguing that their constitutional and statutory 

rights had been violated by their pretrial detention for more 

than seven days without counsel and without a hearing. The 

hearing judge concluded, however, that there had been good cause 

for the continuances of the § 58A hearings to October 16, 2018. 
11

With regard to the Commonwealth's motion to hold the defendants 

in pretrial detention under G. L. c. 276, § 58A, the hearing 

judge concluded that the defendants did not need to be held and 

that certain conditions of release would reasonably assure the 

safety of the community. He set bail at $7,500 for Walsh and 

$5,000 for Dymon. Although the hearing judge recognized that 

these bail amounts might be greater than the amounts that the 

defendants could pay, he concluded that these amounts were 

necessary, in light of the defendants' criminal histories and 

the seriousness of the charges, to assure their appearances at 

future proceedings. The hearing judge also set other conditions 

on the defendants' release, including home confinement with a 

global positioning system ankle bracelet. Neither defendant was 

able to post the required bail, so both defendants remained in 

detention.

The defendants then filed petitions in the county court 

under G. L. c. 211, § 3, challenging their pretrial detention. 

Following a hearing, the single justice issued a decision on 

December 7, 2018, in which he reserved and reported two sets of 

issues for our consideration. He reported the defendants' 

Lavallee claims to the full court, so that we could "decide 

whether these defendants and others like them are held 

unconstitutionally . . . in circumstances like this, and, if so, 
12

what remedy or remedies are appropriate."9 The single justice 

also reported certain legal questions concerning (1) the level 

of detail and analysis required by our decision in Brangan, 477 

Mass. 691, when a judge sets a cash bail that the defendant 

cannot afford; and (2) what differences, if any, there might be 

in the requirements for a judge's bail determination under G. L. 

c. 276, §§ 57 and 58, as was the case in Brangan, and a bail 

determination made in the context of a dangerousness hearing 

under G. L. c. 276, § 58A.10

Discussion. 1. Lavallee claims. In Lavallee, where we 

addressed issues arising out of a similar shortage of defense 

counsel in Hampden County in 2004, we established a protocol to 

protect the rights of indigent defendants when a lack of 

 

9 To assist the court in addressing the defendants' claims, 

the single justice asked the parties to provide further factual 

information on various topics relating to the assignment of 

counsel for indigent defendants in Worcester County, especially 

in cases involving hearings under G. L. c. 276, § 58A. The 

single justice subsequently granted the Commonwealth's motion to 

remand the case to the Superior Court to hold an evidentiary 

hearing and make factual findings on these topics.

10 Apart from reporting these legal questions, the single 

justice retained jurisdiction over the defendants' conditions of 

release claims, which he remanded to the Superior Court hearing 

judge for a more detailed explanation of the reasoning behind 

the bail amounts and other conditions of release that the 

hearing judge set for the defendants. Upon receiving that 

explanation from the hearing judge, the single justice denied 

the defendants' conditions of release claims. The defendants' 

appeals from that ruling are currently pending before this court 

in separate dockets.
13

available defense attorneys interferes with the prompt 

appointment of counsel. We ordered the clerk-magistrates of the 

Superior Court in Hampden County and the Hampden County 

divisions of the District Court to compile a weekly list of all 

unrepresented criminal defendants and forward it to the RAJs for 

the Superior Court and the District Court divisions, the 

district attorney, the Attorney General, and the chief counsel 

for CPCS. We then provided that the Superior Court RAJ should 

schedule a prompt status hearing for each unrepresented 

defendant who had been held for more than seven days, or whose 

case had been pending for more than forty-five days. If the 

defendant was still unrepresented as of the time of the hearing, 

and if the Superior Court RAJ determined that CPCS had made a 

good faith effort to secure representation and that no counsel 

was willing and available to represent a defendant, then the 

Superior Court RAJ was required to order (1) release on personal 

recognizance of any defendant held in lieu of bail or on 

preventive detention for more than seven days, subject to 

probationary conditions under G. L. c. 276, § 87, which could be 

ordered without the defendant's consent; and (2) dismissal of 

the charges without prejudice, until such time as counsel was 

made available, with respect to any defendant facing a felony 

charge for more than forty-five days without counsel, or a 

misdemeanor or municipal ordinance violation charge for more 
14

than forty-five days without counsel, unless a judge had 

declared an intention to impose no sentence of incarceration 

pursuant to G. L. c. 211D, § 2A. See Lavallee, 442 Mass. at 

247-249.

The defendants in the present cases urge us to extend 

Lavallee by adopting a universal rule that (a) any indigent 

defendants who are detained pending a § 58A hearing, or held on 

cash bail, for whom counsel has not been appointed within seven 

days after their detention commenced, should be ordered 

released; and (b) any indigent defendants who have been released 

before trial on personal recognizance or after posting a cash 

bail, for whom counsel has not been appointed within forty-five 

days after their arraignment, should have their cases dismissed 

without prejudice. We decline to do so.

We recognize that Lavallee, 442 Mass. at 246, established a 

presumptive seven-day limit on the pretrial detention of an 

unrepresented indigent defendant, and a presumptive forty-fiveday limit on the pendency of charges against an unrepresented 

indigent defendant. But there were sound reasons why the 

protocol we established in Lavallee did not directly authorize 

trial judges to automatically release unrepresented indigent 

defendants on the basis of those standards. We noted in our 

opinion that we shared the district attorney's concern about 

releasing or dismissing cases against persons who were charged 
15

with serious offenses, see id. at 244-245, and observed that it 

was "[o]ur duty . . . to remedy an ongoing violation of a 

fundamental constitutional right to counsel consistently with 

the government's legitimate right to protect the public's

safety," id. at 246.

