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SJC-12232

                 JAHMAL BRANGAN   vs.   COMMONWEALTH.



            Suffolk.      May 2, 2017. - August 25, 2017.

Present:    Gants, C.J., Hines, Gaziano, Lowy, Budd, & Cypher, JJ.1


    Bail.   Indigent.   Due Process of Law, Pretrial detainees.



     Civil action commenced in the Supreme Judicial Court for
the county of Suffolk on February 26, 2016.

     The case was heard by Lenk, J.


     Merritt Schnipper for the petitioner.
     Amal Bala, Assistant District Attorney, for the
Commonwealth.
     Shira Diner & Ryan M. Schiff, for Committee for Public
Counsel Services, amicus curiae, submitted a brief.


     HINES, J.   The practice of releasing a defendant on bail

prior to trial has been part of Massachusetts law since its

beginnings as a colony.    See Commonwealth v. Baker, 343 Mass.



     1
       Justice Hines participated in the deliberation on this
case and authored this opinion prior to her retirement.
                                                                    2


162, 165 (1961).     The Body of Liberties (1641), the oldest known

compilation of Massachusetts Colonial law, provided that:

    "18. No mans person shall be restrained or imprisoned by
    any Authority whatsoever, before the law hath sentenced him
    thereto, If he can put in sufficient securitie, bayle or
    mainprise, for his appearance, and good behaviour in the
    meane time, unlesse it be in Crimes Capital, and Contempts
    in open Court, and in such cases where some expresse act of
    Court doth allow it."

See Baker, supra.

    This statement, although nearly four centuries old,

summarizes well the dual functions of bail.     On the one hand,

release on bail preserves the liberty of the accused until he or

she has been afforded the full measure of due process in a

criminal trial.     "This traditional right to freedom before

conviction permits the unhampered preparation of a defense, and

serves to prevent the infliction of punishment prior to

conviction. . . .     Unless this right to bail before trial is

preserved, the presumption of innocence, secured only after

centuries of struggle, would lose its meaning" (citation

omitted).   Stack v. Boyle, 342 U.S. 1, 4 (1951).2   On the other


    2
       See Stack v. Boyle, 342 U.S. 1, 7-8 (1951) (Jackson, J.,
concurring) ("The practice of admission to bail, as it has
evolved in Anglo-American law, is not a device for keeping
persons in jail upon mere accusation until it is found
convenient to give them a trial. On the contrary, the spirit of
the procedure is to enable them to stay out of jail until a
trial has found them guilty. Without this conditional
privilege, even those wrongly accused are punished by a period
of imprisonment while awaiting trial and are handicapped in
                                                                    3


hand, the giving of security serves to assure that the defendant

will appear in court when called to do so.     "The right to

release before trial is conditioned upon the accused's giving

adequate assurance that he will stand trial and submit to

sentence if found guilty."    Id.   Where, as in this case, the

defendant is unable to give the necessary security for his

appearance at trial because of his indigence, the purpose of

bail is frustrated.    The cost to the defendant is the loss of

liberty and all the benefits that ordinarily would accrue to one

awaiting a trial to determine his guilt or innocence.

    The petitioner in this case, Jahmal Brangan, has been held

at the Hampden County jail since January 17, 2014 -- more than

three and one-half years -- because he has been unable to post

bail in the amounts ordered by a Superior Court judge following

his arrest and indictment for armed robbery while masked.      In

this appeal from a judgment of a single justice denying his

petition for relief under G. L. c. 211, § 3, Brangan contends

that the single justice's denial of his bail review request

should be reversed because the Superior Court judge's bail order

is unconstitutional.    In particular, he argues that the bail

order violated his right to due process because the judge failed

to give adequate consideration to his financial resources, and


consulting counsel, searching for evidence and witnesses, and
preparing a defense").
                                                                    4


set bail in an amount so far beyond his financial means that it

resulted in his long-term detention pending resolution of his

case.

     In resolving the issues Brangan raises, we address the

extent to which a judge must consider a criminal defendant's

financial resources in setting bail, whether such a defendant is

constitutionally entitled to an affordable bail, and the due

process requirements that apply if the judge settles on a bail

amount that is more than the defendant can pay, resulting in

pretrial detention.   For the reasons explained below, we

conclude that in setting the amount of bail, whether under G. L.

c. 276, § 57 or § 58, a judge3 must consider a defendant's

financial resources, but is not required to set bail in an

amount the defendant can afford if other relevant considerations

weigh more heavily than the defendant's ability to provide the

necessary security for his appearance at trial.   Where, based on

the judge's consideration of all the circumstances, including

the record of defaults and other factors relevant to the

likelihood of the defendant's appearance for trial, neither

alternative nonfinancial conditions nor a bail amount the

defendant can afford will adequately assure his appearance for


     3
       We use the term "judge" here as a shorthand reference to
the entire range of judicial officers who are authorized to set
bail under G. L. c. 276, §§ 57 and 58.
                                                                   5


trial, the judge may set bail at a higher amount, but no higher

than necessary to ensure the defendant's appearance for trial.

We conclude further that where it appears that a defendant lacks

the financial resources to post the amount of bail set, such

that his indigency likely will result in a long-term pretrial

detention,4 the judge must provide written or orally recorded

findings of fact and a statement of reasons for the bail

decision.   Based on the record before us, it does not appear

that the judge here considered Brangan's financial resources in

setting the bail.   Therefore, we reverse the judgment of the

single justice and remand this matter to the county court to

direct the Superior Court judge to conduct a new bail hearing

for Brangan as soon as possible in accord with the standards set

out in this opinion.5

     Background.    On January 17, 2014, a man wearing a cap,

scarf, and sunglasses robbed a bank in Springfield by passing a

note to the bank teller demanding money and stating that he had

a weapon.   The teller handed over less than $1,000 to the




     4
       We use the phrase "long-term pretrial detention" to mean
detention for a period of time longer than the defendant might
need to collect cash or collateral to post bail.
     5
       We acknowledge the amicus brief submitted by the Committee
for Public Counsel Services in support of Jahmal Brangan's
appeal.
                                                                   6


robber, who then fled.   The police arrested Brangan later that

same day after finding his thumbprint on the robbery note.6

     At the time, Brangan was on probation following a prison

sentence of from eight to twelve years for rape of a child and

related charges.7   Consequently, the probation department filed a

notice of surrender, and when Brangan appeared on February 10,

2014, a judge of the Superior Court set bail at $20,000 cash or

$200,000 surety based on the probation violation notice.      A

grand jury subsequently indicted Brangan for armed robbery while

masked under G. L. c. 265, § 17.   On March 10, 2014, at

Brangan's arraignment on the robbery charge, the judge set bail

in the amount of $50,000 cash or $500,000 surety.   Brangan

remained in custody pending his trial.

