HOUSE DOCKET, NO. 537        FILED ON: 1/13/2017

HOUSE  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  No. 940

The Commonwealth of Massachusetts

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PRESENTED BY:

Angelo J. Puppolo, Jr.

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To the Honorable Senate and House of Representatives of the Commonwealth of Massachusetts in General
Court assembled:

The undersigned legislators and/or citizens respectfully petition for the adoption of the accompanying bill:

An Act relative to the Commonwealth’s right to appeal bail decisions.

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PETITION OF:

HOUSE DOCKET, NO. 537        FILED ON: 1/13/2017

HOUSE  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  No. 940

[SIMILAR MATTER FILED IN PREVIOUS SESSION
SEE HOUSE, NO. 3830 OF 2015-2016.]

The Commonwealth of Massachusetts

_______________

In the One Hundred and Ninetieth General Court
(2017-2018)

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An Act relative to the Commonwealth’s right to appeal bail decisions.

Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, as follows:
 

SECTION 1. Section 58 of Chapter 276, of the General Laws as appearing in the 2014 Official Edition, is hereby amended by striking the sixth and seventh paragraphs and inserting in place thereof the following 4 paragraphs:--

A person aforesaid charged with an offense and not released on his personal recognizance without surety by a clerk or assistant clerk of the district court, a bail commissioner or master in chancery shall forthwith be brought before the next session of the district court for a review of the order to recognize in accordance with the standards set forth in the first paragraph of this section. The court shall provide as an explicit condition of release for any person admitted to bail pursuant to this section or Section 57 that should said person be charged with a crime during the period of his release, his bail may be revoked in accordance with this paragraph and the court shall enter in writing on the court docket that the person was so informed and the docket shall constitute prima facie evidence that the person was so informed. If a person is on release pending the adjudication of a prior charge, and the court before which the person is charged with committing a subsequent offense after a hearing at which the person shall have the right to be represented by counsel, finds probable cause to believe that the person has committed a crime during said period of release, the court shall then determine, in the exercise of its discretion, whether the release of said person will seriously endanger any person or the community. In making said determination, the court shall consider the gravity, nature and circumstances of the offenses charged, the person's record of convictions, if any, and whether said charges or convictions are for offenses involving the use or threat of physical force or violence against any

person, whether the person is on probation, parole or other release pending completion of sentence for any conviction, whether he is on release pending sentence or appeal for any conviction, the person's mental condition, and any illegal drug distribution or present drug dependency. If the court determines that the release of said person will seriously endanger any person or the community and that the detention of the person is necessary to reasonably assure the safety of any person or the community, the court may revoke bail on the prior charge and may order said person held without bail pending the adjudication of said prior charge, for a period not to exceed sixty days. The hearing shall be held upon the person's first appearance before the court before which the person is charged with committing an offense while on release pending adjudication of a prior charge, unless that person, or the attorney for the commonwealth, seeks

and the court allows, a continuance because a witness or document is not immediately available. Except for good cause, a continuance on motion of the person shall not exceed seven days and on motion of the attorney for the commonwealth may not exceed three business days. During such continuance, the person may be detained consistent with the provisions of this section. Said order shall state in writing the reasons therefor and shall be reviewed by the court upon the acquittal of the person, or the dismissal of, any of the cases

involved. A person so held shall be brought to trial as soon as reasonably possible.

A person aggrieved by the denial of a district court justice to admit him to bail on his personal recognizance without surety may petition the superior court for review of the order of the recognizance and the justice of the district court shall thereupon immediately notify such person of his right to file a petition for review in the superior court. The Commonwealth, with the approval of the District Attorney or the Attorney General, or his or her designee, may petition the superior court for a review of the order of the district court or the detaining authority admitting a person to bail on his personal recognizance without surety, or admitting a person to bail with or without surety. The Commonwealth's petition shall be filed no later than the next business day after the entry of the order of the district court or the detaining authority. The filing of a petition by the Commonwealth shall not stay the order of the district court admitting the person to bail on his personal recognizance without surety or admitting the person to bail with or without surety. The court shall inform the defendant that a petition by the Commonwealth may be filed, that if the Commonwealth files a petition and if the defendant is released on personal recognizance without surety or is released on bail with or without surety, he shall appear at the superior court for the hearing on the morning of the next business day following the filing of the Commonwealth's petition, and that failure to appear in the superior court could result in arrest or revocation of bail.

