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Detaining for Danger Under the Federal and Massachusetts Bail Statutes: Controversial but Constitutional

NCJ Number
New England Journal on Criminal and Civil Confinement Volume: 22 Issue: 2 Dated: (Spring 1996) Pages: 465-515
K A Rooney
Date Published
51 pages
The Federal Bail Reform Act of 1984 and the Massachusetts bail statute both provide for the consideration of dangerousness when setting or denying bail; the U.S. Supreme Court has found this significant change in the use of bail constitutional.
Part II of this Note addresses the history of bail and the right to bail. This section includes a discussion of the constitutional questions that arise when bail is denied, as well as a review of the Federal Bail Reform Act of 1984. Massachusetts' first attempt to detain individuals prior to trial based on dangerousness is considered as well. Part III examines Massachusetts' most recent legislation, which allows consideration of dangerousness when setting or denying bail. This section presents the similarities and differences between Massachusetts' legislation and the Federal Bail Reform Act of 1984. Part IV examines constitutional challenges to the Massachusetts legislation and concludes that the 1994 amendments are constitutional under State standards. Massachusetts is only one State to follow the lead of Congress. Section 58A of the Massachusetts Bail Statute allows detention of dangerous individuals while still protecting their constitutional rights by providing the procedural protections the Supreme Judicial Court in "Aime" determined were necessary for such legislation to meet Federal constitutional standards. The legislature carefully followed the guidelines set out in "Aime," and section 58A should withstand the State constitutional challenges currently before the Supreme Judicial Court. 416 footnotes


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