SJC hears whether deportation order can justify $150,000 bail increase in Commonwealth v. Alvarez

The Supreme Judicial Court heard argument on whether a federal removal (deportation) order may be considered when a superior court increased bail for Corey Alvarez from $500 to $150,000 after an immigration hearing and removal order. Attorneys for Alvarez urged the court to rule that the statutory factors in section 57 are exclusive and that a deportation order—largely outside the defendant’s control—should not justify a higher bail amount.

The question matters because it determines when judges may increase bail based on circumstances outside a defendant’s control and how state and federal custody decisions interact. At issue is whether a judge may rely on a removal order or whether the superior court must confine its inquiry to the enumerated factors in section 57 and the related provision Congress/bench shorthanded as “section 58.”

Brian Kelly, attorney for Corey Alvarez, told the court that the superior court’s increase “was almost entirely based on that particular order, that deportation order.” Kelly argued for a construction that distinguishes volitional from nonvolitional conduct and said he would “only agree with [raising bail for changed circumstances] if it was volitional conduct.” He emphasized that Alvarez appeared at the immigration hearing unrepresented and that the removal order and its execution date (the record reflects a removal order entered on Sept. 16 and an execution date noted for Oct. 31) placed Alvarez in a Hobson’s choice: remain in custody or return to the community and risk removal.

Jackson Eaney, counsel for the Commonwealth, responded that the superior court made two independent findings—one that relied on the removal order and one that did not—and that the underlying determination that Alvarez was an extreme flight risk was supported by the record (including limited family and community ties, the strength of the case, DNA, and the severity of potential penalty). Eaney told the court that “the list in the statute is not exclusive” and that judges may consider any relevant factor, including third‑party actions that increase a risk of nonappearance. He also said federal authorities had represented to state prosecutors that, if Alvarez were in state custody, they would defer execution of the removal order (the transcript records a communication that the federal government indicated it would delay removal while the state had custody).

During questioning justices pressed both sides on lines that seem to matter for statutory interpretation: whether the listed factors in section 57 are exclusive, whether mental illness or drug dependency (examples discussed by the court) should be treated as nonvolitional, and whether deportation resembles those nonvolitional examples. One justice asked if counsel’s argument was that “the only things the judge could consider under section 57 are the factors that are listed in the statute,” to which Kelly replied that exclusivity was the core of his statutory argument. The court also explored whether individualized, fact‑based determinations are required and whether a limiting principle exists if final removal orders routinely justified higher bail.

Both sides cited authority. Kelly relied in part on a 2021 New Jersey state supreme court decision he described as “right on point” and argued the omission of deportation from the statutory list was a telling legislative choice; Eaney cited Massachusetts common‑law authority and precedent emphasizing the bail statute’s purpose to ensure a defendant’s appearance and argued statutory factors and common‑law considerations together permit consideration of removal orders.

The hearing record also includes factual clarifications: defense counsel said Alvarez had originally been released on $500 bail before the Commonwealth moved to increase it; the superior court later set bail at $150,000. The complaint and detainer events are recorded in the appendix and timeline counsel described: the alleged crime was reported Oct. 13, an immigration detainer appears in the record on Oct. 14, and the federal removal order was entered Sept. 16 with a later warrant/execution date in October. Counsel and the court discussed whether the state and federal governments can coordinate to keep an accused in the community while preserving the state’s interest in prosecution; the Commonwealth said the federal government had, in this case, been deferring removal while the state retained custody.

No decision was announced at the argument. The court’s eventual ruling will determine whether, under Massachusetts law, final orders of removal or related federal actions may be considered in bail decisions and the extent to which courts must distinguish volitional from nonvolitional causes for nonappearance.