The Case For Personal Recognizance
“If a person is summoned into court and appears at the stated time and place, the chances are excellent that he will be released on his personal recognizance.”[1] – Associate Justice of the Massachusetts Supreme Judicial Court, Elspeth B. Cypher
Joe Murphy
This article argues that judges should release criminal defendants on personal recognizance that appear via summons because a statutory presumption already exists that defendants responding to summons are not flight risks.[2]
The following hypothetical is based on a combination of clients from the Suffolk Defenders Clinic that have unexpectedly not been released on their own recognizance after appearing in court via summons. Names, dates, locations, and offenses have been adjusted to maintain confidentiality.
I. Sean Smith
Sean Smith is a twenty-two-year-old Hyde Park resident where he lives in a two-bedroom apartment with his parents, Phil and Denise, and younger sister Lisa. Sean attended Hyde Park High School until eleventh grade, but never received his GED. One Tuesday morning in December, on his way out the door to work at the Wolcott Square Dunkin Donuts, Sean checks the family’s mailbox. Sean sees and opens an official looking letter addressed to him with a return address from the Trial Court of Massachusetts. Tearing open the envelope, he unfolds a white sheet of paper and reads “SUMMONS TO DEFENDANT” in all capital letters and bold in the top left corner. To the right of that, “Trial Court of Massachusetts” with the seal of the Commonwealth and “BMC Department” written right below.
Underneath the header and on the right side of the page, Sean reads “BMC Central, 24 New Chardon Street, Boston, MA 02114” and just underneath the address: “2/1/2022 9:00AM Arraignment First Session, Court Room 16.” To the right of the hearing information and in bold, Sean reads: “YOU MUST APPEAR AT ABOVE COURT ON THIS DATE & TIME.” Panicking, Sean remembered that six-months prior, when he was serving a sentence in Nashua Street for possession of a firearm without a license, he got into trouble for cursing and yelling at one of the guards.
Just below the instructions to appear before the Court was the charge “268/30 DISTURBING CORRECTIONAL INSTITUTION OR JAIL c268, § 30.” And confirming Sean’s hunch, “Date of offense: 8/1/2021.”
II. How Criminal Defendants Are Brought To Court
Criminal defendants may be brought before a court to face charges via arrest, arrest warrant or summons.[3] A summons is the “criminal process issued to a person requiring him to appear at a stated time and place to answer to criminal charges.”[4] M.G.L. c. 276 § 24 establishes a statutory preference for courts to issue summons instead of arrest warrants, unless the defendant is deemed a flight risk:
Upon a complaint or indictment for any offense, a summons shall issue instead of a warrant, unless, in the judgment of the court or justice, there is reason to believe that the defendant will not appear upon summons.[5]
The preference to issue summons rather than warrants is rooted in the idea that “defendants should be burdened with the fewest restrictions on their pretrial liberty that will adequately assure their presence at trial.”[6]
In Sean’s case, M.G.L. c. 276 § 24 demonstrates that by issuing a summons, rather than arrest warrant, the court has already determined that Sean is not a flight risk.
III. Sean Goes To Court
On February 1st, Sean wakes up at 6:45AM to his iPhone alarm. He showers and throws a pair of blue jeans, tan belt, black collared shirt, thick black zip-up sweatshirt, and White Reebok Classics. Sean leaves his house around 7:15AM to walk to the #32 bus on Hyde Park Ave to take him to Forest Hills. Sean gets off the bus arriving at Forest Hills where he waits for the Orange Line inbound Oak Grove train. When it arrives, Sean boards the train, rides it eleven stops to Haymarket Station, exits the station, and walks up Merrimac Street until he arrives at BMC-Central at around 8:45 AM. Sean stands in line outside only for a few minutes as security is moving quickly because of the cold. When Sean gets inside, he approaches the conveyor belt and follows the instruction of the Court Officer to take his belt, and sweatshirt off, empty his pockets, and walk through the metal detector.
