By Daniel B. Winslow
Massachusetts has a population of 6.4 million people, according to the 2006 census estimate. As of last week, there were 380,807 outstanding warrants in the state Warrant Management System, including 213,424 default warrants for defendants who failed to return to court after arrest or arraignment.
If that fact meant one defendant for each warrant, the number of defendants would equal the populations of the cities of Taunton, Worcester and Springfield combined. It is more likely that many defendants have multiple warrants and engage in serial criminal acts, so a smaller number of people are responsible for a large portion of crime in our state — and other states. By any measure, the system is broken and needs to be fixed.
So how to fix the system? If one were to listen to press reports or talk radio and television in the past few weeks, an obvious solution would be to bash judges — especially judges who abide by statutes and the Constitution.
But if the goal is problem-solving rather than finger-pointing, there are several legislative amendments to existing law and executive and judicial steps that could be taken to reduce the number of outstanding defaults and to combat serial offenses in Massachusetts and elsewhere.
Abolish presumption of personal recognizance for repeat defaulters and replace with presumption of specified minimum bail requirements
Current Massachusetts law imposes on judges a presumption that all defendants will be released on their personal recognizance. This amendment would change the bail law to create a presumption of minimum bail required depending on the type of crime and how many times a defendant has defaulted in the past. A judge can impose a higher bail amount after a hearing, but would be required to impose at least the following in misdemeanor/felony cases:
2-3 prior DFs: $100/200
4-6 prior DFs: $400/800
7-10 prior DFs: $1,000/2,000
10-15 prior DFs: $2,500/5,000
More than 15 prior DFs: $5,000/10,000
Abolish bail reviews of District Court decisions by Superior Court
Current Massachusetts law allows defendants to seek a review in Superior Court of all bail decisions made by District Court judges. Superior Court bail decisions, by contrast, can only be challenged for abuse of discretion or error of law in the appellate courts.
Unlike the appellate standard of review, which gives deference to trial court decisions, current law allows a Superior Court judge to completely disregard the decision of the District Court judge and to substitute his own opinion even without any abuse of discretion or error of law by the District Court judge.
This superintendence of the District Court by the Superior Court is a relic and gives defendants two bites at the apple on bail. It will save time and money in the Superior Court and discourage appeals of bail decisions unless there is an abuse of discretion or error of law that requires appellate court review.
If adopted, District Court bail decisions will be reviewed in the same manner as Superior Court bail decisions: in the appellate courts.
Award forfeited bail to police departments who arrest defaulters
With rare exception, no one is actively searching for anyone who defaults from court. Current Massachusetts law awards forfeited bail to the state Treasury, but puts the burden of arresting defaulters on local police departments.
While current law already creates a $50 "arrest fee" that is supposed to offset local police costs, the reality is that arrest fees are rarely collected or collectable from arrested defendants.
By contrast, bail money already is held by the courts and immediately available to award to local police departments. Using bail money, in effect, as "reward" money for local police department budgets will create a powerful incentive and ability for police departments to seek out and arrest defaulters.
Include a defendant's legal status in the country as a factor in setting bail
Current Massachusetts law regarding bail decisions includes a number of factors to be considered by a judge in setting bail or releasing a defendant on personal recognizance. These factors are listed by statute (G.L.c. 276, Sect. 58) and include: seriousness of the crime, potential penalty, family ties, employment history and prior criminal history.
While illegal immigrants face deportation if convicted of a crime in Massachusetts and thus have a powerful incentive to default on future court appearances, the current bail statute does not include a defendant's legal status in the country as an express factor to be considered by a judge in setting bail. The amendment would include a defendant's lawful status in the United States as a factor to be considered by judges in making bail decisions.
Enforce the bail-jumping law
Currently, defaulting from a court appearance (after personal recognizance or bail) is a crime that carries up to a $10,000 fine and/or one year of incarceration in addition to any incarceration for the original crime if convicted.
Prosecutors rarely charge defaulters with this crime, and default has all gain and no consequence for defendants.
Prosecutors should enforce this law immediately throughout Massachusetts; if not enforced, the Legislature can require in future appropriations to district attorneys a reporting requirement as to why a particular county is not enforcing the law.
If enforced, this law will generate thousands of dollars of revenue that can be used to fund interstate apprehension teams when defendants are arrested on Massachusetts warrants in other states.
Measure judge and prosecutor performance in bail decisions
Every default reflects an incorrect decision either by a prosecutor — in seeking — or a judge — in imposing — insufficient bail to assure a defendant's return appearance to court.
Under current state law, judges and prosecutors never receive any information regarding how often their bail decisions are incorrect. And the public has no way to know when prosecutors or judges are consistently incorrect in making bail decisions.
The Trial Court should develop a performance measurement system to track the number of times, by judge and assistant district attorney, that a defendant defaults on personal recognizance or bail. Judges need to know when they repeatedly judge incorrectly on the question of bail.
Require the Trial Court to accept credit card and Internet payments
Approximately 100,000 of the current warrants in Massachusetts involve failure to pay money owed to the court. With scattered exceptions, the Trial Court requires payment of all monies in person and by cash payment only.
This system is fraught with peril and a waste of time for the public: Defendants must miss work to spend time in court to pay by cash, and Trial Court employees handle more than $80 million in cash annually.
The Trial Court should immediately accept credit card payment for all monies due to the court. This change will reduce the number of warrants in the system and shift collection activities from probation officers (who could better spend time preventing repeat offenses and substance abuse interdiction) to bank collection offices.
The Trial Court also should modify its website to allow payment by Internet rather than requiring defendants to personally appear just to pay in cash.
Create different priorities of warrants to alert police to the highest risks
With rare exception, all default warrants in Massachusetts are put into the same category of warrant with no distinction between accused shoplifters who default and accused child molesters who default.
This amendment would create four statutory categories of default warrant in Massachusetts: Priority 1 warrants, consisting of no more than 100 defendants determined by the Executive Office of Public Safety to be imminent dangers to the community; Priority 2 warrants, for defendants who have a history of violence (including all cases involving possession of guns or dangerous weapons) or have defaulted on charges or probation involving violence; Priority 3 warrants, for defendants wanted for any felonies not involving violence and persons who default from probation violation hearings; and Priority 4 warrants, for all other defendants.
Police need to know where to focus their efforts, and Priority 1 warrants can be publicized in the press to assist in the apprehension of fugitives.
Tragically, Brian and Beverly Mauck of Washington were not the first people allegedly murdered by a person with outstanding warrants from the Massachusetts courts. And they won't be the last victims of serial defaulters if the legal community does not lead the cause for change. We owe them at least that effort.
Daniel B. Winslow is a partner at Duane Morris in Boston. He previously served as a District Court judge and chief legal counsel to Gov. Mitt Romney.
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December 24, 2007
