District court judges often impose pretrial release conditions on criminal defendants. Such conditions may include drug and alcohol screens, GPS monitoring, and stay-away orders.
Massachusetts’ bail statute (G.L. c. 276, Sec. 58) does not expressly permit the imposition of pretrial release conditions.
According to the SJC
no explicit statutory authority exists under G.L. c. 276, Sec. 58 to make a defendant’s pretrial release subject to conditions.
Commonwealth v. Dodge, 428 Mass. 860, 865 (1999).
However,
other provisions of c. 276, namely §§ 42A, 58A, and 87, give a judge authority to set conditions of release. particular, § 87 enables a judge, with the defendant’s consent, to place the defendant on pretrial probation and then to set conditions, again with his consent, for release on personal recognizance or bail.
Jake J v. Commonwealth, 433 Mass. 70, 70-71 (2000)
Conditions imposed under Section 87 must reasonably relate to “probationary goals” (e.g., punishment, deterrence, retribution, protection of the public, or rehabilitation) or they risk violating the defendant’s constitutional rights.
For instance, in Commonwealth v. Gomes, the Appeals Court held that a judge could not impose drug and alcohol testing on a defendant/probationer when drugs and alcohol played no part in his case.
Although a probationary condition is not necessarily invalid simply because it affects constitutional rights, the condition must be reasonably related to legitimate probationary goals in order to withstand constitutional scrutiny…Ordering a defendant to submit to random drug or alcohol testing as a condition of probation, therefore, is not permissible unless it is reasonably related to one or more of the goals of probation: punishment, deterrence, retribution, protection of the public, or rehabilitation. This is a fact-intensive inquiry, dependent on the circumstances and characteristics of the particular defendant and his offenses…An impermissible probationary condition (particularly one carrying constitutional implications) is akin to an illegal sentence
Most pretrial conditions are set at arraignment. Violating a condition could give rise to a motion for bail revocation. For more on bail revocation see my earlier post Bail Revocation in Massachusetts.