On the other side of the metal detector, Sean collects his thing, puts his belt back on and walks straight to check in at the Clerk’s table at the other end of the foyer. The Clerk directs Sean to Court Room 16 on the fifth floor. Sean takes the elevator up and enters Court Room 16 at around 9:15AM. He is late, but thankfully the Clerk is calling matters alphabetically and has not gotten to the letter “S”. Sean sits and waits while defendants are arraigned. Sean even sees a few bail arguments and defendants held on some serious drug charges. Judge Jones is presiding and seems tough, but fair. By the time the Clerk reads, “the matter of Sean Smith,” it is about 11:15AM.
IV. Arraignments
The most important thing that happens at an arraignment is the judge’s determination of whether a defendant will be released on their own recognizance, held on bail, or held without bail.[7] The arraignment also serves to formally read the charges against the defendant, enter a plea on their behalf (typically of not guilty), and to determine whether a defendant needs court-appointed counsel, if for example, they are indigent and cannot afford a lawyer.
After his name is called, Sean informs Judge Jones that he will need court-appointed counsel. Sean was supposed to check-in with Probation when he arrived, but after a miscommunication with the Clerk, he went directly to Court Room 16. Judge Jones looks over at a student attorney with the Suffolk Defenders, who nods, walks over to Sean, and shakes his hand.
“Mr. Smith, I’m appointing the Suffolk Defenders to be your counsel, Student Attorney Garland will talk to you and your case will be called again.” Judge Jones then turns toward the prosecutor and asks, “ADA Harris, do you think you will be asking for bail on this?” ADA Harris, looks down at his notes and replies, “I don’t believe so, your honor.”
“Ms. Garland, still be ready for a potential bail argument when the case gets called again.” Ms. Garland nods and says, “Yes, judge.” She then motions for Sean to follow her into the hallway as the next “matter of Chris Stevens” is called by the Clerk.
V. Bail
M.G.L. c. 276, § 58 provides that a defendant should be released on their own recognizance without bail unless “such a release will not reasonably assure the appearance of the person before the court.”[8] Like the preference toward issuing summons instead of arrest warrants, “[o]ur Legislature intended § 58 to protect the rights of [a] defendant by establishing a presumption that he or she will be admitted to bail on personal recognizance without surety and by delineating carefully the circumstances under which bail may be denied.”[9] A separate statute, § 58A, permits the Commonwealth to hold defendants without bail “based on dangerousness” to the community.[10]
Brangan v. Commonwealth[11] held that a court must consider a defendant’s financial resources and may issue bail no higher than necessary to ensure a defendant’s appearance for trial.[12] The decision was intended to prevent indigent clients from being held pre-trial simply because they could not afford to post bail. Brangan also clarified that setting an unattainable bail where the defendant was considered a “threat to public safety” under § 58 was inappropriate and that a court must instead proceed under § 58A.[13] 58A requires a dangerousness hearing within seven days of a defendant to determine whether a defendant is dangerous, and whether they should be detained or released on conditions.[14]
If dangerousness is not at issue, § 58 helps judges determine whether a defendant is a flight risk by providing factors for consideration, like:
- Nature and circumstance of offense
- Potential penalty defendant faces
- Defendant’s family ties
- Financial resources/employment record/ability to give bail
- Reputation and residency in community
- Record of convictions
- Illegal drug distribution or current dependency
- Prior flight to avoid prosecution or fraudulent use of an alias
- Any failure to appear at any court proceeding to answer to an offense[15]
Further supporting the preference toward releasing defendants on personal recognizance that appear via summons, M.G.L. c. 276 § 27 requires the court to issue a special order when a defendant responding to a summons is not released on their own recognizance:
If a defendant so summoned duly appears, he may be ordered to recognize for his further appearance but shall not be required to give surety upon his recognizance at any stage of the prosecution without a special order.[16]
The statute does not define what the “special order” entails, but it is likely that any verbal order from a judge would qualify.[17] Still, the Legislature specifically requiring a special order only when defendants are not released via personal recognizance reinforces the preference toward not holding defendants on bail that are responding to a summons.
