FOX Undercover investigates Mass. bail system

Mike Beaudet
Producer Kevin Rothstein

By day, one is a carpenter. Another, a courier. There are two retired teachers, plus a high school guidance counselor, a firefighter and a ferry manager.

By night, these and others are bail commissioners, officials appointed by court administrators to decide whether someone arrested after court hours can safely be released on bail, and if so, how much bail should be.

The background of bail commissioners, obtained from the court by FOX Undercover, is part of renewed scrutiny being paid to the Massachusetts bail system. It's a system that experts say is unique as well as flawed.

Flaws in the bail system were highlighted by a little-known part of the story of Jared Remy, the son of famous Red Sox announcer Jerry Remy whose arrest for allegedly killing his girlfriend drew attention to the inability of Massachusetts authorities to protect battered women.

Remy, whose criminal record reveals years of domestic violence arrests, was arrested and charged with assaulting his girlfriend, Jennifer Martel, two days before her killing. Despite his long history of domestic violence arrests, and the fear Martel told police she was in, Remy was released hours after his arrest thanks to the decision of a bail commissioner who let him leave without posting any bail.

The only cost was the $40 commissioner's fee, the standard payment to compensate bail commissioners for traveling to a jail or police station after-hours, sometimes in the early morning hours, and bailing out a defendant.

That fee is only paid when a defendant walks. If bail is not met, no fee accrues. It's a scenario critics say poses a financial incentive to let people go.

“I certainly would never recommend that type of system,” said William Carbone, who oversaw the bail system in Connecticut before recently retiring .

Bails in Connecticut are set by court employees who are paid a salary whether or not the person arrested is released.

“Is there any financial incentive to release a defendant here in Connecticut,” FOX Undercover reporter Mike Beaudet asked him.

“None at all. Absolutely not,” replied Carbone, who now teaches at the University of New Haven.

The financial incentive in Massachusetts doesn't exist in Connecticut, and it apparently doesn't exist anywhere else in the country.

“I have never heard of a system where a bail commissioner would be paid based upon the number of people who get released. And there are national organizations… that actually have standards for accreditation,” Carbone said. “There is certainly nothing in the standards that would link release decisions to individual payment.”

But individual payments are at the heart of the Massachusetts after-hours bail system. During court hours, judges normally set bail for those arrested. But after-hours, people being held at the police station have the right to bail.

Two groups of people make those decisions. One is clerk magistrates and assistant magistrates. These clerks are already working in the courts, making judicial decisions like approving or rejecting search and arrest warrants.

The other group is bail commissioners, who are appointed by a court administrator, and from the list provided by the courts, some of their qualifications seem far removed from the task at hand. Among other careers: one is both a school bus driver and police matron. Another is a homemaker. Others are or were court clerks, but not magistrates who make judicial decisions.

Bail Commissioner Judith Chambers was one of those clerks before retiring. She was the bail commissioner who decided to release Jared Remy on personal recognizance -- no bail needed. He did show up for court the next day, but his girlfriend, Jennifer Martel, did not. Two days later Remy allegedly murdered Martel.

FOX Undercover asked Chambers last August about her decision.

“Can you tell us why you released him without bail?” Beaudet asked her.

“No I'm not going to answer any questions,” she said.

“Any regrets?” Beaudet asked.

“No,” Chambers replied.

At the time, Chambers had already made $19,060 in bail fees, $40 at a time. That was halfway through 2013, and she had made more than any other bail commissioner in the state.

“You've made a lot of money on those fees that the defendants pay. Did that have anything to do with this?” Beaudet asked her.

“Nothing to say,” she replied, and got in her car.

FOX Undercover made repeated requests to the Administrative Office of the Trial Court for information and an on-camera interview. We asked for information about the backgrounds of bail commissioners. And we asked how often people out on bail in Massachusetts show up for court, and how often they default. And we asked about whether Massachusetts should look to other states to reform its bail system.

But our request for an interview was denied, and the court instead issued a statement saying the purpose of bails was to insure the defendant showed up for court and that court administrators were discussing bail reforms.

One group that is talking, however, are clerk magistrates, the other group setting after-hour bails.

“I think this system is in need of some oversight,” said Daniel Hogan, clerk magistrate at Boston Municipal Court and the head of the statewide Association of Magistrates and Assistant Clerks.

Hogan says clerk magistrates like him are already making judicial decisions, unlike bail commissioners.

“Some of these people have no court experience, yet they're making very serious decisions?” Beaudet asked him.

“Yes I think that's true,” Hogan replied. “I think they that they do a good job for the most part but I think that the clerk magistrates  who are doing it every single day where there is some type of oversight, I think that’s why the clerks are in the best position to be performing this Constitutional function, which is the right of bail.”

But even clerk magistrates are paid only if the defendant walks free.

“Isn't there a financial incentive for you to let someone out of jail?” Beaudet asked.

“I don't happen to agree with that statement. I don't believe that any judicial officer, clerk magistrate, assistant clerk is making decisions based on a $40 fee," Hogan replied.

"Massachusetts is the only state in the country that does it that way. Does that seem strange to you?" Beaudet asked.

"It does not. I think Massachusetts leads the way with respect to its judicial process. I think that this process that we currently have can be improved," Hogan said. "We certainly understand that there's a problem here and we are doing our best to get out in front to try to address this very important issue."

Part of the clerk magistrates' proposal, which they have discussed with court administrators, would eliminate the job of the person overseeing bail commissioners and use some of that money to pay for more oversight of all people setting after-hour bails.

Cox Media Group