Toward that end, the Lavallee protocol broadly disseminated

information about unrepresented defendants, allowed additional 

time to secure counsel for them before they were released or 

their charges were dismissed, and authorized the Superior Court 

RAJ to impose probationary conditions on defendants without 

their consent if they were released from pretrial detention. By 

requiring the clerk-magistrates to send lists of unrepresented 

defendants to the district attorney, Attorney General, chief 

counsel for CPCS, and the RAJs, we created a system for tracking 

the impact of the shortage of defense counsel and ensured that 

officials with significant oversight responsibility in the 

criminal justice system were aware of the problem and could take 

appropriate steps to correct it or mitigate its effects. By 

providing a status hearing before the Superior Court RAJ, we 

created a final opportunity for CPCS to secure counsel for 

unrepresented defendants and, to the extent necessary, to triage 

assignments so as to provide counsel to those accused of the 

most serious crimes. By empowering the Superior Court RAJ to 

release unrepresented defendants from pretrial detention or to 
16

dismiss charges against them, we ensured that those decisions 

would be made with consistency and with knowledge of their 

collective impact on the criminal justice system. And by 

granting the Superior Court RAJ, as part of the Lavallee

protocol, the extraordinary power to impose probationary 

conditions on defendants without their consent if they were 

released from pretrial detention, we enabled the RAJ to take 

steps to supervise their release.

The Lavallee protocol thus promoted a systemic, coordinated

response to the shortage of defense counsel that could 

appropriately balance the rights of indigent defendants with the 

protection of public safety. The benefits of the Lavallee

protocol would be lost if we required trial court judges in all 

cases to release any indigent defendant who has been detained 

without counsel for more than seven days, or to dismiss the 

charges against any indigent defendant who has been 

unrepresented for more than forty-five days. We also note that 

we have now adopted a procedure for promptly determining whether 

invocation of the Lavallee protocol is necessary when a 

substantial number of indigent defendants are unrepresented due 

to a shortage of defense counsel. See Carrasquillo v. Hampden 

County Dist. Courts, 484 Mass. 367, 389-391 (2020).

Our ruling here is not intended to prevent judges from 

deciding in an individual case, based on all the facts and 
17

circumstances of that case, that it is necessary and appropriate 

to release an indigent defendant who has been held in pretrial 

detention without counsel, or to dismiss the charges without 

prejudice against an indigent defendant who has been 

unrepresented. In an individual case, the lapse of the time 

limits we established in Lavallee is a significant factor to be 

considered by the judge, but it does not automatically entitle 

the defendant to release or dismissal of charges. See 

Carrasquillo, 484 Mass. at 391 & n.31.

In the cases before us, however, the defendants have not 

argued for their release based on particular aspects of their 

situations apart from their proposed general rule that 

unrepresented indigent defendants should be automatically 

released from pretrial detention if they are held without 

counsel for more than seven days. Moreover, no remedial purpose 

would be served by ordering their release now.

Lavallee's provision for release of defendants held in 

pretrial detention for more than seven days without counsel was 

intended to address two issues: (a) the unfairness of 

subjecting unrepresented defendants to a deprivation of liberty 

through bail hearings or § 58A hearings, see Lavallee, 442 Mass. 

at 233-234; and (b) the prejudice to unrepresented defendants' 

pretrial preparation that results when they are "held in lieu of 

bail or under an order of preventive detention," and are 
18

consequently "virtually powerless to obtain a lawyer on their

own or to begin working on their own defense," id. at 236. 

Here, in contrast with the petitioning defendants in Lavallee, 

see id. at 230, 232, the defendants were represented at their 

§ 58A hearings in both the District Court and the Superior 

Court, so there was no violation of their right to counsel at 

that stage. And because the defendants have been represented by 

counsel ever since their § 58A hearings in the Superior Court, 

there is no reason to release them now to enable them to obtain 

a lawyer or to facilitate their own pretrial preparation. See 

id. at 248 (authorizing release of unrepresented defendant from 

pretrial detention only if, at time of status hearing before 

RAJ, "there is still no counsel willing and available to 

represent [the] defendant"). Accordingly, we conclude that the

delay in providing counsel to the defendants does not entitle

them to release from pretrial detention under Lavallee.

2. Brangan questions. In Brangan, 477 Mass. at 697-700, 

we held that a judge must consider a defendant's financial 

resources as a factor when setting a bail amount. We further 

concluded that, although setting unaffordable bail is not 

necessarily unconstitutional, see id. at 700-702, "where a judge 

sets bail in an amount so far beyond a defendant's ability to 

pay that it is likely to result in long-term pretrial detention, 

it is the functional equivalent of an order for pretrial 
19

detention, and the judge's decision must be evaluated in light 

of the same due process requirements applicable to such a 

deprivation of liberty," id. at 705. Among other requirements, 

we held that,

"where, based on a defendant's credible representations and 

any other evidence before the judge, it appears that the 

defendant lacks the financial resources to post the amount 

of bail set by the judge, such that it will likely result 

in the defendant's long-term pretrial detention, the judge 

must provide findings of fact and a statement of reasons 

for the bail decision, either in writing or orally on the 

record. The statement must confirm the judge's 

consideration of the defendant's financial resources, 

explain how the bail amount was calculated, and state 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." 

(Footnotes omitted.)

Id. at 707.

Here, the single justice posed the following questions

seeking further guidance concerning the findings of fact and 

statement of reasons required by Brangan:

1. "Can, and should, the full court provide any further 

guidance, beyond what it has already said in Brangan, for 

trial court judges, the bar, and single justices of this 

court as to the level of analysis and detail that must be 

reflected in the judge's statement when a judge sets an 

unaffordable cash bail? Must the judge itemize the 

defendant's resources, articulate a detailed factor-byfactor analysis as to why the amount of the bail is 

nevertheless appropriate, and specify each less restrictive 

alternative that has been considered and why each has been 

rejected -- or is it sufficient that the judge's statement 

indicates in a more general way the judge's consideration 

of the relevant factors and the animating rationale for his 
20

or her determination? In short, what level of detail is 

required for the statement?"

2. "What differences, if any, might there be in the 

requirement for a judge's bail determination (and the 

statement of reasons he or she must provide) under G. L. 

c. 276, §§ 57 and 58, as was the case in Brangan, and a 

bail determination made in the context of a dangerousness 

hearing pursuant to G. L. c. 276, § 58A, as we have here? 

For example, may a judge set a cash bail that a defendant 

cannot post under G. L. c. 276, § 58A (3)?"

a. Application of procedural due process balancing test. 

