Attorney Sam’s Take: Under Arrest In Boston – Are You Likely To Make Bail?

As you might assume, I hear many complaints about the criminal justice system while fighting for clients’rights and freedom in the Boston area. Many feel they are being investigated or charged unfairly by prosecuting attorneys. Some feel like the system is too slow. Others feel the unfairness of what I have referred to as the “assumption of guilt” while they are presumed to be innocent.

I have ready answers for most of these complaints. I might not like them any more than my clients do, but I have the answers.

There is one criminal justice issue, however, to which there is no ready answer. It is the issue of unequal justice.

Let me give you an example. Backagain Barney has a long criminal record. He has been in and out of jail and probation for most of his adult life. Now, he is gracing the Boston Municipal Court with a new assault and battery charge. They say he got into a fight at the Boston Common with a stranger. He won the fight as well as overnight Commonwealth housing.

Just as Barney is facing the court at arraignment, Nick Nevershouldaproposed is facing arraignment in Lynn District Court. He, too, is charged with assault and battery. His case, however, involves his wife. He is accused of slapping her during an argument and threatening, in mid argument, “You make me so mad, I could kill you”. It is his second criminal matter. His first, about nine years ago, was for drunk driving.

Who do you think is the most likely to be released pending trial?

While one can never be sure, Barney is the most likely candidate to be enjoying the New England weather this afternoon. Why? Yes, he has more of a worse criminal record. Yes, he is charged with the same crime and, yes, his alleged crime was more violent than a mere slap and it was on an unsuspecting stranger.

But Nick’s matter is now called “domestic violence“. He is more likely to be held pending a dangerousness hearing, particularly because of the alleged threat.

Let’s try another example right out of this week’s headlines. In Hull, Massachusetts, Louis D., 24 (hereinafter, the “Defendant”) is charged with two counts of Rape of a Child. He is a tennis expert and makes money as an instructor. Meanwhile, Hypothetical Harry faces one count of Rape of a Child. His case is closer to Boston. He owns his own business which depends on construction work in and around people’s homes for a living.

In both cases, the issue of bail and conditions of release come up.

In the Defendant’s case, the prosecution requests that he be prohibited from working with children under 18 and that he notify his clients of the charges against him. The judge denies this request and sets bail at $2,000 .

Harry, however, is not so fortunate when it comes to the judiciary. Setting higher bail than $2,000, the court, without a request from the Commonwealth, orders that not only must he stay away from children under the age of 16, unless supervised, but that he notify any homeowner in who’s house he may work about the charges against him. The obvious result is that Harry, presumed innocent of course, watches his business become a thing of the past as he awaits the chance to clear his name.

“Wow, Sam, Harry must have a worse criminal record.”

It is Harry’s first arrest. He is a veteran who has a family to support and, until the accusations, a sucessful business which was doing just that.

So, Harry is left to ponder why he and his family enter into economic hardship, while presumed innocent, while other similarly situated criminal defendants, as well as some who have even more charges against them, are able to, at least, make a living while facing the halls of Justice.

This is the “Why” question that is difficult, and often impossible, to answer.

The purpose of bail is to ensure that the defendant shows up in court throughout the process. Many factors are involved in the decision of what that bail conditions will be imposed on the accused. Generally, they include prior criminal history, the charges faced, strength of the prosecution’s case and ties to the community.

The reasoning is thus:

1. Prior Criminal History – Worse record means potentially heavier sentence if convicted. Heavier sentence means more incentive to flee. Did he show up in his prior cases?

2. Charges faced – more serious charges usually mean longer criminal sentence if convicted. Longer sentence means more incentive to flee.

3. Strength of prosecution’s case – The more hopeless the cause is means the greater chance of being found guilty which gives more incentive to flee.

4. Ties to the community – the more ties the accused has to the community (i.e. clubs, family, job), the less likely the accused is to throw it all away and flee


Makes sense, right? So, let’s look again at Harry. He has no prior record. He is facing one count of rape (and one of indecent sexual assault). I cannot comment on the strength of the Commonwealth’s case, but I suggest it is not the reason for the bail conditions. Finally, he has everything one looks for in terms of ties to the community.

So, why the higher bail amount? Why must he watch his business fail because of that extra bail condition that he inform would-be employers of his charges (to which he has pleaded “not guilty” and is, in fact, presumed innocent?)

The answer is that, while we like to believe that there is a magic calculation to which all prosecutors and judges adhere, there is no such thing. Bail is considered on a case-by-case basis and the secret truth is that said “case” includes who the judge is, who the prosecutor is and what their personal views on criminal justice are. Yes, that view also includes the fear I have often described of, “What if I give this guy a break and he goes out and re-offends?”

That’s right…I said re-offends…although the accused has thus far been convicted of nothing.

Judges and prosecutors are generally very intelligent and very experienced. They know what the boundaries are. However, they are also human beings and human beings have personal opinions and concerns upon which decisions are often based. Human beings can also become jaded by seeing countless people they opine are “probably guilty” for many years.
How those human beings are effected by those human tendencies differs from individual to individual.

…And that is often the wild card that one faces when trying to guess what the bail conditions are likely to be in a given case.

“But, Sam, is that fair?”

I don’t think so, but it is the reality.

This, then, is another reason why you want an experienced criminal defense attorney by your side if you are facing charges. An attorney with experience is going to have a better grasp of the “playing field” and what could happen. The attorney will know what factors on your behalf to stress at arraignment and have a better chance to expect the unexpected. The better the ability to expect the unexpected means the better the chance of dealing with it successfully.

Should you be facing criminal charges and would like to discuss them with me, please feel free to call me at (617) 206-1942.

In the meantime, have a happy, safe and law-abiding weekend!

For the full article upon which today’s blog is based, go to

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