According to Justice Cypher, and the above statutes, because Sean showed up today via summons and is not charged with a violent crime, he should have an excellent chance to walk out on his own recognizance.
VI. The Client Interview
Leaving Court Room 16, Student Attorney Garland flips through Sean’s Court Activity Record Information (“CARI”) form she received from Probation. She notices two juvenile Trespassing charges, and only one other adult charge of possession of a firearm without a license from when Sean was 18. There also appears to be one default from the firearm charge. Sean can’t remember if he was just late to court or there was a miscommunication with his previous attorney. Thankfully, Sean showed up to six other court dates for that charge.
Student Attorney Garland pieces together that Sean was serving his 5-month sentence for the firearm incident when the current Disturbing a Correctional Facility incident occurred. The Complaint alleges Sean told one of the guards to “f*ck himself” and resisted verbal orders. Sean admits to mouthing off but tells Attorney Garland he only did after the guards conducted a cavity search on him in front of other inmates. She subtly shakes her head and half rolls her eyes in frustration trying to hide from Sean that she thinks the whole charge is silly and should not be prosecuted.
Student Attorney Garland then quickly moves through a series of questions based off of the § 58 factors about where Sean lives, his family, school, and employment background as she jots down a few notes to prepare for a potential bail argument. She warns Sean that he might be held on bail and asks for a friend or parent’s cell number to call if that happens.
Noticing Sean now appears nervous, Attorney Garland attempts to calm him: “I just talked to my supervisor, this isn’t a serious charge, you have a good track record of showing up for court, you walked in off a summons, so obviously are not a flight risk. Not to mention the Commonwealth isn’t asking for bail. ADA Harris is always reasonable. We really don’t think the judge will hold you.”
At about 1:15PM, the two reenter Court Room 16 together. After about twenty minutes, “the matter of Sean Smith” is called again. Attorney Garland waves Sean inside the bar to stand next to her. After a long day, Judge Jones looks impatient.
VII. The Argument
Attorney Garland introduces herself as a Student Attorney, the matter is arraigned, and a pre-trial conference date is selected for March 1st. Judge Jones then states, “Something is going on with this kid. Mouthing off to a guard in jail, the previous gun charge, and a default. Attorney Garland, why didn’t your client show up to Court for the gun charge?”
Attorney Garland, surprised by the question, fumbles for a second but recovers. “Judge, I’m not sure why Mr. Smith did not appear that one time – he may just have been late – but he did appear for every other court date for that offense. He also walked into Court today. Mr. Smith is not a flight risk. He lives in Hyde Park with his parents and sister Lisa, he’s got a job at Dunkin Donuts, and he wants to get this case resolved.”
Gaining in confidence after being caught off guard, Attorney Garland remembers last week’s classroom discussion on the bail statute and defiantly adds, “Per section 58 of the statute, the only thing we should be considering right now is whether Mr. Smith will show up for court, and he’s proven he will by walking in today.”
Judge Jones, seemingly annoyed that an attorney, especially a student practitioner, tried to tell him how to do his job, retorts, “Well how do we know he’s not a flight risk? It says right here that he didn’t show up in the past. You might not think this is a serious charge, but I do. He’s in jail for a serious gun charge and mouthing off to guards? I want to make sure he comes back to deal with this. I’m holding him on $250 cash bail. Tell him to call someone to get him out later today.”
Attorney Garland, shocked at the decision especially when ADA Harris did not ask for bail, watches as two Court Officers, who look equally surprised, approach Sean, place handcuffs on him, and guide him off to the left door to take the elevator to the basement to be held. Sean will be transferred to Nashua Street where he will be held until someone shows up to bail him out. The earliest would be at 5:00PM that day.