     In March, 2015, Brangan was tried and convicted on the

armed robbery charge, after which the judge revoked his bail.

Shortly after the entry of a guilty verdict, however, the trial

judge declared a mistrial due to certain statements in the

prosecutor's closing argument, and ordered Brangan to be


     6
       At trial, Brangan did not contest that the thumbprint on
the robbery note was his.
     7
       In 2001, Brangan pleaded guilty to indictments charging
three counts of rape of a child with force and four counts of
indecent assault and battery on a child under the age of
fourteen. He was sentenced to from eight to twelve years in
prison with five years of probation from and after the prison
sentence.
                                                                     7


retried;8 the Commonwealth then appealed from the mistrial order.

In the wake of the mistrial ruling, the judge held another bail

hearing on April 10, 2015, and reinstated the original bail at

$50,000 cash or $500,000 surety.    Brangan unsuccessfully sought

reduction of the bail in the Superior Court on July 15, 2015,

and December 28, 2015.

       In January, 2016, this court granted Brangan's application

for direct appellate review of the Commonwealth's appeal from

the trial judge's mistrial order.    We subsequently held that the

Commonwealth had no right to appeal from the mistrial order,

leaving the armed robbery charge to stand for retrial.    See

Commonwealth v. Brangan, 475 Mass. 143, 148, 149 (2016) (Brangan

I).9


       8
       Brangan orally moved for a mistrial at the end of the
Commonwealth's closing argument. After the jury verdict, the
trial judge accepted briefing and heard additional argument on
the motion, which he ultimately granted.
       9
       In Commonwealth v. Brangan, 475 Mass. 143 (2016) (Brangan
I), Brangan also argued that a retrial of the armed robbery
charge was barred by double jeopardy, but we concluded that this
argument was not properly before us at that time because he had
failed to timely appeal from the trial judge's ruling that
double jeopardy would not bar a retrial. See id. at 148-149.
We subsequently denied Brangan's petition for rehearing on that
issue, without prejudice to his filing a motion to dismiss in
the trial court and, if that motion was denied, seeking relief
under G. L. c. 211, § 3. In November, 2016, Brangan filed a
motion in the trial court to dismiss the armed robbery
indictment on double jeopardy grounds and, after the judge
denied that motion, filed a petition for relief in the county
court, which also was denied. We allowed Brangan's appeal from
                                                                   8


    Meanwhile, Brangan followed a long and tortuous path to

seek relief from his pretrial detention, filing four successive

petitions in the county court pursuant to G. L. c. 211, § 3.

The single justice denied Brangan's first petition without

prejudice due his failure to file the record materials necessary

to support his claims.

    On considering Brangan's second petition, the single

justice observed that the judge who had denied Brangan's motion

for reduction of bail on December 28, 2015, had not made any

oral or written findings or otherwise explained his decision.

Accordingly, the single justice remanded the matter for a

hearing to determine bail based on the factors set forth in

G. L. c. 276, § 58.   A judge of the Superior Court then

conducted a bail hearing and issued a written decision retaining

the original bail in the amount of $50,000 cash or $500,000

surety for the armed robbery charge and $20,000 cash or $200,000

surety for the probation violation.

    After Brangan filed a third petition, the single justice

remanded the matter to the Superior Court for consideration in

light of this court's decision in Brangan I, which had been

issued in the interim.   A Superior Court judge then conducted



that denial to proceed in light of the special consideration we
have given to double jeopardy claims. That appeal is scheduled
to be heard by this court in the coming term.
                                                                   9


another hearing and entered an order, dated September 19, 2016,

that reduced the defendant's bail to $20,000 cash or $200,000

surety for the armed robbery indictment and retained the

original bail in the amount of $20,000 cash or $200,000 surety

for the probation violation.

    Using a District Court form captioned "Reasons for Ordering

Bail, G. L. c. 276, § 58," the judge checked off the following

boxes as grounds for denying Brangan's release on personal

recognizance without surety:   the nature and circumstances of

the offense charged; the potential penalty he faced; his history

of mental illness; his record of convictions; the fact that his

alleged acts involved "abuse" as defined in G. L. c. 209A, § 1;

his history of orders issued against him under G. L. c. 209A;

and his status of being on probation.    In additional notes on

the form, the judge stated that he had considered the matter in

light of Brangan I in accord with the single justice's remand

order and heard oral argument and reviewed the parties'

submissions.   As further grounds for the bail determination, he

cited Brangan's prior sentence to State prison for multiple

counts of rape of a child; the fact that he faced a substantial

penalty if convicted of armed robbery; his history of c. 209A

orders; and the fact that he was on probation at the time he

allegedly committed the armed robbery.    The judge also ordered

that, if Brangan posted bail, his release would be on condition
                                                                     10


that he wear a global positioning system (GPS) bracelet, observe

a curfew, and stay away from the alleged victims.

    Brangan then filed a fourth petition with the county court,

arguing that the Superior Court judge had failed to give

meaningful consideration to his inability to make the bail, to

the equities in the case, and to his alternative proposal to

post $5,000 cash bail and wear a GPS bracelet.   Brangan further

asked the single justice to conduct a bail hearing de novo.        In

support of this petition, Brangan filed an affidavit stating

that the Superior Court judge had found him to be indigent when

he was first charged in January, 2014; that he had been

represented at trial and on appeal by court-appointed attorneys;

that his financial condition was far worse than when he was

first charged, since he had been incarcerated and unable to

work; and that there was no way he could hope to post the

$40,000 bail that the judge had set.

