Last week we filed an amicus brief before the Massachusetts Supreme Judicial Court, casting doubt on the statutory authority to impose GPS monitoring and other burdensome, liberty-restricting conditions under our general bail statute.
It is a core tenet of our constitutional system and statutory framework that a criminal defendant is presumed innocent until proven guilty beyond a reasonable doubt. When a criminal accusation is leveled against a defendant, the defendant retains significant liberty interests. Under Massachusetts law, unless a judge determines that pretrial conditions are necessary to reasonably assure the defendant’s return to court or to preserve the integrity of the judicial process, the conditions are unauthorized in most cases.
There are serious practical effects of any liberty-restricting condition imposed pretrial. A stay away order or exclusion zone can render someone homeless, interrupt treatment regimens, limit access to public transit, or disrupt social relationships and vital sources of stability; a GPS can render someone jobless because of its associated stigma and visible symbolism of involvement in the criminal system; curfews, mandatory drug or alcohol testing, a SCRAM monitor, check-ins with pretrial services or Community Corrections: all of these routine pretrial restrictions and obligations burden liberty to different degrees and create independent sources for future liberty restrictions; with each new condition comes the opportunity for a defendant to violate that condition, even accidentally, and be sent to jail as a result of that violation.
The liberty interests at stake for any conditions imposed pretrial are substantial. To allow judges to chip away at the presumption of innocence, imposing conditions that are not necessary to achieve a lawful statutory purpose, compromises the foundation of our criminal system. The Massachusetts ACLU filed a complementary brief, arguing in parallel that the GPS imposed in this case was unconstitutional.
Across the country, advocates and organizers are increasingly recognizing that, as pretrial detention and jail populations fall in many places thanks to bail reform, judges are imposing burdensome conditions of pretrial release that are not truly alternatives to incarceration, but alternative forms of incarceration.