When a petition for review is filed in the district court or with the detaining authority subsequent to defendant’s district court appearance, the clerk of the district court or the detaining authority, as the case may be, shall immediately notify by telephone, or by writing delivered in hand or by facsimile or electronic transmission that same day, the clerk and probation officer of the district court, the defendant, the district attorney for the district in which the district court is located, the prosecuting officer, the defendant’s counsel, if any, and the clerk of courts of the county to which the petition is to be transmitted. The clerk of the district court, upon the filing of a petition for review, either in the district court or with the detaining authority, shall forthwith transmit the petition for review, a copy of the complaint and the record of the court, including the appearance of the attorney, if any is entered, and a summary of the court’s reasons for denying the release of the defendant on his personal recognizance without surety, or for releasing the defendant on his

personal recognizance without surety, or for setting bail in the amount determined, to the superior court for the county in which the district court is located, if a justice thereof is then sitting, or to the superior court of the nearest county in which a justice is then sitting; the probation officer of the district court shall transmit forthwith to the probation officer of the superior court, copies of all records of the probation office of said district court pertaining to the defendant, including the defendant’s record of prior convictions, if any, as

currently verified by inquiry of the commissioner of probation. The district court or the detaining authority, as the case may be, shall cause any defendant in its custody to be brought before the said superior court on the same day the petition shall have been filed, unless the district court or the detaining authority shall determine that such appearance and hearing on the petition cannot practically take place before the adjournment of the sitting of said superior court for that day and in which event, the defendant shall be caused to be

brought before said court for such hearing during the morning of the next business day of the sitting of said superior court. Where the Commonwealth has filed a petition for review and where the defendant has been released on personal recognizance without surety, or has posted bail and has been released from custody, the superior court shall order the defendant to appear before the court for review on the next business day following the filing of the Commonwealth's petition for review, and such hearing shall not be continued absent extraordinary circumstances. The district court is authorized to order any officer authorized to execute criminal process to transfer the defendant and any papers herein above described from the district court or the detaining authority to the superior court, and to coordinate the transfer of the defendant and the papers by such officer. The petition for review shall constitute authority in the person or officer having custody of the defendant to transport the defendant to said superior court without the issuance of any writ or other legal process, provided, however, that any district or superior court is authorized to issue a writ of habeas corpus for the appearance forthwith of the defendant before the superior court.

The superior court shall in accordance with the standards set forth in the first paragraph of this section, hear the petition for review as speedily as practicable and except for unusual circumstances, on the same day the petition is filed; provided, however, that the court may continue the hearing to the next business day if the required records and other necessary information are not available. If the Commonwealth files a petition and if the defendant is released on personal recognizance without surety or is released on bail with or without surety, absent extraordinary circumstances, the superior court shall hear the petition on the next business day following the filing of the Commonwealth's petition for review. The justices of the superior court may, after a hearing on the petition for review, order that the defendant be released on bail on his personal recognizance without surety, or, in his discretion, to reasonably assure the effective administration of justice, may make any other order of bail or recognizance, including increasing the amount of the recognizance or requiring sufficient surety, or both, or remand the defendant in accordance with the terms of the process by which he was ordered committed by the district court.

SECTION 2. Said Section 58 of said Chapter 276 of the General Laws, as so appearing, is hereby further amended by inserting after the word “review”, in line 299, the following words: -- "by either the defendant or the Commonwealth."