VIII. Was Sean a Flight Risk?
Technically, it was within Judge Jones’ discretion to issue bail for Sean. Judge Jones checked the § 58 factors of “defaults” and “past convictions” on the template required when defendants are held on bail. In Judge Jones defense, there are severe consequences if he lets the wrong defendant walk out of court on his own recognizance. They may flee or create a risk to public safety. And Judge Jones has probably seen it all. But only § 58A allows for Judge Jones to hold a defendant without bail if they believe they are dangerous.
Student Attorney Garland was also right. Per § 58, if Sean was not deemed dangerous, the only consideration should have been whether the Court was “reasonably assured” Sean would show up at his next date. The singular fact that Sean was summonsed, rather than issued an arrest warrant, demonstrates that the Court had already determined Sean was not a flight risk pursuant to § 24.
Think about how Sean got to court that day. He received a summons, two months later woke up, took a bus, train, went through security, waited 5 hours in court watching other people get held, and still waited for his case to be called. Despite a checkered past, Sean is the farthest thing from a flight risk.
IX. The Message
As Student Attorneys receiving their first exposure to the criminal justice system, the lesson became clear: statutory presumptions and protections for personal recognizance are not always enough or followed. And even the finest judges and prosecutors – which there are many at BMC – may sometimes use their discretion to have the process of bail punish a defendant, rather than to ensure their attendance in court.
The Suffolk Defenders observed multiple other defendants held on bail after responding to summons: one homeless woman on a drug possession charge, another young male for breaking and entering. And the message to those defendants was even more clear: you show up to court to answer a summons, you’re going to jail. This message almost encouraged defendants to ignore future summons and take their chances with arrest warrants. It also exposed those defendants to the potential ramifications of pre-trial detention when they were not actually flight risks – like job loss, diminished opportunity to prepare for their case, and encouraging worse plea agreements as defendants sought quick resolutions, especially when they had trouble affording bail.[18]
Ultimately, the Court should adhere to, and advocates should remind the Court of the statutory preferences and presumptions that are already in place in favor of personal recognizance––especially when someone is responding to a summons and has therefore already been deemed not a flight risk.
[1] § 18:7. Importance of a summons in regard to bail, 30A Mass. Prac., Criminal Practice & Procedure § 18:7 (4th ed.).
[2] This argument applies only to bail under Mass. Gen. Laws Ann. ch. 276, § 58 and not for revocation or §58A dangerousness purposes.
[3] Mass. R. Crim. P. 6 (explaining warrant and arraignment process).
[4] Mass. R. Crim. P. 2 (defining summons).
[5] Mass. Gen. Laws Ann. ch. 276, § 24.
[6] Mass. R. Crim. P. 6.
[7] See Mass. R. Crim. P. 7 (outlining arraignment procedures); Mass. Gen. Laws Ann. ch. 276, § 58A (providing Commonwealth authority to hold defendants in pre-trial detention without bail for defendants deemed dangerous).
[8] Mass. Gen. Laws Ann. ch. 276, § 58.
[9] Delaney v. Commonwealth, 415 Mass. 490, 495 (1993).
[10] Mass. Gen. Laws Ann. ch. 276, § 58A.
[11] 477 Mass. 691 (2017).
[12] See id. at 706
[13] Id.
[14] Id.; see Mass. Gen. Laws Ann. ch. 276, § 58A.
[15] See Mass. Gen. Laws Ann. ch. 276, § 58 (providing all factors).
[16] Mass. Gen. Laws Ann. ch. 276, § 27.
[17] See Johnson v. PARS, Inc., 67 Mass. App. Ct. 1106 (2006) (considering oral order from judge “special order of the court” for insurance statute absent specific writing requirement).
[18] See Shima Baradaran Baughman, The History of Misdemeanor Bail, 98 B.U. L. Rev. 837, 872 (2018).