Walsh v. Commonwealth

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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 

 (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, 

 (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, 

, 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, 

.   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, 

(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, 

 (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, 

, 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, 

 (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, 

(2020), S.C., 

 (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, 

, 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.

     10Apart 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, 

.

    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, 

, established a

presumptive seven-day limit on the pretrial detention of an

unrepresented indigent defendant, and a presumptive forty-five-

day 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 

, 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," 

.

    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, 

, 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, 

; 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," 

.

Here, in contrast with the petitioning defendants in Lavallee,

see 

, 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, 

,

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 

, "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," 

.   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.)

.

    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-by-
    factor 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, 

 (2018), quoting Paquette v. Commonwealth, 

 (2003), cert. denied, 

 (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, 

.    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 

.   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, 

 (1972).    See Brangan, 

 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


     11Massachusetts 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-release-
decisions/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, 

.

       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, 

.    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, 

, 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,

 (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, 

.    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, 

 (1994).   "[D]efendants should be

burdened with the fewest restrictions on their pretrial liberty

that will adequately assure their presence at trial."   

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, 

.

    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, 

739, 746 (1987); Sharris v. Commonwealth, 

(2018); Josh J., 

; Brangan, 

-

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, 

.    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.'"    

, quoting

Mendonza v. Commonwealth, 

 (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


     16We 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, 

, quoting Commonwealth v. Weston W., 

 (2009).

     17For example, in Aime v. Commonwealth, 

(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,

 (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




     18Although the same language does not appear in G. L.
c. 276, § 57, which governs bail proceedings in the Superior
Court, see Brangan, 

, we have previously
indicated that the presumption of release on personal
recognizance is equally applicable under § 57. See Commonwealth
v. Hampe, 

, 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, 

, 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, 

 (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.

     19We 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, 

 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, 

(discussing common-law and constitutional principles that

mandate consideration of a defendant's financial resources in

setting bail).




     22See Commonwealth v. Preston P., 

, 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, 

 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 court-

appointed counsel, and any other evidence before the court.     See

 ("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");

 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 

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

 (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, 

 (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, 

 ("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


     23For 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, 

 (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, 

.    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, 

.   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, 

 (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, 

 (2018), quoting Stonehill College v.
                                                                   40


Massachusetts Comm'n Against Discrimination, 

,

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

Comm'n Against Discrimination, 

 (2004).    We

acknowledge that "the principle is not absolute," 

quoting Stonehill 

 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.,

 (2015), quoting Alleyne v. United States, 

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

law unless "the benefits of so doing outweigh the values

underlying stare decisis."    

, quoting

Stonehill 

    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, 

, 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, 

, 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, 

.   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, 

, and in Brangan, 

.    In 

, 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."    

 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 

   See also, e.g., United States v.

Mantecon-Zayas, 

 (1st Cir. 1991); United States

v. Jessup, 

 (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, 

 (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, 

, 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.




     24The 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.