    The single justice denied the fourth petition, ruling that

Brangan's inability to make a particular bail amount did not

render the Superior Court judge's order a functional denial of

bail, and did not establish, without more, that Brangan was

entitled to extraordinary relief under G. L. c. 211, § 3.     The

defendant appealed from the single justice's order pursuant to

S.J.C. Rule 2:21, as amended, 434 Mass. 1301 (2001).   This court

ordered the appeal to proceed with briefing and argument.     We
                                                                     11


noted that filing a petition pursuant to G. L. c. 211, § 3, is

the proper means for seeking relief from bail determinations in

the Superior Court, see Commesso v. Commonwealth, 369 Mass. 368,

372 (1975), and that Brangan had no other means of obtaining

adequate appellate review.

    Discussion.    1.   Standard of review.   When a party appeals

from an adverse judgment by the single justice under G. L.

c. 211, § 3, we review the single justice's order for clear

error of law or abuse of discretion.    See Commonwealth v. Chism,

476 Mass. 171, 176 (2017); Leo v. Commonwealth, 442 Mass. 1025,

1026 (2004).   We must also consider the propriety of the

Superior Court judge's underlying bail order.    See Chism, 476

Mass. at 176-179 (evaluating underlying trial court order in

appeal from single justice judgment concerning that order).       In

reviewing both the single justice's judgment and the bail

judge's order, we must consider the legal rights at issue and

independently determine and apply the law, without deference to

their respective legal rulings.   See The Boston Herald, Inc. v.

Sharpe, 432 Mass. 593, 603 (2000).

    2.   Consideration of criminal defendant's financial

resources in setting bail.   The parties dispute whether the

Superior Court judge was obliged to consider Brangan's financial

resources in setting bail.   Based on our review of the

applicable statute and relevant decisions, we are persuaded that
                                                                  12


a judge must consider a criminal defendant's financial resources

in setting bail.

     We have held that G. L. c. 276, § 57, rather than § 58, is

the applicable statute governing bail proceedings in the

Superior Court.    See Querubin v. Commonwealth, 440 Mass. 108,

111 (2003); Serna v. Commonwealth, 437 Mass. 1003, 1003 (2002).

We reached that conclusion because § 57 specifically authorizes

judges of the Superior Court, among others, to admit a prisoner

to bail, whereas § 58 does not.10   See Serna, 437 Mass. at 1003.

And as the Commonwealth pointed out at oral argument, unlike

§ 58, § 57 does not specifically reference a defendant's

financial resources as a factor to be considered in setting

bail.11,12



     10
       General Laws c. 276, § 57, applies to "[a] justice of the
supreme judicial or superior court, a clerk of courts or the
clerk of the superior court for criminal business in the county
of Suffolk, a standing or special commissioner appointed by
either of said courts or, in the county of Suffolk, by the
sheriff of said county with the approval of the superior court,
a justice or clerk of a district court, [or] a master in
chancery." General Laws c. 276, § 58, applies to "[a] justice
or a clerk or assistant clerk of the district court, a bail
commissioner or master in chancery."
     11
       Although § 57 contains a list of factors to be considered
in setting bail that is similar to the list in § 58, § 57 omits
a defendant's financial resources as a factor, and it only
references these factors in the context of a case where a
defendant has been charged with certain acts involving abuse,
domestic violence, assault, or violations of abuse prevention
orders. See G. L. c. 276, § 57, second par.
                                                                 13


    A Superior Court judge, however, must still consider a

defendant's financial resources when setting bail as a matter of

common law.   We have said that, under § 57,

    "the factors that a judge is to consider when conducting a
    bail hearing are '(1) the nature and circumstances of the
    offense charged, (2) the accused's family ties, (3) his
    financial resources, (4) his length of residence in the
    community, (5) his character and mental condition, (6) his
    record of convictions and appearances at court proceedings
    or of any previous flight to avoid prosecution or (7) any
    failure to appear at any court proceedings'" (emphasis
    added).

Commonwealth v. Torres, 441 Mass. 499, 504 (2004), quoting

Querubin, 440 Mass. at 115 n.6.   These are common-law historical


    12
       As noted above, the Superior Court judge set Brangan's
bail using a District Court form that referenced G. L. c. 276,
§ 58, and in its briefs for the single justice and for us, the
Commonwealth argued that the Superior Court judge properly
exercised his discretion by considering the necessary factors
under § 58. Thus, the Commonwealth arguably waived its § 57
argument by omitting it from its briefs for the single justice
and for us. See Mass. R. A. P. 16 (a) (4), as amended, 367
Mass. 921 (1975). We nevertheless address this argument in
light of the limitations on briefing in proceedings under G. L.
c. 211, § 3, and S.J.C. Rule 2:21, as amended, 434 Mass. 1301
(2001), and the principle that a reviewing court may affirm a
lower court ruling on any ground supported by the record,
including legal theories not argued by the Commonwealth or
considered by the judge in the proceedings below. See Clair v.
Clair, 464 Mass. 205, 214 (2013); Commonwealth v. Va Meng Joe,
425 Mass. 99, 102 (1997). We also consider the Commonwealth's
argument because it presents "an important public question whose
resolution will affect more persons than the parties to the case
. . . [and which] is primarily a matter of statutory
interpretation, not dependent on the facts of the particular
case." Department of Community Affairs v. Massachusetts State
College Bldg. Auth., 378 Mass. 418, 424 (1979), quoting Lahey
Clinic Found., Inc. v. Health Facilities Appeals Bd., 376 Mass.
359, 372 (1978).
                                                                  14


factors for bail, see Querubin, 440 Mass. at 115 n.6, 120, which

must be reviewed by a Superior Court judge in setting bail in

all cases, even though § 57 does not explicitly list them all.13

     In addition to the common law, constitutional principles

also mandate consideration of a defendant's financial resources

in setting bail.     Both the Eighth Amendment to the United States

Constitution and art. 26 of the Massachusetts Declaration of

Rights prohibit excessive bail.14    The United States Supreme

Court has said that bail is "excessive" when it is "set at a

figure higher than an amount reasonably calculated to fulfill"

the purpose of assuring the presence of the accused at future

proceedings.     Stack, 342 U.S. at 5.   To be reasonable, that

calculation must be based on the individual character and

circumstances of each defendant, including his or her financial

circumstances.    "[T]he fixing of bail for any individual

defendant must be based upon standards relevant to the purpose

of assuring the presence of that defendant" (emphasis added).

