If you are arrested, you will be brought to the police station and booked. The booking process consists of getting your basic background (e.g., name, address, date of birth). You may also be searched, photographed, and fingerprinted. If you decide not to cooperate during the booking process, it is very unlikely that you will be released immediately. You do have a statutory right to one phone call. If you plan to be arrested, it is important that you arrange for someone to be available to accept your call from the station.
(Reprinted from the National Lawyers Guild.)
If you are arrested and booked early in the day while court is still in session, you should be brought into court for arraignment. If court is not in session, you can still be released on bail by a bail commissioner. Bail commissioners charge a fee of $40. The police will likely know the names and telephone numbers of the bail commissioner(s) on call. Most demonstrators with roots in the community are released by the bail commissioner without bail (“on personal recognizance”), but you should be prepared to come up with the money needed. There is no formula for releasing arrestees without bail, and it is unclear what might happen to out-of-towners. The bail money is returned to you (except for the $40 commissioner fee) after you have made all of your required court appearances and your case is resolved. When you are released, you will get a blue recognizance slip ordering you to appear at your arraignment, which is typically held the next weekday morning.
OVERVIEW OF THE ARRAIGNMENT PROCESS
1. What is an Arraignment?
Arraignment is the procedure during which the defendant is brought before a judge and is formally notified of the charges, a plea is entered, the issues of bail or outstanding warrants are addressed, and a determination is made about whether appointment of a free or low-cost lawyer is warranted. The case will be called for arraignment after previously scheduled cases have been called, which is usually between 10:30 a.m. and noon, depending on the court.
2. Access to Defendants
Generally only attorneys are allowed into the holding area where the arrestees (“defendants”) are held. Attorneys can take messages to (and from) defendants from their supporters and family members who may be at the courthouse.
3. Bail and Conditions of Release
Bail may become an issue if the charges are serious and/or the defendant has a prior record. It is wise to have funds available for bail and to discuss this with your attorney. If unsatisfied by the bail decision of the District or Municipal Court, defendants may get a “bail review” in Superior Court, usually the next day.
Defendants should know that if they are arrested for anything while out on bail, they can, and will most likely be, held for up to 60 days without bail. The only appeal from a bail revocation in this instance is to the Supreme Judicial Court, and such an appeal is likely to take over 60 days.
Conditions of release may also be an issue. Often the judge will impose a “stay-away order,” ordering the defendants to stay away from either named victims, or more often, the place of the arrest. A court, however, cannot place conditions on release under the general bail statute (Commonwealth v. Dodge (1999) G.L. 276, § 58). Unfortunately, many judges are either unaware of, or intentionally ignore, this rule. Be prepared to challenge any such restrictions as unconstitutional or unjust, for example, where defendants are ordered to stay away from an entire area of the city, or where they are likely to have legitimate business at the restricted place in question.
4. Plea of Not Guilty
Defendants often want to stand up in court and orally enter their plea of “not guilty,” but in most courts the judge or clerk will automatically enter a not guilty plea on the docket, sometimes without even announcing it.
5. Subsequent Court Appearances
In most courts, the next court appearance after the arraignment is a pre-trial hearing. The length of time between the arraignment and the pre-trial hearing varies, but is usually three to six weeks. However, any defendant who is being held without bail is entitled to return to court within 30 days. The Boston Municipal Court holds a pre-trial conference before the pre-trial hearing, and the defendant is asked to choose the dates of both at the arraignment. When there is more than one defendant in the same case, the court will usually allow the defendants to choose different pre-trial conference dates but will require the same pre-trial hearing date.
If you are indigent (as determined by the Probation Department) and there is at least a potential of receiving a jail sentence, the court will offer to appoint an attorney, usually for a $150 fee, which can usually be worked off in community service. You have a constitutional right to represent yourself, though in all court proceedings you will be held to the same procedural rules as an attorney. Frequently, the National Lawyers Guild is able to provide attorneys to arrested demonstrators for free or at a reduced rate.
The most common charges for demonstrators are trespass, disorderly person, disturbing the peace, and resisting arrest. Sometimes demonstrators may be charged under city ordinances, which only carry fines.
Before demonstrators can be arrested for trespass, a person in lawful control of the premises must give them notice that their presence is unlawful. A posted sign can serve as this warning. If there is an oral warning, demonstrators should be given the opportunity to leave. The maximum sentence is 30 days and a $100 fine.
2. Disorderly Person / Disturbing the Peace
Police charge demonstrators with these two crimes when they engage in acts that the police simply do not like. The actual elements of the offenses are difficult for the prosecution to prove, especially in a political context, although “disturbing the peace” is easier to prove than being a “disorderly person”. Each carries a maximum six month sentence and $200 fine.