The single justice's first question concerning "the level of 

analysis and detail that must be reflected in the judge's 

statement" when setting an unaffordable bail is fundamentally a 

question about the degree of procedural due process that a 

defendant must receive. Therefore, in answering this question, 

we "must balance the interests of the individual affected, the 

risk of erroneous deprivation of those interests and the 

government's interest in the efficient and economic 

administration of its affairs." Josh J. v. Commonwealth, 478 

Mass. 716, 722 (2018), quoting Paquette v. Commonwealth, 440 

Mass. 121, 131 (2003), cert. denied, 540 U.S. 1150 (2004).

i. Interests of the defendant. Whenever bail is set in an 

amount that a defendant cannot afford to post, that defendant 

faces a total deprivation of liberty, a fundamental right, 

through pretrial detention. See Brangan, 477 Mass. at 702-703, 

705. Although this deprivation of liberty is only "temporary" -

- until a trial takes place, the defendant pleads guilty, or the 
21

case is dismissed -- it can nevertheless be lengthy. In 

Brangan, the defendant had been held on bail he could not afford 

for more than three and one-half years when we issued our 

decision. See id. at 693. In the present consolidated cases, 

the defendants have been held on bail since October 16, 2018.

This temporary deprivation of liberty can have severe and 

long-lasting collateral consequences. The United States Supreme 

Court has aptly catalogued some of the negative effects of 

pretrial detention:

"The time spent in jail awaiting trial has a detrimental 

impact on the individual. It often means loss of a job; it 

disrupts family life; and it enforces idleness. Most jails 

offer little or no recreational or rehabilitative programs. 

The time spent in jail is simply dead time. Moreover, if a 

defendant is locked up, he is hindered in his ability to 

gather evidence, contact witnesses, or otherwise prepare 

his defense. Imposing those consequences on anyone who has 

not yet been convicted is serious. It is especially 

unfortunate to impose them on those persons who are 

ultimately found to be innocent." (Footnotes omitted.)

Barker v. Wingo, 407 U.S. 514, 532-533 (1972). See Brangan, 477 

Mass. at 709 n.23 ("Pretrial detention disrupts a defendant's 

employment and family relationships, with often tragic 

consequences").

ii. Risk of erroneous deprivation. In considering the 

risk that a bail decision will erroneously deprive a defendant 

of liberty when it is unnecessary to assure the defendant's 

future appearance in court, we recognize that bail decisions 

often involve difficult judgment calls made under challenging 
22

circumstances. Judges making bail decisions must carefully 

balance the defendant's liberty interest against the

government's interest in assuring the defendant's return to 

court, taking into account a range of statutory factors. They 

usually have to make these decisions based only on the limited 

information about the defendant that they can glean from the 

representations of counsel, a police report, a court activity 

record information (CARI) report, a warrant management system 

report, and the indigency intake form filled out by the 

defendant with the help of a probation officer to determine 

whether a defendant is eligible for a court-appointed attorney. 

And judges must often make bail decisions quickly, while 

handling a crowded docket. Especially under these 

circumstances, determining whether bail is necessary and, if so, 

in what amount, can be a challenging task in many cases.

In theory, the risk that a defendant will be erroneously 

deprived of liberty in the bail-setting context can take two

forms. First, the judge may overestimate the amount of bail 

that a defendant can reasonably afford. As a result, the judge 

may set a bail amount that is not necessarily intended to result 

in pretrial detention, but in fact has that effect. Second, the 

judge may overestimate the amount of bail that is necessary to 

reasonably assure a defendant's presence at future proceedings, 

choosing an amount that is more than a defendant can afford when 
23

in fact an affordable amount, or other nonfinancial conditions 

of release, would suffice. But in actual practice in a 

particular case, it can be difficult to draw these distinctions. 

And given the discretionary nature of bail decisions and the 

many factors that judges may consider in reaching those 

decisions, it is hard to assess in the aggregate whether bail 

decisions are "correct" or "incorrect" and how often persons are 

erroneously held on bail.

According to recent Trial Court data for cases arraigned 

and disposed of in the District Court and Boston Municipal Court 

during the seventeen months after our decision in Brangan,

defendants were released on personal recognizance or with 

nonfinancial conditions in the overwhelming majority of cases -–

80.2 percent.11 Defendants were held without bail in a very 

small percentage of these cases –- 3.7 percent.12 Bail was set 

in the remaining 16.1 percent of cases, with defendants being 

released on bail in 9.2 percent of all cases and held on bail in 

6.9 percent of all cases.13 The cohort of persons held on bail 

 

11 Massachusetts Trial Court, Department of Research and 

Planning, Pre-Trial Release Decisions: Pre and Post Brangan v. 

Commonwealth, at 1-2 (May 7, 2019) (Pre-Trial Release 

Decisions), https://www.mass.gov/doc/pretrial-releasedecisions/download [https://perma.cc/7TVJ-URG8].

12 Pre-Trial Release Decisions, supra at 2.

13 Pre-Trial Release Decisions, supra at 2.
24

is thus relatively small when considered as a percentage of all 

cases. But it looms larger when considered as a percentage of 

those cases where bail was set. During the seventeen months 

after our decision in Brangan, defendants were held on bail in 

42.7 percent of the cases where bail was imposed as a condition 

of release in the District and Boston Municipal Courts.14 If 

pretrial detention is the outcome in more than two out of every 

five cases where bail is set, then it appears that too often one 

of bail's purposes -- "preserv[ing] the liberty of the accused" 

pending trial -- is not being achieved. Brangan, 477 Mass. at 

692.

iii. Government interests. The government has a 

legitimate and compelling interest in assuring that persons 

charged with criminal offenses return to court and appear at 

trial. See Querubin, 440 Mass. at 112-116. The government also 

has an important interest in ensuring that bail decisions are 

made efficiently and economically. The volume of bail hearings 

is enormous. According to Trial Court data, more than 150,000 

criminal cases were arraigned and disposed of in the District 

and Boston Municipal Courts during the seventeen months after 

our decision in Brangan. Persons were released on bail or held 

subject to bail in approximately sixteen percent of those cases 

 

14 Pre-Trial Release Decisions, supra at 3.
25

-- a total of more than 24,000 cases.15 Adopting procedural 

requirements for bail hearings that are too onerous could wreak 

havoc with the efficient processing of these cases.