     13
       Because these "common-law considerations are among the
same as those contained in G. L. c. 276, § 58," Querubin, 440
Mass. at 120, it is not surprising that Superior Court judges
sometimes rely on § 58 in their bail orders, as the bail judge
did in this case, even though they are proceeding under § 57.
     14
       The United States Supreme Court has said that the
restrictions in the Eighth Amendment apply to the States by
virtue of the Fourteenth Amendment to the United States
Constitution, see Hall v. Florida, 134 S. Ct. 1986, 1992 (2014),
although the Court has not specifically so held in a case
concerning excessive bail.
                                                                    15


Id. at 5.   These standards, which include "the financial ability

of the defendant to give bail," "are to be applied in each case

to each defendant."    Id. at 5 & n.3, citing former Fed. R. Crim.

P. 46(c).   "Each defendant stands before the bar of justice as

an individual. . . .   The question when application for bail is

made relates to each one's trustworthiness to appear for trial

and what security will supply reasonable assurance of his

appearance."   Id. at 9 (Jackson, J., concurring).

    Each eligible defendant's right to an individualized bail

determination that takes his or her financial resources into

account is further supported by the constitutional principles of

due process and equal protection.    For this reason, courts have

opined that it is unconstitutional to use master bail bond

schedules to set the same bail amount for everyone for a

particular offense, without regard to individual financial

circumstances or alternative conditions of release.    See, e.g.,

Pugh v. Rainwater, 572 F.2d 1053, 1057 (5th Cir. 1978) ("The

incarceration of those who cannot" meet master bond schedule,

"without meaningful consideration of other possible

alternatives, infringes on both due process and equal protection

requirements"); Walker vs. Calhoun, U.S. Dist. Ct., C.A. No.

4:15-CV-0170-HLM, slip op. at 49 (N.D. Ga. Jan. 28, 2016),

vacated on other grounds by Walker v. Calhoun, 682 Fed. Appx.

721 (2017) ("Any bail or bond scheme that mandates payment of
                                                                    16


pre-fixed amounts for different offenses to obtain pretrial

release, without any consideration of indigence or other

factors, violates the Equal Protection Clause" [citing cases]).

    A bail that is set without any regard to whether a

defendant is a pauper or a plutocrat runs the risk of being

excessive and unfair.   A $250 cash bail will have little impact

on the well-to-do, for whom it is less than the cost of a

night's stay in a downtown Boston hotel, but it will probably

result in detention for a homeless person whose entire earthly

belongings can be carried in a cart.    "What would be a

reasonable bail in the case of one defendant may be excessive in

the case of another."   Bennett v. United States, 36 F.2d 475,

477 (5th Cir. 1929).    In setting bail, a judge must always keep

in mind the question once posed by United States Supreme Court

Justice William O. Douglas:   "Can an indigent be denied freedom,

where a wealthy man would not, because he does not happen to

have enough property to pledge for his freedom? [citation

omitted]"   Pugh v. Rainwater, 557 F.2d 1189, 1195 (5th Cir.

1977), vacated on rehearing en banc, 572 F.2d 1053 (5th Cir.

1978).

    In this case, nothing in the bail judge's September 19,

2016, order or in the record establishes that he considered

Brangan's financial resources in setting bail at $40,000.     We

cannot say for sure whether he did or did not.    But as we
                                                                   17


explain below, the judge must address this issue in writing or

orally on the record in every case where bail is set in an

amount that is likely to result in a defendant's long-term

pretrial detention because he or she cannot afford it.

    3.   Whether bail must be affordable.   The arguments that

Brangan and the amicus present also raise the question whether

unaffordable bail is unconstitutional per se.   We conclude that

it is not, but in doing so, we recognize that the imposition of

unaffordable bail is subject to certain due process

requirements.

    We previously have stated that an "amount of bail [is] not

excessive merely because [a defendant] could not post it."     Leo

v. Commonwealth, 442 Mass. at 1026.   Other courts have similarly

concluded that a defendant is not constitutionally entitled to a

bail that is affordable.   See, e.g., United States v. McConnell,

842 F.2d 105, 107 (5th Cir. 1988) ("a bail setting is not

constitutionally excessive merely because a defendant is

financially unable to satisfy the requirement"); White v.

Wilson, 399 F.2d 596, 598 (9th Cir. 1968) ("The mere fact that

petitioner may not have been able to pay the bail does not make

it excessive."); Hodgdon v. United States, 365 F.2d 679, 687

(8th Cir. 1966), cert. denied, 385 U.S. 1029 (1967) (same);

State v. Pratt, 2017 VT 9, ¶15 (2017) ("the Constitution does

not require that a defendant have the ability to pay the
                                                                    18


required bail if it is otherwise reasonable").     Even Justice

Jackson, in arguing for the importance of an individualized bail

determination in Stack, qualified his point by noting that

"[t]his is not to say that every defendant is entitled to such

bail as he can provide."     Stack, 342 U.S. at 10 (Jackson, J.,

concurring).     Although the judge must take a defendant's

financial resources into account in setting bail, that is only

one of the factors to be considered, and it should not override

all the others.    Bail that is beyond a defendant's reach is not

prohibited.    Where, based on the judge's consideration of all

the relevant circumstances, neither alternative nonfinancial

conditions nor an amount the defendant can afford will

adequately assure his appearance for trial, it is permissible to

set bail at a higher amount, but no higher than necessary to

ensure the defendant's appearance.

