Bail or jail? A misunderstood process


In comments posted online by Martha’s Vineyard Times readers and in conversations with Islanders inside and outside the law enforcement community, reactions ranged from criticism to outrage that Richard Morris, a familiar in the court news, was arrested once again and then released on $500 bail on January 27.

This year alone, Mr. Morris has been released on $10,000 bail twice, then later arrested again on separate, serious drug-dealing charges.

The purpose of bail, according to the law, is only to guarantee that a defendant does not flee the court’s jurisdiction to avoid facing criminal charges. A judge usually sets bail at arraignment, after considering the arguments from a prosecutor and a defense attorney.

How does it actually work?

Often, the question of bail arises outside of the court’s regular hours. In that case, a court clerk, or a bail commissioner sets bail. A bail commissioner is appointed by the Dukes County Superior Court. According to a set schedule, one of the four bail commissioners on the Island are available, even in the middle of the night, to set bail after an arrest. The clerk or bail commissioner must consider exactly the same factors a judge considers when setting bail. They have a written statement of facts prepared by police, plus the defendant’s criminal record at hand, including a record of any previous defaults on court appearances.

They can order the release of the accused until the next session of the district court begins, usually at 8:30 am the following morning, or if bailed on a weekend, the following Monday morning.

Bail, not jail

A bail commissioner set bail in the case of Mr. Morris. The process was complicated when Mr. Morris asked for an ambulance shortly after his arrest, and said he thought he was having a heart attack, according to police. Police were skeptical, suspecting that after a long record of arrests and court appearances, Mr. Morris is adept at manipulating the legal system. They also knew that over many years of involvement with the court system, Mr. Morris has a record of appearing for court as ordered, in nearly every case.

Police decided to take Mr. Morris directly to the Martha’s Vineyard Hospital, instead of the Dukes County Jail for booking.

“We’re certainly not going to call his bluff and have him get sick in the back of the cruiser,” Oak Bluffs Police Lieut. Tim Williamson said.

A bail commissioner responded directly to the hospital and set bail at $500.

Speaking in general terms, and not specifically about the Morris case, state bail administrator Michael McEneaney explained the process.

“The purpose of bail is often misunderstood,” Mr. McEneaney said. “The bottom line is it’s not the bail commissioner’s job to determine guilt or innocence. It’s what will it take to ensure (a defendant) shows up for his first required appearance in court.”

Police did not object to the relatively low bail set for Mr. Morris, because they did not want to guard him in his hospital room around the clock.

“We weren’t interested in posting a police officer at his hospital room,” Lieut. Williamson said. “We would have had to pay somebody overtime. That gets expensive. He’s never been a flight risk.”

According to Lieut. Williamson, immediately after Mr. Morris posted $500 bail, he left the hospital against the advice of medical personnel.

When Mr. Morris appeared for arraignment in Edgartown District Court five days after his arrest, his right arm was in a sling. His other arm and feet were restrained with handcuffs and chains, part of the court’s standard operating procedure. Police said they knew of no injury Mr. Morris sustained during his arrest. He was held without bail after that arraignment.

Flight factor

Massachusetts General Laws, Chapter 276, section 58, sets out the factors a court may consider when setting bail. For example, ties to the community, such as a family or a job in the area may bear on the decision. Whether the accused has always appeared as ordered for previous court appearances may be a factor. The court may consider the seriousness and the circumstances of the crime alleged, the possibility that a mandatory sentence could increase the flight risk, whether the accused has violated restraining orders or conditions of probation or parole, and a variety of other factors.

A separate statute covers the issue of dangerousness to the community. After a hearing, a judge could decide that incarceration, electronic monitoring, or daily alcohol testing is necessary to protect the victim of a crime or to protect the community. The dangerousness statute is usually invoked in cases that involve a crime of violence, or drunk driving, but rarely in drug cases.

While she would not comment on the Morris case because it is an open case before the court, Cape and Island assistant district attorney Laura Marshard did talk about the state’s bail law in general, and the practical side of working with the laws here on Martha’s Vineyard. She listed the most critical factors she considers when asking the court to set appropriate bail.

“In our case, is it an Island person, or an off-Island person? Do they have ties to the community, employment or work history, or family on the Island? Their criminal record, is there a history of defaults? Do they have aliases, do they have a history of parole or probation violations?”

She points out that the prosecutor does not set bail, the court does.

“We make a request, and the judge makes a decision. The judge applies the bail statue,” Ms. Marshard said.

Crime, not punishment

For relatively minor offenses, a defendant is often released on “personal recognizance,” based simply on his promise to return to court when ordered.

If some surety is warranted, judges usually set bail as an amount of money, sometimes with separate conditions. If a defendant posts the cash, he is released from custody but required to appear for all scheduled court appearances. If he does not appear, he could forfeit the bail. Bail could also be posted by surety. Surety is some other person, often a relative, who will be responsible for the defendant showing up in court, or will forfeit the bail if he does not. Unlike many other states, Massachusetts no longer accepts property as a form of bail.

Judges base their decision in part on the arguments of the prosecutor and defense attorney, who argue the two sides of the issue.

Court officials and police say they are sometimes criticized by people who confuse bail with punishment. The bedrock constitutional principle that a defendant is innocent until proven guilty prevents the court from using bail as a way to incarcerate a defendant for a crime before he is proved guilty.

“There’s definitely confusion. People wonder if someone has a terrible criminal record but they have no history of default, why they get bailed,” Ms. Marshard said.