b. Steps to be considered in setting bail. Taking into 

account the fundamental liberty interests at stake, the serious 

collateral consequences of pretrial detention for defendants and 

their families, and the significant percentage of bail orders 

that result in pretrial detention, we conclude that some 

clarification of the necessary procedural protection would be 

useful to ensure that the due process requirements we 

established in Brangan are effective. But any procedures we 

adopt must not unduly burden the efficient and economical 

administration of justice. Accordingly, we seek to steer a 

middle course. On the one hand, we conclude that when a judge 

sets a bail that a defendant cannot afford to post, the judge 

must do more than articulate the animating rationale for that 

determination and indicate in a general way that he or she has 

considered the relevant factors. But neither do we require the 

judge to articulate a detailed factor-by-factor analysis as to 

why the amount of the bail is appropriate, or to specify each 

less restrictive alternative that has been considered and why 

each has been rejected. Rather, we hold that a judge need only 

 

15 See Pre-Trial Release Decisions, supra at 1-2.
26

provide sufficient information to enable the parties and the 

appellate courts to recognize that the judge has undertaken the 

analysis required by our holding in Brangan and its codification 

in the bail statutes. Cf. Pinney v. Commonwealth, 484 Mass. 

1003, 1005-1006 (2020) (where defendant was charged with murder 

in first degree and judge imposed $250,000 cash bail that 

defendant could not afford, judge's findings and reasons were 

sufficient to satisfy due process where it was clear from record 

that judge considered relevant factors and engaged in required 

individualized bail determination); A Juvenile v. Commonwealth, 

480 Mass. 1012, 1014 (2018) ("where a bail determination is 

likely to lead to pretrial detention, a judge making that 

determination . . . must make findings . . . demonstrat[ing]

that [he or she] 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"). The judge's statement need not be lengthy, and it may be 

written or oral, as long as it is on the record and provides 

this information. See Brangan, 477 Mass. at 708. To assist 

judges in undertaking this analysis, we set out a series of 

steps for them to consider before imposing a bail that a 

defendant cannot afford.
27

i. Policy of limiting pretrial restrictions on liberty. 

As a general principle, decisions about pretrial release and 

detention should be governed by "the Commonwealth's policy of 

limiting pretrial restrictions on liberty." Commonwealth v. 

Perito, 417 Mass. 674, 678 (1994). "[D]efendants should be 

burdened with the fewest restrictions on their pretrial liberty 

that will adequately assure their presence at trial." Id., 

quoting Reporters' Notes to Mass. R. Crim. P. 6, Mass. Ann. 

Laws, Rules of Criminal Procedure, at 94 (Law. Coop. 1979). The 

roots of this policy reach back to Massachusetts's earliest days 

as a colony, as expressed in The Body of Liberties (1641): "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 . . . ." Brangan, 477 Mass. at 692.

The policy of limiting pretrial restrictions on liberty is 

based in part on constitutional principles. Because liberty and 

freedom from physical restraint are fundamental rights protected 

by the Fourteenth Amendment to the United States Constitution 

and arts. 1, 10, and 12 of the Massachusetts Declaration of 

Rights, the "strict scrutiny" test of substantive due process 

requires that governmental restraints on liberty must be 

narrowly tailored to further a legitimate and compelling 

governmental interest. See United States v. Salerno, 481 U.S. 
28

739, 746 (1987); Sharris v. Commonwealth, 480 Mass. 586, 594-595 

(2018); Josh J., 478 Mass. at 721; Brangan, 477 Mass. at 702-

703.16 Further, "[e]ven where government action survives 

substantive due process scrutiny, procedural due process 

protections require that the governmental action be implemented 

in a fair manner." Josh J., supra at 722, citing Paquette, 440 

Mass. at 131. Accordingly, we have observed that the 

government's legitimate and compelling interest in assuring a 

defendant's presence at trial can justify pretrial detention 

"only 'in carefully circumscribed circumstances and subject to 

quite demanding procedures.'" Brangan, supra at 705, quoting 

Mendonza v. Commonwealth, 423 Mass. 771, 790 (1996).17

ii. Presumption of release on personal recognizance. In 

accord with the Commonwealth's policy of limiting pretrial 

restrictions on liberty, the "preferred disposition" under our 

 

16 We have sometimes added to this test the further 

requirement that the challenged statute or other government 

restriction must "be the least restrictive means available to 

vindicate" the government's interest. Sharris, 480 Mass. at 

598, quoting Commonwealth v. Weston W., 455 Mass. 24, 35 (2009).

17 For example, in Aime v. Commonwealth, 414 Mass. 667 

(1993), we held that 1992 amendments to G. L. c. 276, § 58, 

which allowed judges to consider a defendant's dangerousness in 

setting bail, did not meet the due process requirements of the 

Fourteenth Amendment because they "essentially grant[ed] the 

judicial officer unbridled discretion to determine whether an 

arrested individual is dangerous" and lacked adequate procedures 

"'designed to further the accuracy' of the judicial officer's 

determination." Id. at 682, quoting Salerno, 481 U.S. at 751.
29

"detailed general bail statute," G. L. c. 276, § 58, is release 

on personal recognizance without surety. Commonwealth v. Dodge, 

428 Mass. 860, 865 (1999). See G. L. c. 276, § 58 (providing 

that judge or other authorized officer "shall admit such person 

to bail on his [or her] personal recognizance without surety 

unless said justice . . . determines, in the exercise of his [or 

her] discretion, that such a release will not reasonably assure 

the appearance of the person before the court").18 "Our 

 