    This conclusion is also supported by our previous decisions

upholding the constitutionality of pretrial detention in

Mendonza v. Commonwealth, 423 Mass. 771 (1996), and Querubin,

440 Mass. 108.    In Mendonza, which upheld pretrial detention of

a demonstrably dangerous defendant where it is necessary to

ensure the safety of other persons or the community pursuant to

G. L. c. 276, § 58A, we noted that although the statute

precludes a judge "from imposing a financial condition that

results in pretrial detention in order to assure the safety of
                                                                    19


other persons, . . . financial conditions having that effect are

not precluded for the purpose of assuring [the defendant's]

appearance before the court."   Mendonza, 423 Mass. at 774.15   In

Querubin, we upheld the constitutionality of pretrial detention

without bail of a defendant who poses a serious flight risk to

ensure that they will appear at future court proceedings.     See

Querubin, 440 Mass. at 116, 118-119.   If it is permissible

within the bounds of due process for a judge to hold a defendant

without any bail to assure his future appearance before the

court, as we held in Querubin, then it must also be permissible


    15
       General Laws c. 276, § 58A (3), provides that "[a]
justice may not impose a financial condition under this section"
-- i.e., due to the defendant's dangerousness -- "that results
in the pretrial detention of the person," but "[n]othing in this
section shall be interpreted as limiting the imposition of a
financial condition upon the person to reasonably assure his
appearance before the courts." Brangan cites language in the
Federal Bail Reform Act, 18 U.S.C. § 3142(c)(2) (2012), which
simply states that "[t]he judicial officer may not impose a
financial condition that results in the pretrial detention of
the person," without the qualification that appears in G. L.
c. 276, § 58A (3). But the Senate report accompanying the
Federal Bail Reform Act makes it clear that "[t]he purpose of
this provision is to preclude the sub rosa use of money bond to
detain dangerous defendants," and that "its application does not
necessarily require the release of a person who says he is
unable to meet a financial condition of release which the judge
has determined is the only form of conditional release that will
assure the person's future appearance." Sen. Rep. No. 98-225,
98th Cong., 2d Sess. (1984), reprinted in U.S. Code Cong. &
Admin. News (1984) 3182, 3199. In light of this commentary,
Federal courts have rejected the argument that this statutory
provision means that a defendant's "relative penury entitles him
to a lower bond." United States v. Mantecon-Zayas, 949 F.2d
548, 550 (1st Cir. 1991).
                                                                 20


for a judge to hold a defendant on an unaffordable bail for that

same purpose.16

     But having concluded that a defendant is not

constitutionally entitled to an affordable bail, it is important

for us to be clear about the strict standards that due process

     16
       Brangan and the amicus cite decisions by this court and
by the United States Supreme Court recognizing the general
principle that the constitutional rights of equal protection and
due process prohibit punishment of indigent persons solely for
their poverty, unless there is no other adequate alternative to
serve the State's interests in punishment and deterrence. See,
e.g., Bearden v. Georgia, 461 U.S. 660, 672-673 (1983)
(imprisonment of probationer for failure to pay fine or
restitution, "simply because, through no fault of his own, he
cannot pay . . . would be contrary to the fundamental fairness
required by the Fourteenth Amendment"); Commonwealth v. Henry,
475 Mass. 117, 122 (2016) ("imposing restitution that the
defendant will be unable to pay violates the fundamental
principle that a criminal defendant should not face additional
punishment solely because of his or her poverty"); Commonwealth
v. Gomes, 407 Mass. 206, 212 (1990), quoting Tate v. Short, 401
U.S. 395, 398 (1971) ("Generally, 'the Constitution prohibits
the State from imposing a fine as a sentence and then
automatically converting it into a jail term solely because the
defendant is indigent and cannot forthwith pay the fine in
full'"). Pretrial detention, however, is not a form of
punishment; it is regulatory in character, because it is
intended to serve the governmental goals of protecting the
public and assuring the presence of the accused at future
proceedings. See United States v. Salerno, 481 U.S. 739, 746-
747 (1987); Aime v. Commonwealth, 414 Mass. 667, 677-678 (1993),
citing Bell v. Wolfish, 441 U.S. 520, 535-537 (1979). Holding a
defendant on bail beyond his or her ability to pay is not,
therefore, tantamount to punishing the defendant for his or her
poverty. See Mantecon-Zayas, 949 F.2d at 550, quoting United
States v. Jessup, 757 F.2d 378, 388-389 (1st Cir. 1985) ("when
faced with a risk of flight, judge is entitled to set bail at
level he finds reasonably necessary; if defendant cannot afford
bail, and must be detained pending trial, it is 'not because he
cannot raise the money, but because without the money the risk
of flight is too great'").
                                                                   21


imposes when a defendant is held on an unaffordable bail.    We

turn to that subject next.

    4.   Due process requirements.   We begin by reviewing basic

constitutional due process principles and our previous decisions

applying these principles to pretrial detention.   The Fourteenth

Amendment to the United States Constitution and arts. 1, 10, and

12 of the Massachusetts Declaration of Rights establish a

fundamental right to liberty and freedom from physical restraint

that cannot be curtailed without due process of law.   See

Lavallee v. Justices in the Hampden Superior Court, 442 Mass.

228, 234 (2004); Querubin, 440 Mass. at 112; Mendonza, 423 Mass.

at 778-779; Aime v. Commonwealth, 414 Mass. 667, 676-677 (1993).

Pretrial detention encroaches on that fundamental right insofar

as it subjects a defendant to governmental restraint without

having received the full measure of due process to which the

defendant is entitled before he or she can be punished under the

criminal law.   See Mendonza, 423 Mass. at 778-779.

    In our previous decisions analyzing the constitutionality

of pretrial detention, we have considered two aspects of due

process -- substantive and procedural -- following Supreme Court

precedents.   Under the test of substantive due process, "[w]here

a right deemed to be 'fundamental' is involved, courts 'must

examine carefully the importance of the governmental interests

advanced and the extent to which they are served by the
                                                                   22


challenged regulation,' Moore v. East Cleveland, 431 U.S. 494,

499 (1977), and typically will uphold only those statutes that

are narrowly tailored to further a legitimate and compelling

governmental interest."     Querubin, 440 Mass. at 112, quoting

Aime, 414 Mass. at 673.     "When government action depriving a

person of life, liberty, or property survives substantive due

process scrutiny, it must still be implemented in a fair manner.