3. Resisting Arrest
DEALS AND DISPOSITIONS:
Often in these cases, especially when the charges are relatively minor, the defendants will be offered a deal to dispose of the cases on the arraignment date. Some possible dispositions, in increasing order of severity, are:
1. Pretrial Probation
A defendant is placed on probation for a specified period of time. No admission or guilty plea is required. If the defendant does not get arrested and obeys the terms (if any) of the probation, the charges are dismissed at the end of the probationary period. If the defendant is rearrested or violates the terms of the pre-trial probation, the case can be restored to the trial list.
2. Dismissal Upon Paying Court Costs
The defendant pays court costs in exchange for a dismissal. Most judges will allow defendants to perform community service in lieu of court costs. In a few courts this can be done at any non-profit organization tax-exempt under §501(c)(3). A letter certifying that the work was performed is presented either directly to the court or to the Probation Department. Note that many courts require the defendant to perform the work at one of a pre-approved list of organizations.
3. Continuance Without a Finding
This is a procedure whereby the court finds that there are sufficient facts for a finding of guilty, but does not enter the actual finding of guilt. Instead, the case is “continued without a finding” for a specified period of time and then dismissed if the defendant is not re-arrested and does not violate the terms of the continuance during that period of time. It is not a conviction; a person who receives this disposition can answer “no” to the question, “Have you ever been convicted of a crime?” However, this is a finding that defendant committed the offense, and for many purposes, such as immigration, government jobs, and sentencing in federal court, it will be treated the same as a guilty plea or finding.
A disposition of “continued without a finding” differs from pre-trial probation and dismissal upon paying court costs because it requires the defendant to admit that the government has sufficient facts so that a jury may find him or her guilty at trial. Some judges will require you to admit to the specific acts for which you are charged, though the statute does not require this; it only requires that you admit that the government has sufficient facts, as stated above, so that a jury may find you guilty at trial. Since there is a finding of sufficient facts, violation of the terms of the continuance will result in the entry of a guilty finding and the defendant may then be sentenced up to the maximum provided by the statute. A maximum sentence may be avoided by the inclusion of an alternative sentence at the time of the admission, called a Duquette sentence. With this provision, defendants will know what they are facing if they violate the terms of the continuance (if any), or if they get arrested during the time of the continuance. This type of sentence is not common for arrested demonstrators, and you should consult with your lawyer about whether a Duquette alternative makes sense for you.
A continuance without a finding is a common disposition in these cases. However, it is also generally available to demonstration defendants at a later time in the process. So, unless there are good reasons for accepting it at the arraignment (such as the defendant does not wish to return to court, the charges are more serious than usual, or the defendant has a long record), there is no rush to take this disposition, even though prosecutors and judges will pressure you to do so. Also, as the protections of the Criminal Offenders Record Information (CORI) law are gradually being eroded, the difference between a continuance without a finding and a guilty plea are shrinking.
Dispositions that involve a finding of guilty should generally be avoided at the arraignment, although it is, of course, the defendant’s decision. Usually, the only disposition involving a guilty finding that might be pressed for at arraignment is guilty with a fine. If you are an immigrant, this disposition will likely affect your immigration status. See the section below on non-citizens.
You have a constitutional right to take your case to trial. You also have a constitutional right to testify on your own behalf. You should consult with your lawyer in deciding whether to exercise these rights.
Taking a case to trial will often take a long time, depending on the court that you are in. It is not unusual that defendants who take a “deal” can complete their pre-trial probation or continuance without a finding before a trial would be held. Many defendants who engage in civil disobedience want to use their testimony at a trial to highlight their political cause. Depending on the case, this may or may not be an effective tactic.
People 17 or under are treated differently than adults. If the police think you are under the age of 17, you usually will be separated from the adults upon arrest. Juveniles are often, but not always, released at the police station.
Generally juveniles are only released to a parent or legal guardian. If you are away from your parents or traveling to a demonstration, you may be able to use a permission slip (signed by a parent or guardian) stating that you are not a runaway, have parental permission to be at the demonstration, and lists the names, addresses, and phone numbers of one or two adults who can pick you up. Obviously, this will take some advance planning and is not a legally binding guarantee of your release. Make sure that a parent or guardian can be reached by telephone for contact by the police or a legal support person.
Minors who are charged with crimes are usually (with the exception of serious offenses) charged in juvenile court. Juvenile court differs from adult court in that, among other things, juveniles do not have the right to a jury trial. In many (but not all) cases, the sentences are not as severe as in adult court. The right to a lawyer is the same as for adults.
A conviction or continuance without a finding for protest activities can have serious consequences for non-citizens, including deportation or exclusion the next time one attempts to enter the US. It can also harm one’s chances of obtaining lawful permanent residence or citizenship. All activists need to recognize that the U.S. government is very hostile to non-citizens, who are particularly vulnerable and should be cautious. For more information, see the National Immigration Law Center.