18 Although the same language does not appear in G. L. 

c. 276, § 57, which governs bail proceedings in the Superior 

Court, see Brangan, 477 Mass. at 697, we have previously 

indicated that the presumption of release on personal 

recognizance is equally applicable under § 57. See Commonwealth

v. Hampe, 419 Mass. 514, 518 n.3 (1995) (citing G. L. c. 276, 

§ 57, as well as § 58, in stating that "[a] person under arrest 

has a right to a hearing on admission to bail with a presumption 

of release on personal recognizance"). We also note that § 57 

provides that "[a]ll persons authorized to take bail under this 

section shall be governed by the rules established by the 

supreme judicial or superior court." Moreover, the Superior 

Court's own rules (albeit for persons authorized to take bail 

out of court) provide that "[a]ny person charged with an offense 

other than an offense punishable by death, or for any offense on 

which a warrant of arrest has been issued by the Superior Court, 

is required by law to be released on his personal recognizance 

pending trial unless the person setting the terms of release 

determines, in the exercise of his discretion, that such a 

release will not reasonably assure the appearance of the person 

as required." Rule 3 of the Rules of the Superior Court 

Governing Persons Authorized to Admit to Bail Out of Court

(2014). See also Trial Court Guidelines for Pretrial Conditions 

of Release, at 1 (Nov. 2016) ("the legal presumption for all 

criminal charges excluding capital cases is that an individual 

will be released on personal recognizance"). To the extent that 

dictum in Serna v. Commonwealth, 437 Mass. 1003, 1003 n.1 

(2002), may suggest that release on personal recognizance 
30

Legislature intended § 58 to protect the rights of the defendant 

by establishing a presumption that he or she will be admitted to 

bail on personal recognizance without surety . . . ." Delaney

v. Commonwealth, 415 Mass. 490, 495 (1993).

The presumption that the defendant is entitled to release 

on personal recognizance without surety may be rebutted, 

however, by a history of prior court defaults19 or evidence that 

the defendant poses a flight risk, or the other factors listed 

in the bail statutes:

"the nature and circumstances of the offense charged, the 

potential penalty the person faces, the person's family 

ties, financial resources and financial ability to give 

bail, employment record and history of mental illness, his 

[or her] reputation and the length of residence in the 

community, his [or her] record of convictions, if any, any 

illegal drug distribution or present drug dependency, any

flight to avoid prosecution or fraudulent use of an alias 

or false identification, any failure to appear at any court 

proceeding to answer to an offense, whether the person is 

on bail pending adjudication of a prior charge, whether the 

acts alleged involve abuse . . . , whether the person has 

any history of [abuse prevention] orders issued against him 

[or her] . . . , whether he [or she] is on probation, 

 

without surety is not available under G. L. c. 276, § 57, we 

reject it.

19 We note, however, that not all defaults necessarily 

indicate a willful failure to appear. A special commission 

established by the Legislature recently recommended developing a 

system for differentiating between "no show" defaults and 

defaults entered due to a defendant's late appearance the same 

day, failure to pay a fine on time, or missing a court date 

because he or she was being held in another county. See Final 

Report of the Special Commission to Evaluate Policies and 

Procedures Related to the Current Bail System, at 20 (Dec. 31, 

2019), https://d279m997dpfwgl.cloudfront.net/wp/2020/01/0102

_bail-reform-report.pdf [https://perma.cc/ZR3X-Q3FW].
31

parole, or other release pending completion of sentence for 

any conviction, and whether he [or she] is on release 

pending sentence or appeal for any conviction."

G. L. c. 276, § 58. See G. L. c. 276, § 57.

iii. Nonfinancial conditions of release. If the 

Commonwealth rebuts the presumption of release on personal 

recognizance, the judge should consider whether there are 

nonfinancial conditions of release that will adequately assure 

the defendant's appearance before the court. As we noted in 

Brangan, 477 Mass. at 709 n.23, "[r]esearch indicates that 

alternatives to cash bail and secured bonds, such as unsecured 

bonds, pretrial supervision, and court notification systems, may 

be just as effective in assuring that a defendant appears at 

future court proceedings."

The judge may impose nonfinancial conditions of release 

that are related to the nature of the charges or the goal of 

assuring the defendant's return to court, or both, under G. L. 

c. 276, §§ 57 and 58. If the judge "determines it to be 

necessary, the defendant may be ordered to abide by specified 

restrictions on personal associations or conduct including, but 

not limited to, avoiding all contact with an alleged victim of 

the crime and any potential witness or witnesses who may testify 

concerning the offense, as a condition of release." G. L. 

c. 276, § 58. Or, where the defendant has been charged with 

certain crimes involving domestic abuse, the judge "may impose 
32

conditions on a person's release in order to ensure the 

appearance of the person before the court and the safety of the 

alleged victim, any other individual or the community." Id.

See G. L. c. 276, § 57; G. L. c. 276, § 42A.

For our purposes here, it is particularly important to note 

that the Legislature has established several nonfinancial 

alternatives to bail. For example, the court may order the 

defendant to participate in a pretrial services program at the 

office of community corrections (OCC), in lieu of bail or as a 

condition of release consistent with G. L. c. 276, §§ 57, 58,

and 58A, pursuant to G. L. c. 211F, § 3A.20 With the defendant's 

consent, the court may also order the defendant to participate 

in a treatment program offered by OCC in lieu of bail or as a 

condition of release.21 In addition, pursuant to G. L. c. 276, 

§ 87, the court may place the defendant on pretrial conditions 

 

20 "Participation in a pretrial services program 

[administered by the office of community corrections] may be 

ordered by the court, in lieu of bail or as a condition of 

release consistent with [G. L. c. 276, §§ 57, 58, and 58A]. The 

court may dictate the duration and conditions of the pretrial 

services program." G. L. c. 211F, § 3A (a), inserted by 

St. 2018, c. 72, § 12. See G. L. c. 211F, § 1, as amended 

through St. 2018, c. 72, § 8.

21 "Participation in a community corrections program 

pursuant to [G. L. c. 211F] may be ordered by the court, in lieu 

of bail, or as a condition of release; provided, however, that 

the defendant shall consent to such participation." G. L. 

c. 276, §§ 57, 58, 58A, as amended through St. 2018, c. 69, 

§§ 169, 173, 175.
33

of release that are supervised by the probation service if the 

defendant consents.22 The probation service has also begun a 

pretrial services initiative that includes the use of text 

messaging to remind defendants of court dates, pursuant to G. L. 

c. 276, § 99G.

iv. Setting bail. If the judge determines that 

nonfinancial conditions of release are inadequate and that bail 

is necessary to assure the defendant's appearance before the 

court, then the judge must consider the defendant's financial 

resources in setting the amount of bail. See G. L. c. 276, § 57

("bail shall be set in an amount no higher than what would 

reasonably assure the appearance of the person before the court 

after taking into account the person's financial resources"); 

G. L. c. 276, § 58 (same); Brangan, 477 Mass. at 698-700 

(discussing common-law and constitutional principles that 

mandate consideration of a defendant's financial resources in 

setting bail).

