Updated: Apr 11
If you are reading this today, you probably have a family member or loved one held in jail as "dangerous" without the right to post bail. Understandably, you are confused and wondering what an attorney can do to get your loved one home.
In Massachusetts, prosecutors can move to have defendants held in jail as dangerous when it is alleged that they committed a dangerous offense, including but not limited to any criminal offense that involves force or threat of force against a person. M.G.L. c. 276, s. 58A. Defendants have the opportunity to challenge dangerousness at 58A Hearings, where they might argue with their lawyer:
(1) Why they are not dangerous;
(2) Why, even if the judge finds them dangerous, there are conditions of release (e.g. GPS bracelet, curfew, or stay away order) that could reasonably ensure the community's safety.
Massachusetts judges consider a number of factors at 58A Hearings (a.k.a. "Dangerousness Hearings"). On top of the prosecutor's arguments and the defendant's arguments through his/her attorney, a judge will consider:
- The nature and seriousness of danger posed by releasing the defendant;
- Nature and circumstances of the criminal offense charged;
- Potential penalties for the crimes alleged (Does it carry a high sentence?);
- Roots in the Community: local family ties, employment, and education;
- Defendant's CORI/CARI, or record of convictions;
- Other facts and circumstances, including but not limited to substance use and
Despite strong arguments by defendants through their criminal defense attorneys, defendants are often held in jail without the right to bail for 120 days -- or approximately four months. Even if bail is set on one or more of the defendant's cases, posting bail will not release a person from custody once a judge decides that they pose a danger and no conditions of release will protect the alleged victim or the community.
What Can An Attorney Do?
A criminal defense attorney can ask the Court to reconsider the defendant's detention in jail under 58A. A skilled attorney will point out any flaws in the prosecutor's argument, or work hands-on with your loved one to show a change in circumstances to the judge. A change in circumstance might include:
- Taking a new medication;
- Drug/Alcohol Abuse Treatment;
- Working with a social worker;
- Psychiatric Care - Medications and/or Therapy;
- Group Meetings or seminars;
- Previously unavailable evidence;
- Passage of time;
- Acceptance to a group home or program; or
- Any factor that the judge did not already consider at your loved one's 58A Hearing.
Regularly, I work with clients in Springfield District Court to improve their circumstances and argue for their release from jail. Especially if your family member has mental illness or substance use disorder, jail is not an adequate substitute for treatment and forming deep connections with professionals in the community.
What Can Family and Friends Do?
- Support your loved one and stay in contact with them as regularly as you can. Jail is undoubtedly a scary, and even frustrating, experience for them.
- Cooperate with your Loved One's Attorney, But Respect Boundaries -- As the criminal client in an attorney-client relationship, your loved one calls the shots with how much information their attorney should disclose to specific people. Some clients want their family and friends to know as much information as possible, while others prefer more privacy.
Sometimes, for strategic reasons, the attorney will advise their client not to share specific information related to the case. Do not pressure your family member or friend to divulge privileged information.
If you have information that you think would be helpful to your loved one's case, tell their criminal defense attorney as soon as possible.