Some say judges don't set bail high enough for heinous crimes
Bail amounts set in two recent court cases – $50,000 for a man caught spray painting a courthouse and $10,000 for a Kingston man accused of raping a 5-year-old girl – illustrate what most people consider a hard-to-swallow fact: Not all bail amounts seem to fit the crime.
That was on stark display in Plymouth District Court on Monday when Joseph Gardner, 26, was arraigned for allegedly raping a 3-year-old girl this past weekend. The Kingston resident had been arrested in August for allegedly raping a 5-year-old girl but was freed in early October after posting $10,000 bail. Prosecutors had asked that bail be set at $150,000 to $200,000. Two judges felt $10,000 was enough.
“He would have been in jail, and this poor little girl wouldn’t have had to go through this,” the mother of the 5-year-old said after Gardner pleaded innocent Monday to the second child rape charge.
Legal experts point out that bail is not intended to prevent crime or punish a defendant – who is presumed innocent. It is a tool to ensure defendants show up for court hearings and don’t skip town.
“The law requires a judge to consider a variety of factors,” David Frank of Massachusetts Lawyers Weekly said. “It’s not as simple as the judge looking at a horrific allegation and saying, ‘We should just lock him up and throw away the key.’”
Employment status, criminal history and ties to the community are all factors judges weigh in deciding how much money an accused criminal must put up for his freedom. Prosecutors and defense attorneys use these elements to argue whether a defendant is likely to flee if released before trial.
The circumstances and nature of an alleged crime are also considered. Someone with a history of defaulting on court appearances or of giving authorities a false name may be seen as a potentially greater flight risk.
In a case last week in Brockton District Court, Judge Paul Dawley set $50,000 bail for Andrew Steele, a 45-year-old man from Tacoma, Wash., accused of vandalizing the front of the courthouse with red spray paint in an act of protest over the outcome of his divorce case.
The prosecutor, who asked that bail be set at $10,000, pointed out that Steele lives hundreds of miles away and had five known aliases. Steele was still in Plymouth County jail Monday.
Gardner, who has lived in the area for years, had a pending drunken driving charge against him but little else on his criminal record when Kingston police arrested him in August in the first alleged rape.
At that arraignment, Assistant District Attorney Laura Weierman asked Judge Thomas Brownell to set bail at $200,000 and order Gardner, if released, to avoid contact with the victim or her family. She also asked Brownell to revoke Gardner's bail on the drunken driving charge because the first alleged rape happened while that case was still pending. If Brownell had agreed, Gardner could have been held without bail for 60 days.
When considering revoking bail, judges are supposed to consider whether, "the release of said person will seriously endanger any person or the community." The judge is also supposed to consider, "the gravity, nature and circumstances of the offenses charged," according to state law.
Prosecutors did not request a dangerousness hearing in August at which they could have argued that Gardner should be held without bail for up to 90 days. Brownell had already ruled on Gardner's dangerousness when he refused to revoke his bail.
Kingston Police Chief Joseph Rebello, whose department arrested Gardner in both rape cases, said the bail amount did not surprise him.
“I’ve been a cop in this system for 31 years,” he said.
Rebello said the presumption of innocence means dangerous people are sometimes allowed to roam free before trial. Society is “too forgiving,” he said, and Gardner’s case exemplifies the need to review the bail system.
“Over the years, I think, the system has become more and more broken,” Rebello said.
The wide discretion given to judges in setting bail irritates many prosecutors, who routinely watch judges whittle down the bail amounts they seek.
Plymouth District Attorney Timothy Cruz said Brownell set bail too low in the first child rape case, particularly because Gardner had been accused of breaking into a home to commit the sexual assault.
“It’s a terrible situation,” Cruz said. “Now there’s allegations regarding two babies that have been injured as a result.”
Gardner was indicted by a grand jury in September in the August rape case. Brockton Superior Court Judge Joseph Walker III kept bail at $10,000 at an Oct. 1 arraignment despite a prosecutor’s request for it to be set at $150,000. Walker agreed to order Gardner to avoid contact with the victim or her family, Middleton said.
Gardner’s parents posted the bail money a week later.
“Picking a correct bail is an art, not a science,” said John Birtwell, a former chief District Court prosecutor for Norfolk County who has argued bail cases before Brownell.
“Do I think Tom Brownell could have saved himself some heartache by going a little heavier? Yeah,” Birtwell said. “But he’s a hell of a judge with years of experience. If this is what he thought was appropriate, I don’t think it was some flight of fancy – he didn’t reach it cavalierly.”
John P. Kelly may be reached firstname.lastname@example.org.