Mathews v. Eldridge, 424 U.S. 319, 335 (1976).     This requirement

traditionally has been referred to as 'procedural' due process."

Querubin, 440 Mass. at 116, quoting United States v. Salerno,

481 U.S. 739, 746 (1987).

    Applying these standards, we have held that in certain

limited circumstances a judge may properly detain a defendant

before trial, where such detention is demonstrably necessary to

ensure the defendant's appearance at future proceedings or to

protect public safety.    In Querubin, we affirmed a Superior

Court judge's order denying bail under G. L. c. 276, § 57, to a

defendant indicted for drug trafficking who plainly posed a

serious flight risk:     he had fled from police who sought to

arrest him on a default warrant; had used an alias; had failed

to appear in court in response to a summons; and had been

apprehended by border patrol officers as he attempted to flee

into Mexico.   See Querubin, 440 Mass. at 109-110, 119.    After

reviewing the statutory procedures and common-law standards for
                                                                   23


determining whether a defendant should be held without bail

because he is likely to flee, we concluded that these procedures

are "narrowly tailored to the State's legitimate and compelling

interest in assuring the defendant's presence at trial," id. at

116, and that the hearing requirement afforded the defendant

sufficient procedural protection, see id. at 117-119.

    In Mendonza, we upheld the statutory scheme in G. L.

c. 276, § 58A, which was enacted in 1994 to authorize temporary

preventive pretrial detention of a defendant charged with

certain violent or dangerous crimes due to his or her

dangerousness.   We noted that the statute's application is

limited to cases where probable cause has been found to charge a

defendant with certain serious offenses (such as crimes

involving force, the risk of force, abuse, or violation of

domestic violence protection orders); that the judge must

conduct an evidentiary hearing at which the defendant has the

right to testify, present evidence, and cross-examine witnesses;

and that the judge may order pretrial detention only where the

judge finds, based on based on clear and convincing evidence,

that no conditions of release will reasonably assure the safety

of any other person or the community.   See Mendonza, 423 Mass.

at 774, 780-781, 792; G. L. c. 276, § 58A (1), (3), and (4).      We

also pointed out that these safeguards were similar to those

contained in the Federal Bail Reform Act of 1984, 18 U.S.C.
                                                                    24


§ 3142, on which § 58A was modeled, and we relied extensively on

the Supreme Court's decision in Salerno, 481 U.S. 739, which

upheld a similar preventive detention scheme in that statute.

See Mendonza, 423 Mass. at 780-781, 786-788.

    Conversely, in Aime we invalidated earlier 1992 amendments

to the bail statutes that would have allowed a judge to detain a

defendant on high bail due to his or her perceived

dangerousness, without adequate due process safeguards to ensure

the accuracy of that determination.      In that case, a District

Court judge ordered an alleged drug dealer to be held on bail of

$100,000 cash or $1 million surety because he was a danger to

the community.    See Aime, 414 Mass. at 669 & n.2.    The judge

relied on amendments to G. L. c. 276, § 58, that authorized

judicial officers, in setting bail, to take into account the

"seriousness of the danger to any person or the community that

would be posed by the prisoner's release."      Aime, supra at 671,

quoting St. 1992, c. 201, § 4.      We determined that these

amendments did not meet the due process requirements of the

Fourteenth Amendment because they "essentially grant[ed] the

judicial officer unbridled discretion to determine whether an

arrested individual is dangerous" and lacked "procedures

'designed to further the accuracy' of the judicial officer's

determination."   Aime, supra at 682, quoting Salerno, 481 U.S.

at 751.   See Aime, supra at 683.
                                                                    25


    In sum, "in our society liberty is the norm, and detention

prior to trial or without trial is the carefully limited

exception."    Aime, 414 Mass. at 677, quoting Foucha v.

Louisiana, 504 U.S. 71, 83 (1992).    Although the Federal

Constitution and the Massachusetts Declaration of Rights do not

prohibit pretrial detention, they permit it only "in carefully

circumscribed circumstances and subject to quite demanding

procedures."   Mendonza, 423 Mass. at 790.

    With this background, we now turn to the present case.        In

her judgment denying Brangan's most recent petition, the single

justice ruled:   "That [Brangan] is unable to pay a particular

amount of bail does not, contrary to [his] assertion,

necessarily render it a functional denial of bail.   Nor does it

establish, without more, that [he] is entitled to the

extraordinary relief available under G. L. c. 211, § 3."     We

disagree.

    It is certainly true that "a defendant does not have a

constitutional right to be released on bail prior to trial."

Querubin, 440 Mass. at 112.    Still less does a defendant have a

constitutional right to an affordable bail, as we discussed

above.   But where a judge sets bail in an amount so far beyond a

defendant's ability to pay that it is likely to result in long-

term pretrial detention, it is the functional equivalent of an

order for pretrial detention, and the judge's decision must be
                                                                    26


evaluated in light of the same due process requirements

applicable to such a deprivation of liberty.   See Aime, 414

Mass. at 676.17

     Here, the record shows that Brangan is indigent and that

bail has been set in an amount that is unattainable for him,

resulting in his long-term pretrial detention.    Accordingly, we

must analyze the bail judge's order and the record below in

light of the requirements of due process applicable to pretrial

detention.   Based on that review, we discern three particular

areas of concern, for which we articulate three corresponding

due process standards applicable to such cases.

