Prior to a criminal trial, a defendant is typically either released upon his own recognizance or released if he pays the bail imposed by the judge. In some extreme cases, however, Massachusetts law allows for a defendant to be held prior to a finding as to whether or not he is guilty without any possibility of release. This can be done through a 58A dangerousness hearing. The hearing allows for a defendant to be held based on a number of conditions, which when examined together the court determines makes the defendant too dangerous to release back into the community.
If a Rule 58A hearing is held, it must be done so upon the first appearance of the defendant. According to Massachusetts law, the defendant can be held when there are conditions of the release that will reasonably assure the safety of another individual or the community at large. Holding the defendant under Rule 58A requires that the defendant created one of the specifically enumerated crimes. Thee crimes include violent felonies, burglary, arson, violation of a restraining order, a drug offense with a penalty over three years, or a third offense involving operating a motor vehicle under the influence of alcohol.
If the defendant has committed one of these crimes, then the court may hold a Rule 58A hearing. At the hearing the defendant has the right to be represented by an attorney, to testify on his own behalf, to present witnesses, and to cross examine witnesses who are called on the other side. The defendant is afforded these rights as a way to ensure that the defendant's rights are protected and to ensure that the proceeding itself is constitutional.
When determining whether or not a defendant can be held under a Rule 58A dangerousness hearing, the judge must look at a number of factors. These factors include the nature and seriousness of the offense charged, the potential penalty that the defendant faces if convicted, the defendant's family ties, the defendant's employment record, whether or not the defendant has a history of mental illness, and the defendant's overall reputation. In addition, judges may look at the defendant's criminal record, whether or not the defendant is on probation of whether or not the defendant has a history of drug addiction or drug related charges.
If the judge orders the defendant to be detained prior to trial, the judge must prepare written findings of fact, much like a typical opinion. In this, the judge must explain the reasons for holding the defendant and specifically address the evidence presented that led to the judge's conclusion.
While the decision made by the judge is binding, the defendant has the opportunity to appeal it. The superior court is allowed to review the lower court's decision within five days of the original finding. The reviewing court has the same options as the trial court did, meaning the appeals judge is allowed to either keep the defendant in custody, release him on bail, or release the defendant on his own recognizance.
ALM GL ch. 276, § 58A
Karen A. Rooney, Detaining for Danger Under the Federal and Massachusetts Bail Statutes: Controversial but Constitutional, 22 N.E. J. on Crim. & Civ. Con. 465.