 

22 See Commonwealth v. Preston P., 483 Mass. 759, 762-763 

(2020) (distinguishing between pretrial probation under G. L. 

c. 276, § 87, and pretrial conditions of release that are 

supervised by probation service under § 87). Of course, the 

court also has the power to impose nonfinancial conditions of 

release pursuant to G. L. c. 276, §§ 57 and 58, as discussed 

supra. Unlike pretrial conditions of release under § 87, 

conditions of release under §§ 57 and 58 may be ordered without 

the defendant's consent, except when the court orders 

participation in a community corrections treatment program. See 

note 21, supra.
34

To the extent possible, the judge should try to determine 

what amount the defendant can reasonably afford to post. As an 

initial step, the judge can simply ask the defendant or defense 

counsel how much the defendant can reasonably afford to post. 

See Brangan, 477 Mass. at 707 n.21 (referencing "what a 

defendant represents that he can pay" as baseline for

establishing amount that defendant can reasonably afford). But 

the judge is not bound by this representation, of course, and 

may independently decide how much the defendant can reasonably 

afford to post based upon the probation service report, which

determines whether a defendant qualifies as indigent for courtappointed counsel, and any other evidence before the court. See 

id. ("The judge also is not bound by a defendant's 

representation as to what bail he can reasonably afford, and may 

indicate that she is not convinced, based on the record, that 

the defendant cannot post bail in the amount set by the judge"); 

id. at 707 n.20 ("consideration of a defendant's financial 

resources may be facilitated by reviewing the report prepared by 

the probation department to determine whether a defendant 

qualifies as indigent for court-appointed counsel"); Mass. R. 

Crim. P. 7 (a) (3) and 7 (b) (2), as appearing in 461 Mass. 1501 

(2012); S.J.C. Rule 3:10, § 5 (a), as appearing in 475 Mass. 

1301 (2016); G. L. c. 211D, § 2A (a)-(c). In deciding how much 

bail the defendant can afford, as in calculating a defendant's 
35

ability to pay restitution, the judge should consider "the 

financial resources of the defendant, including income and net 

assets, and the defendant's financial obligations, including the 

amount necessary to meet minimum basic human needs such as food, 

shelter, and clothing for the defendant and his or her 

dependents." Commonwealth v. Henry, 475 Mass. 117, 126 (2016).

We recognize that it will often be difficult to ascertain 

the amount of bail that a defendant can reasonably afford given 

the limited information available to the court and, in some 

cases, the possibility that the defendant may have unstated or 

illegal sources of income. But it is worthwhile for the judge

to try to determine this amount, to the extent it is possible, 

so that the judge will be aware of whether the bail ultimately 

imposed will likely result in the defendant's pretrial 

detention.

The judge should then determine the amount of bail that is 

necessary to assure the defendant's appearance. This amount may 

be more than what the defendant can reasonably afford. See 

G. L. c. 276, § 57 ("a higher than affordable bail may be set if 

neither alternative nonfinancial conditions nor a bail amount 

which the person could likely afford would adequately assure the 

person's appearance before the court"); G. L. c. 276, § 58 

(same); Brangan, 477 Mass. at 701 ("Bail that is beyond a 

defendant's reach is not prohibited"). But if the judge sets 
36

bail in an amount that is more than the defendant can afford, 

the judge must also

"provide written or orally recorded findings of fact and a 

statement of reasons as to why, under the relevant 

circumstances, neither alternative nonfinancial conditions 

nor a bail amount that the person can afford will 

reasonably assure his or her appearance before the court, 

and further, must explain how the bail amount was 

calculated after taking the person's financial resources 

into account and why the commonwealth's interest in bail or 

a financial obligation outweighs the potential adverse 

impact on the person, their immediate family or dependents 

resulting from pretrial detention."

G. L. c. 276, § 58, as amended through St. 2018, c. 69, § 172.

See G. L. c. 276, § 57, as amended through St. 2018, c. 69, 

§ 168. A judge may satisfy this requirement by reviewing,

either in writing or orally on the record, the particular 

circumstances and factors that have led the judge to conclude 

that the presumption of release on personal recognizance has 

been rebutted, that nonfinancial conditions and a lesser bail 

amount would be inadequate, and that the Commonwealth's interest 

in this bail amount outweighs the potential adverse impact of 

pretrial detention on the defendant and his or her immediate 

family or dependents.23 Cf. Pinney, 484 Mass. at 1004, 1004-1006

 

23 For example, an oral statement on the record such as the 

following is more than sufficient:

"Taking into account the presumption of recognizance that 

has been rebutted in this case and the conditions of bail 

that I will impose, I will impose a bail of $____ cash. 

After a review of the defendant intake sheet and the 
37

(judge's findings and reasons for imposing bail that defendant 

could not afford satisfied due process, where defendant was 

charged with murder in first degree and judge weighed, among 

other factors, defendant's risk of flight, previous record, 

finances, work history, and family circumstances, as well as 

nature of charges and strength of Commonwealth's case); A 

Juvenile, 480 Mass. at 1014-1015 (judges provided sufficient 

detail to demonstrate that there was no abuse of discretion in 

setting bail that juvenile could not afford where judges noted 

that juvenile was in default and had essentially fled from 

custody when he was arrested on new charges, and that there was 

no reasonable alternative to bail). In accord with the statute, 

the judge should also explain, at least in general terms, how 

the bail amount was determined.

