In Massachusetts, the prosecution can move to hold somebody without bail for up to 120 days. This means that the defendant won't be allowed to post bail and can be held in jail before they are convicted of anything. It sure will not feel like they are “innocent until proven guilty” as they are held in jail awaiting trial. This is why it is is so important to attack a dangerousness hearing aggressively.
Under Massachusetts General Laws Chapter 276, Section 58A, “The commonwealth may move, based on dangerousness, for an order of pretrial detention or release on conditions for a felony offense that has as an element of the offense the use, attempted use or threatened use of physical force against the person of another or any other felony that, by its nature, involves a substantial risk that physical force against the person of another may result…”
If the appropriate initial criteria is met, a date will be set for the dangerousness hearing to occur. Except for good cause, the hearing will likely occur within seven (7) days after a defendant's arraignment. A defendant has a constitutional right to have the assistance of a lawyer at the hearing.
The judge will try to determine if the person is considered a danger. The judge will determine whether the person should be detained or impose conditions of release. In the judge's analysis, they will consider the following:
- Nature and seriousness of the danger posed to any person or the community that would result by the person's release;
- Nature and circumstances of the offense charged;
- Potential penalty the person faces;
- Family ties, employment record;
- History of mental illness, reputation;
- Risk that the person would attempt to obstruct justice or threaten, injure or intimidate any witnesses; and
- Record of the person's convictions.
After the hearing, the defendant can appeal the decision to the Superior Court. If you or a loved one is facing a dangerousness hearing, you should immediately contact an experienced criminal defense lawyer.