SECTION 3. Said Section 58A of said Chapter 276 of the General Laws, as so appearing, is hereby amended by striking clause 7, and inserting in place thereof the following clause:--

(7) A person aggrieved by the denial of a district court justice to admit him to bail on his personal recognizance without surety, or the

Commonwealth, with the approval of the District Attorney or the Attorney General, or his or her designee, may petition the superior court for a review of the order of the recognizance. The justice of the district court shall thereupon immediately notify the defendant and the Commonwealth of the right to file a petition for review in the superior court. The Commonwealth's petition shall be filed no later than the next business day after the entry of the order of the district court or the detaining authority. The filing of a petition by the Commonwealth shall not stay the order of the district court admitting the defendant to bail on his personal recognizance without surety or releasing the defendant on conditions as set forth in subsection (2). The court shall inform the defendant that a petition by the

Commonwealth may be filed, that if the Commonwealth files a petition and if the defendant is released, he shall appear at the superior court for the hearing on the morning of the next business day following the filing of the Commonwealth's petition, and that failure to appear could result in arrest or revocation of bail.

When a petition for review is filed in the district court or with the detaining authority subsequent to defendant's district court appearance, the clerk of the district court or the detaining authority, as the case may be, shall immediately notify by telephone, or by writing delivered in hand or by facsimile or electronic transmission that same day, the clerk and probation officer of the district court, the defendant, the district attorney for the district in which the district court is located, the prosecuting officer, the defendant's counsel, if any, and the clerk of courts of the county to which the petition is to be transmitted. The clerk of the district court, upon the filing of a petition for review, either in the district court or with the detaining authority, shall forthwith transmit the petition for review, a copy of the complaint and the record of the court, including the appearance of the attorney, if any is entered, and a summary of the court's reasons for the order on the Commonwealth's motion for an order of pretrial detention under subsection (2), to the superior court for the county in which the district court is located, if a justice thereof is then sitting, or to the superior court of the nearest county in which a justice is then sitting; the probation officer of the district court shall transmit forthwith to the probation officer of the superior court,

copies of all records of the probation office of said district court pertaining to the defendant, including the defendant's record of prior convictions, if any, as currently verified by inquiry of the commissioner of probation. The district court or the detaining authority, as the case may be, shall cause any defendant in its custody to be brought before the said superior court on the same day the petition shall have been filed, unless the district court or the detaining authority shall determine that such appearance and hearing on the petition cannot practically take place before the adjournment of the sitting of said superior court for that day and in which event, the defendant

shall be caused to be brought before said court for such hearing during the morning of the next business day of the sitting of said superior court. Where the Commonwealth petitions for review and where the district court has denied the Commonwealth's motion for an order of pretrial detention and has found that there are conditions of release that will reasonably assure the safety of any other individual or the community and the defendant has been released, or where the district court has released the defendant on personal

recognizance, the superior court shall order the defendant to appear before the court for review of the district court's decision on the next business day after the filing of the Commonwealth's petition for review, and such hearing shall not be continued absent extraordinary circumstances. The district court is authorized to order any officer authorized to execute criminal process to

transfer the defendant and any papers herein above described from the district court or the detaining authority to the superior court, and to coordinate the transfer of the defendant and the papers by such officer. The petition for review shall constitute authority in the person or officer having custody of the defendant to transport the defendant to said superior court without the issuance of any writ or other legal process; provided, however, that any district or superior court is authorized to issue a writ of habeas corpus for the appearance forthwith of the defendant before the superior court.

The superior court shall in accordance with the standards set forth in Section 58A, hear the petition for review under Section 58A as speedily as practicable and except for unusual circumstances, on the same day the petition is filed; provided, however, that the court may continue the hearing to the next business day if the required records and other necessary information are not available. Where the district court has denied the Commonwealth's motion for an order of pretrial detention and has found that there are conditions of release that will reasonably assure the safety of any other individual or the community and the defendant has been released, or

where the district court has released the defendant on personal recognizance without surety, the superior court shall hear the Commonwealth's petition for review on the next business day following the filing of the Commonwealth's petition for review. The justice of the superior court may, after a hearing on the petition for review, order that the petitioner be released on bail on his

personal recognizance without surety, or, in his discretion, to reasonably assure the effective administration of justice, make any other order of bail or recognizance, including the issuance of an order for pretrial detention, or remand the defendant in accordance with the terms of the process by which he was ordered committed by the district court.