 

proffer of the defendant through counsel and the argument 

of counsel, I find that the defendant cannot reasonably 

afford to make that bail. Recognizing that the defendant's 

financial ability to make bail and the defendant's 

financial conditions are factors I must consider in setting 

bail based on the nature and circumstances of this charge 

of indecent assault and battery on a child under fourteen, 

and the defendant's alleged attempts to coerce and 

manipulate this alleged victim not to disclose the 

defendant's alleged misconduct, the fact that the defendant 

has eight appearance defaults on six separate charges, his 

violations of chapter 209A restraining orders, which like a 

posted bail, are orders of the court, the strength of the 

Commonwealth's case, and that the defendant has numerous 

other prior convictions, including an escape, and 

convictions for drug distribution, I find that the need for 

this bail amount exceeds the adverse impact on the 

defendant and his family."
38

c. Other proposed procedural protections. The defendants 

further propose that we should adopt additional procedural 

protections before a court can impose an unaffordable bail on a 

defendant. They argue that we should require a full evidentiary 

hearing, at which the defendant has the right to testify, to 

present witnesses, and to cross-examine witnesses, as is 

required when the Commonwealth moves to have a defendant held 

for dangerousness under G. L. c. 276, § 58A. The defendants 

also urge us to adopt "clear and convincing evidence" as the 

appropriate standard of proof for the statutory findings that a 

judge must make before imposing an unaffordable bail. See G. L. 

c. 276, §§ 57, 58. We decline to adopt these additional 

requirements, based on principles of stare decisis and our

concern that these requirements would place unrealistic burdens

on judges.

In Querubin, where we considered the due process 

requirements that should apply when a defendant is held without 

bail due to a risk of flight, we adopted due process standards

that conflict with the defendants' proposals. We concluded that

a "full-blown evidentiary hearing that includes the right to 

present and cross-examine witnesses is not needed or required"

for a bail proceeding, even where the defendant is held without 

bail, although "such a hearing, or some variation, may be held 

in the discretion of the judge when the circumstances of a 
39

particular case warrant." Querubin, 440 Mass. at 118. We also 

held that preponderance of the evidence is the appropriate 

standard for determining whether a defendant poses a flight risk 

and whether any condition or combination of conditions will 

reasonably assure the defendant's appearance, following Federal 

decisions under the Federal Bail Reform Act of 1984, 18 U.S.C. 

§ 3142. See id. at 119-120. More recently, we considered the 

standards for bail decisions when a defendant has been charged 

with murder in the first degree, and we followed Querubin in 

holding that, in such a case, a full evidentiary hearing is not 

required and that pretrial detention without bail is appropriate 

where the judge concludes, based on a preponderance of the 

evidence, that it is necessary to assure the defendant's 

appearance at future court proceedings. Vasquez v. 

Commonwealth, 481 Mass. 747, 748, 758 (2019). Given that we

concluded in these cases that a nonevidentiary hearing and proof 

by a preponderance of the evidence are sufficient safeguards 

even where a defendant is being held without bail to assure his 

future appearance, it would be incongruous for us to embrace a 

higher standard where a defendant's pretrial detention results 

from the imposition of an unaffordable bail.

"Adherence to the principle of stare decisis provides 

continuity and predictability in the law . . . ." Commonwealth

v. Ruiz, 480 Mass. 683, 694 (2018), quoting Stonehill College v. 
40

Massachusetts Comm'n Against Discrimination, 441 Mass. 549, 562, 

cert. denied sub nom. Wilfret Bros. Realty Co. v. Massachusetts 

Comm'n Against Discrimination, 543 U.S. 979 (2004). We 

acknowledge that "the principle is not absolute," Ruiz, supra, 

quoting Stonehill College, supra, and that "[t]he force of stare 

decisis is at its nadir in cases concerning procedural rules 

that implicate fundamental constitutional provisions," Doe, Sex 

Offender Registry Bd. No. 380316 v. Sex Offender Registry Bd., 

473 Mass. 297, 301 (2015), quoting Alleyne v. United States, 570 

U.S. 99, 116 n.5 (2013). But neither should we upset settled 

law unless "the benefits of so doing outweigh the values 

underlying stare decisis." Ruiz, supra at 694-695, quoting 

Stonehill College, supra. Here, we conclude that the benefits 

of adopting the additional procedural protections proposed by 

the defendants are insufficient to outweigh the values 

underlying stare decisis.

Given the nature of the evidence that is typically 

presented at a bail hearing, and existing procedural 

protections, requiring a full evidentiary hearing in every 

single case where the court is contemplating imposing a bail 

that the defendant may be unable to afford would not add a 

significant benefit. As we observed in Querubin, 440 Mass. at 

118, in most bail proceedings,
41

"[t]he necessary determination can be adequately presented 

and decided based on documents (e.g., police reports, 

witness statements, letters from employers and others, and 

probation records) and the representations of counsel."

The defendant has the right to be represented by counsel at a 

bail hearing, see Lavallee, 442 Mass. at 234, and counsel should 

be given the opportunity to address (1) the defendant's CARI 

report, including especially the nature of any defaults; (2) the 

police report, or the prosecution's version of the offense; and 

(3) the defendant's ability to pay and his or her risk of flight

or otherwise failing to return to court.

The time constraints on bail hearings would make it 

impractical to require a full-blown evidentiary hearing, 

comparable to that required under G. L. c. 276, § 58A, before a 

court can set a bail that a defendant may be unable to pay. 

Indeed, there is a certain irony about the defendants'

contention that bail hearings should be more like § 58A 

hearings, given the challenges that CPCS has already encountered 

in providing defense counsel coverage for the steeply increasing 

number of § 58A hearings in Worcester County, as the defendants 

themselves experienced. To be sure, lack of resources cannot 

justify forgoing constitutional safeguards where they are 

necessary. But since the balancing test bids us to consider the 

government's interest in efficient and economic administration, 

it is appropriate to consider the burden on existing resources 
42

that a full evidentiary hearing would impose if it were required 

in every case where the court is contemplating a potentially 

unaffordable bail. Judges always have the option of holding an

evidentiary hearing, or some variation, if they conclude that it 

is warranted by the circumstances in a particular case. See 

Querubin, 440 Mass. at 118. We need not require more.

For similar reasons, we also adhere to preponderance of the 

evidence as the appropriate standard for bail hearings, even 

where the court imposes an unaffordable bail. As we have 

discussed supra, the evidence available to judges at bail 

hearings is typically relatively limited. Under those 

circumstances, asking judges to determine whether their

conclusions are supported by clear and convincing evidence, 

instead of a preponderance of the evidence, is not realistic and 

would not improve the fact-finding process.

d. Differences between bail determinations under G. L. 

c. 276, §§ 57 and 58, and under G. L. c. 276, § 58A. i. 