     First, a judge may not consider a defendant's alleged

dangerousness in setting the amount of bail, although a

defendant's dangerousness may be considered as a factor in

setting other conditions of release.   Using unattainable bail to

detain a defendant because he is dangerous is improper.    If the

     17
        In Aime, the Commonwealth argued that the 1992 amendments
allowing a judge to consider a defendant's dangerousness in
setting a bail amount "merely added an additional, unremarkable
factor to the bail statute" and did not enact a preventive
detention scheme. Aime, 414 Mass. at 676. We rejected that
argument. We reasoned that, even though the amendments did "not
explicitly provide for preventive detention," they effectively
sought "to accomplish this goal through the use of the surety
which an arrestee must post in order to be admitted to bail," by
"setting unattainable surety in order to secure the detention of
an arrestee." Id. at 676 & n.12. We therefore concluded that
"[t]he amendments infringe[d] on the individual interest in
freedom from detention" and must be analyzed on that basis. Id.
at 676.
                                                                   27


Commonwealth wishes to have a defendant held pretrial because he

poses a danger to another person or the community, it must

proceed under G. L. c. 276, § 58A, and comply with that

statute's procedural requirements.

    We emphasize this point because the Commonwealth's briefs

submitted to us and to the single justice repeatedly present

arguments concerning Brangan's dangerousness, stating for

example that he "fails to acknowledge the danger that he poses

to the community," "created a public safety risk," "endangered

the public," and "poses a threat to public safety" and "a

security risk," while citing his rape convictions, the abuse

prevention orders issued against him, and his alleged failure to

register as a sex offender.   These would be proper arguments if

the Commonwealth had sought to detain Brangan under § 58A, but

it never did so.   The use of dangerousness as a discretionary

factor in setting bail without the kind of procedural safeguards

found in § 58A and in the Federal Bail Reform Act is precisely

what Aime prohibits.   See Aime, 414 Mass. at 680 ("State may not

enact detention schemes without providing safeguards similar to

those which Congress incorporated into the Bail Reform Act");

see also Mendonza, 423 Mass. at 774 (under G. L. c. 276, § 58A,

"judge is precluded from imposing a financial condition that

results in pretrial detention in order to assure the safety of

other persons," which "should end any tendency to require high
                                                                    28


bail as a device for effecting preventive detention").    We

recognize the importance of protecting public safety by

providing "preliminary relief for the government in

incapacitating persons who pose a particular danger to the

public."   Id. at 781.   But this relief must be obtained through

the constitutionally appropriate process in § 58A.

    We might be less concerned about the Commonwealth's

dangerousness arguments if it were clear from the record that

the bail judge's determination was based solely on Brangan's

risk of flight.   But the bail order does not specifically weigh

that risk.   We also note that the evidence that Brangan posed a

serious flight risk seems relatively equivocal, taking into

account his voluntary appearance when the police sought to talk

with him after the robbery and the evidence that he never missed

a court appearance.

    Second, where, based on a defendant's credible

representations and any other evidence before the judge, it

appears that the defendant lacks the financial resources to post

the amount of bail set by the judge, such that it will likely

result in the defendant's long-term pretrial detention, the

judge must provide findings of fact and a statement of reasons

for the bail decision, either in writing or orally on the
                                                                    29


record.18    The statement must confirm the judge's consideration

of the defendant's financial resources,19 explain how the bail

amount was calculated, and state why, notwithstanding the fact

that the bail amount will likely result in the defendant's

detention,    the defendant's risk of flight is so great that no

alternative, less restrictive financial or nonfinancial

conditions will suffice to assure his or her presence at future

court proceedings.20


     18
       Judges in the District Court, Boston Municipal Court, and
Juvenile Court routinely make findings, based on the factors in
G. L. c. 276, § 58, in support of their bail decisions. Thus, a
requirement of written or oral findings on the record does not
impose an undue hardship in the setting of bail. In setting
bail under G. L. c. 276, § 57, a judge may rely on the factors
set forth in G. L. c. 276, § 58, to demonstrate that a
defendant's right to due process has been given appropriate
consideration. Although the District Court form, captioned
"Reasons for Ordering Bail, G. L. c. 276, § 58," may be useful
in making the findings required in this opinion, we caution that
further elaboration of the findings may be prudent where the
bail is likely to result in a defendant's long-term detention.
     19
       As the amicus suggests, consideration of a defendant's
financial resources may be facilitated by reviewing the report
prepared by the probation department to determine whether a
defendant qualifies as indigent for court-appointed counsel.
See Mass. R. Crim. P. 7 (a) (3) and 7 (b) (2), as appearing in
461 Mass. 1501 (2012); S.J.C. Rule 3:10, § 5 (a), as appearing
in 475 Mass. 1301 (2016); G. L. c. 211D, § 2A (a)-(c).
     20
       For example, where a judge imposes a bail amount that is
greater than what a defendant represents that he can pay, that
amount might be justified where the judge states on the record
that she has considered alternative nonfinancial conditions and
a lesser bail amount, but has concluded that they would not be
sufficient to assure the defendant's appearance at future
proceedings given the defendant's record of defaults or other
                                                                   30


       We borrow these requirements, with some modifications, from

United States v. Mantecon-Zayas, 949 F.2d 548 (1st Cir. 1991),

which addressed a comparable situation where the bail imposed by

the Federal District Court judge exceeded the defendant's means,

resulting in his pretrial detention.    In that case, the United

States Court of Appeals for the First Circuit concluded that the

District Court judge could properly insist on a financial

condition that the defendant could not afford to pay, resulting

in his detention, provided that the judge complied with the

procedural requirements for a valid detention order, including

written findings of fact and a written statement of reasons for

determining that the financial condition imposed was an

indispensable condition for release.    See id. at 550-551.   In

particular, the First Circuit found the District Court judge's

bail order to be deficient because it gave "no indication of the

reasons underlying the district court's calculation of the

bond," and did not explain "why the district court thought a

$200,000 bond was necessary in the face of the defendant's

representation that he could not afford such a bond."     Id. at

551.



indications that the defendant poses a flight risk. The judge
also is not bound by a defendant's representation as to what
bail he can reasonably afford, and may indicate that she is not
convinced, based on the record, that the defendant cannot post
bail in the amount set by the judge.
                                                                  31


