SPRINGFIELD, Mass. (WWLP) – It’s midnight, a suspect with a lengthy criminal record gets arrested in Springfield for allegedly driving a stolen motor vehicle and possession of drugs with intent to distribute.
As soon as he gets to the police department, the clock starts ticking. That’s because under state law, that suspect has the right to a bail hearing within 6-hours of their arrest, regardless of the time of day.
They’re called “after hours bail hearings,” and typically take place at police departments when courthouses are closed. The person setting bail isn’t a judge, in some cases, they may have no legal experience at all.
The 22News I-Team started looking into these hearings, after we dug into the criminal record of that suspect from Springfield who got arrested for driving a stolen car and possession of drugs with intent to distribute. It was his ninth arrest, but he was back on the streets that same night after posting $1,000 bail at an after-hours hearing.
The I-Team learned clerk magistrates, assistant magistrates, and bail commissioners are in charge of after-hour bail hearings. They’re on call, and determine who gets bail and for how much. No judge is present and no law degree is required.
In big cities like Springfield, they have enough clerk magistrates and assistant magistrates to set bail at after-hour hearings. All of them have law degrees.
In smaller cities and towns, bail commissioners conduct a majority of the hearings. They’re ordinary citizens who are appointed by court administrators. They could be a truck driver, teacher, or retail worker by day, then be the ones responsible for setting bail by night. Many of them don’t have any background in the criminal justice system or law enforcement.
Springfield Police Commissioner Cheryl Clapprood told the I-Team, the system is arbitrary. “It’s the on-duty clerk of courts who’s basically the on-call judge. We’ll get clerks who are very sympathetic to our cause and the seriousness of the crime and the bail may be a little higher, where some clerks may not be.”
Bail commissioners and clerks only get paid for after-hours hearings if the defendant posts bail. It’s a $40 fee that goes directly into their pockets. If the suspect can’t afford the bail, commissioners and clerks will walk away from the hearing empty handed.
The I-Team crunched numbers from the state, and discovered commissioners and clerks made a total of $2-million in bail fees last year alone.
Former Springfield Mayor Mary Hurley is a retired judge, who now sits on the Governor’s council.
TAMARA: “Do you think the $40 fee is incentive to let someone go?”
HURLEY: “It shouldn’t be, whether or not it is depends on a lot of different circumstances.”
Hurley told the I-Team, no one is getting rich off after-hours bail hearings.
She also said these hearings are optional for clerk magistrates, which means the state needs to offer some type of incentive to get volunteers. “I think we have a very good system. If someone gets arrested and you’re asking someone to get out of bed in the middle of the night to go bail them out, is $40 enough? I’m not sure it would be for me.”
The system may also have some flaws. Remember the suspect we told you about who posted his $1,000 bail in Springfield? We found out that when he was arraigned in court the following day on the same charges, the judge bumped up his bail up to $10,000.
Hurley told the I-Team, clerks and commissioners do the best they can with the information they have. “Between the time they set bail and the time the person gets to court, there may be additional facts that have been discovered, that are presented to the Assistant District or District Attorney who’s doing the bail argument.”
She said the information available at the arraignment may not have been available the night of the arrest. “Monday morning quarterbacking is great the for the person who’s talking about the plays after, but when you’re setting bail, you have a certain amount of facts, things can change or develop over a period of time.”
However, that doesn’t make it any less frustrating for the officers who have to watch repeat offenders get out on bail, hours after an arrest. “It’s arbitrary really right now, that’s why it’s discouraging to police officers,”
Commissioner Clapprood is pushing the state to expand the criteria to consider someone a danger to society. That would make it easier to hold repeat offenders, until a judge can hear the case.
FACTORS WHEN SETTING BAIL:
- The type of crime the defendant is accused of committing
- The potential penalty, or sentence, for that crime.
- They also have to determine if the defendant:
- Is a flight risk
- Has a Board of Probation (BOP) record or other criminal records
- Has a history of defaults — in other words, if the defendant has a history of not showing up when they’re supposed to be at court
WHETHER THE DEFENDANT IS:
- On probation or parole, or has other open cases
- From the area or has family in the area
- In domestic violence cases, if a defendant’s release will harm the community and/or the victim.
All these factors are in addition to determining whether a defendant is likely to come to court on their court date.
To read more about the state’s bail system, click here.