Although criminal defendants charged with 1st degree murder in Massachusetts do not have a right to bail, the Supreme Judicial Court recently ruled that a judge has discretion to afford them with a bail. In its decision in Vasquez v. Commonwealth, the SJC explained that bail had been granted in the court’s discretion in capital cases from early colonial times. This “common law” rule had not been changed or overruled by statute.
By way of background, the Massachusetts legislature rewrote the bail statute in 1971. In that amendment, c. 276, sec. 58 established a presumption of release on personal recognizance pending trial. That statute, however, specifically excludes persons charged with “an offense punishable by death”. That provision, however, was interpreted to mean that sec. 58 doesn’t apply to persons charged with murder in the first degree, even though the SJC, in 1981, ruled that the death penalty statute then in effect was unconstitutional. For that reason, sec. 58 does not preclude bail for a person charged with 1st degree murder and it is in the judge’s discretion whether or not grant it – despite that there is no “constitutional right” to be released on bail prior to trial.
With this backdrop, the SJC outlined what factors a judge should consider when a criminal defendant charged with 1st degree murder requests that he be afforded a bail. The factors or balancing test is similar to those that a judge would consider in granting bail to any other criminal defendant, including: the nature and circumstances of the allegations; the defendant’s family background, educational history, financial resources, and ties to the community. Other factors that might also be considered include the defendant’s prior criminal history and/or record of convictions; whether there is any history or record of defaults in court appearances; his character; and his mental condition. The SJC further noted that judge’s should also consider if the murder or other criminal offense charged involved any circumstances of domestic abuse or violation of a restraining order.