     Although the rulings in Mantecon-Zayas were based on the

language and legislative history of the Federal Bail Reform Act,

the same requirements are also dictated by the constitutional

demands of due process.   A statement of findings and reasons,

either in writing or orally on the record, is a minimum

requirement where a defendant faces a loss of liberty.21    See

Commonwealth v. Hartfield, 474 Mass. 474, 484 (2016) ("Due

process requires that a judge issue a written statement

regarding the evidence relied upon and the reasons for revoking

probation"); id. at 484 n.8 (due process requirement is

satisfied where judge makes oral statements on record and

transcript is available); Doucette v. Massachusetts Parole Bd.,

86 Mass. App. Ct. 531, 539 (2014), quoting Commonwealth v.

Durling, 407 Mass. 108, 113 (1990) ("The minimum requirements of

due process include 'a written statement by the factfinders as

to the evidence relied on and reasons for revoking . . .

parole'").   Requiring a particularized statement as to why no

less restrictive condition will suffice to assure the


     21
       We recognize the practical difficulty in determining
whether a particular bail amount will result in the defendant's
pretrial detention and whether, in that case, the judge must
make findings in accordance with due process justifying the bail
order. Therefore, to ensure that findings are made, the better
practice is to make findings in every case where the defendant
is not released on personal recognizance and the defendant
represents in good faith to the judge that he or she is unable
to make the bail set by the judge.
                                                                   32


defendant's presence at future court proceedings is appropriate

in light of the applicable standard of substantive due process,

that the procedure be "narrowly tailored to the State's

legitimate and compelling interest in assuring the defendant's

presence at trial."   Querubin, 440 Mass. at 116.   It also is

important because holding a defendant on an unaffordable bail

amount defeats bail's purpose of securing pretrial liberty.22

     Measured against these requirements, the bail order here is

deficient.   The order lists the factors the judge considered in

ordering bail and cites Brangan's previous sentence for rape of

a child, the potential penalty he faced if convicted of armed


     22
       There are also practical reasons why it is sensible to
avoid detaining a defendant on unaffordable bail unless it is
truly necessary. Pretrial detention disrupts a defendant's
employment and family relationships, with often tragic
consequences. See Pinto, The Bail Trap, The New York Times
Magazine (Aug. 13, 2015). Pretrial detention disproportionately
affects ethnic and racial minority groups. See Jones & Forman,
Exploring the Potential for Pretrial Innovation in
Massachusetts, The Massachusetts Institute for a New
Commonwealth, Justice Reinvestment Policy Brief Series, at 3-4,
5 (Sept. 2015); Bail Fail: Why the U.S. Should End the Practice
of Using Money for Bail, Justice Policy Institute, at 15-16
(Sept. 2012) (Bail Fail). And funds expended on pretrial
detention might be better spent on treatment and supervision.
See Jones & Forman, supra at 5-6. Research indicates that
alternatives to cash bail and secured bonds, such as unsecured
bonds, pretrial supervision, and court notification systems, may
be just as effective in assuring that a defendant appears at
future court proceedings. See Jones, Unsecured Bonds: The As
Effective and Most Efficient Pretrial Release Option, Pretrial
Justice Institute (Oct. 2013); Bail Fail, supra at 27-35; Moving
Beyond Money: A Primer on Bail Reform, Harvard Law School
Criminal Justice Policy Program, at 14-18 (Oct. 2016).
                                                                  33


robbery, the previous orders issued against him under G. L.

c. 209A, and the fact that he was on probation when he allegedly

committed the robbery.   Although these are appropriate matters

to take into account in setting bail, the order does not

evidence any consideration of Brangan's financial resources, and

does not explain how the judge calculated the bail amount, how

Brangan's criminal history demonstrated that he posed a serious

flight risk, or why that risk was so great that it necessitated

a bail amount beyond his means.   Furthermore, the order does not

explain why the judge rejected Brangan's alternative proposal

that he be released on $5,000 cash with the condition that he

wear a GPS tracking bracelet.

    Third, when a bail order comes before a judge for

reconsideration or review and a defendant has been detained due

to his inability to post bail, the judge must consider the

length of the defendant's pretrial detention and the equities of

the case.   In upholding pretrial detention of a defendant to

assure his or her future presence in court or safeguard other

persons or the community, we have emphasized the temporary

nature of this detention.   See Querubin, 440 Mass. at 118 ("If a

defendant is held pending trial, the consequences to him,

although significant, are temporary"); Mendonza, 423 Mass. at

781, 790 ("the conclusion of the trial itself provides an

inevitable end point to the State's preventive authority," and
                                                                  34


detention under G. L. c. 276, § 58A, is "temporary and

provisional").    That justification for pretrial detention erodes

the longer a defendant has been held.

     In this case, Brangan has been held for more than three and

one-half years.    In their briefs the parties exchange

accusations as to the underlying reasons for the delay in

bringing Brangan to trial, and we do not purport to assess where

the fault, if any, lies.23   We only note that the delay is an

additional factor to be considered in determining whether

Brangan's continued pretrial detention is justified.

     Conclusion.   For the reasons stated above, we reverse the

order of the single justice and remand this case to the county

court for entry of an order directing the Superior Court judge

to conduct a new bail hearing for Brangan as soon as possible in

accord with the standards set out in this opinion.

     23
       Much of the delay appears to have resulted from the
mistrial that the trial judge ordered based on the prosecutor's
closing statement, and by the Commonwealth's interlocutory
appeal from that order, which we rejected in Brangan I on the
ground that the judge's order was not appealable. Brangan I,
475 Mass. at 145-146, 148, 149. In the context of determining
whether a defendant's speedy trial rights have been violated,
the United States Supreme Court has observed that "an
interlocutory appeal by the Government ordinarily is a valid
reason that justifies delay," but "a delay resulting from an
appeal would weigh heavily against the Government if the issue
were clearly tangential or frivolous." United States v. Loud
Hawk, 474 U.S. 302, 315-316 (1986). Brangan's pending appeal on
double jeopardy grounds, which we declined to consider as part
of Brangan I, supra at 148-149, also appears to have delayed his
retrial.
              35


So ordered.