Whether § 58A prohibits setting unaffordable bail to assure a 

defendant's appearance. We now turn to the single justice's 

second Brangan question, concerning differences in setting bail 

under the bail statutes, G. L. c. 276, §§ 57 and 58, and under 

the dangerousness statute, G. L. c. 276, § 58A. We begin with 

his particular query as to whether a judge may set a cash bail 

that a defendant cannot post under G. L. c. 276, § 58A.
43

Subsection 58A (2), which lists various conditions of 

release that a judge may impose, states that "[t]he judicial 

officer may not impose a financial condition that results in the 

pretrial detention of the person." Subsection 58A (3) further 

states:

"A justice may not impose a financial condition under this 

section that results in the pretrial detention of the 

person. Nothing in this section shall be interpreted as 

limiting the imposition of a financial condition upon the 

person to reasonably assure his appearance before the 

courts."

The defendants contend that, in the context of a § 58A hearing,

these provisions flatly prohibit imposing a bail amount that a 

defendant cannot afford to post, resulting in a defendant's 

pretrial detention, under any circumstances. We disagree.

We have addressed this issue twice before, in Mendonza, 423 

Mass. 771, and in Brangan, 477 Mass. 691. In Mendonza, supra at 

774, we interpreted the foregoing provisions in § 58A to mean 

that "[t]he judge is precluded from imposing a financial 

condition that results in pretrial detention in order to assure 

the safety of other persons, although financial conditions 

having that effect are not precluded for the purpose of assuring 

his appearance before the court." We reached the same 

conclusion in Brangan, where we cited legislative history 

related to the Federal Bail Reform Act, the model for § 58A, 

which stated that the purpose of similar language in 18 U.S.C. 
44

§ 3142(c)(2) "is to preclude the sub rosa use of money bond to 

detain dangerous defendants," and "its application does not 

necessarily require the release of a person who says he is 

unable to meet a financial condition of release which the judge 

has determined is the only form of conditional release that will 

assure the person's future appearance." Brangan, supra at 701 

n.15, quoting Sen. Rep. No. 98-225, 98th Cong., 2d Sess. (1984), 

reprinted in U.S.C.C.A.N. 3182, 3199 (1994). We also noted 

that, based on that legislative history, the Federal courts have 

similarly rejected the argument that defendants are necessarily 

entitled to an affordable bail under the Federal Bail Reform 

Act. See Brangan, supra. See also, e.g., United States v. 

Mantecon-Zayas, 949 F.2d 548, 550 (1st Cir. 1991); United States

v. Jessup, 757 F.2d 378, 388 (1st Cir. 1985) (Federal Bail 

Reform Act provision stating that "[t]he judicial officer may 

not impose a financial condition that results in the pretrial 

detention of the person" does not foreclose detention where 

defendant cannot afford to post bail amount set by judicial 

officer and no other set of conditions is sufficient to 

guarantee defendant's appearance).

The Legislature has amended § 58A several times since our 

decisions in Mendonza and Brangan, but has not made any changes 

to alter or clarify the language at issue here. See St. 2010, 

c. 256, § 125; St. 2014, c. 260, §§ 33-38; St. 2014, c. 284, 
45

§ 97; St. 2018, c. 69, §§ 174–176; St. 2018, c. 219, § 30. We 

therefore conclude that our interpretation of that language is 

consistent with the legislative intent, and we see no reason to 

depart from that interpretation. See Bellalta v. Zoning Bd. of 

Appeals of Brookline, 481 Mass. 372, 383 (2019) ("Where, as 

here, the Legislature . . . repeatedly has amended the statute 

without changing the language at issue, we presume that it has 

adopted the construction of the statute upon which Massachusetts 

courts . . . have relied").

ii. Differences in setting bail under G. L. c. 276, §§ 57, 

58, and 58A. Considering more generally the single justice's 

question about differences in setting bail under G. L. c. 276, 

§§ 57 and 58, and under G. L. c. 276, § 58A, there are of course 

significant differences among these statutes. Section 58A 

establishes a procedure under which the Commonwealth may move 

for defendants who have been charged with certain serious

offenses to be detained pretrial, or released on conditions, due 

to their dangerousness. The focus of the hearing under § 58A is 

therefore on the defendant's dangerousness, see Mendonza, 423 

Mass. at 788, and the defendant is appropriately entitled to an 

evidentiary hearing at which he "shall be afforded an 

opportunity to testify, to present witnesses, to cross–examine 

witnesses who appear at the hearing, and to present 

information," G. L. c. 276, § 58A (4). Consequently, in 
46

contrast with §§ 57 and 58, bail may only be imposed under § 58A 

after a full evidentiary hearing. See G. L. c. 276, § 58A (2) 

(providing that "upon the motion of the commonwealth, the 

judicial officer shall hold a hearing pursuant to subsection 

[4]," after which judicial officer may "issue an order that, 

pending trial, the individual shall . . . be . . . released on 

conditions of release as set forth herein").

But the procedural requirements that we have established 

here and in Brangan are equally applicable to bail 

determinations under G. L. c. 276, § 58A, because these 

requirements are based on the constitutional demands of due 

process. Accordingly, in a § 58A hearing where, in addition to 

considering the defendant's dangerousness, the judge is 

contemplating imposing a bail that a defendant cannot afford to 

post to assure the defendant's appearance, the judge should also 

provide sufficient information to enable the parties and the 

appellate courts to recognize that the judge has undertaken the 

analysis required by our holding in Brangan.

Conclusion. We conclude that the delay in providing 

counsel to the defendants does not entitle them to release from 

pretrial detention under Lavallee. In response to the single 

justice's Brangan questions, we hold that a judge should provide 

sufficient information to enable the parties and the appellate 

courts to recognize that the judge has undertaken the analysis 
47

required by our holding in Brangan and its codification in the 

bail statutes before imposing a bail that is beyond what a 

defendant can reasonably afford. The consolidated cases are

remanded to the single justice for entry of orders denying the 

defendants' petitions for relief under G. L. c. 211, § 3, with 

regard to the claims that they have asserted under Lavallee.24

So ordered.

 

24 The defendants' appeals from the single justice's denial 

of their claims under Brangan are still pending before this 

court in other dockets. See note 10, supra.