State panel rejects dropping cash bail

Desi Smith/Staff file photo/State Senate Minority Leader Bruce E. Tarr, R-Gloucester, said a panel reviewing bail policies concluded that cash bail continues to play an important role.

BOSTON — A panel reviewing how bail is set is recommending against major changes in how pre-trial release is determined for those facing criminal charges.

A report by the panel of state officials, lawmakers, attorneys and criminal justice advocates calls for more review of existing bail policies and more training for judges on recent reforms. The report says the panel "could not recommend the elimination of cash bail, or substantially altering conditions of release at this time."

Senate Minority Leader Bruce Tarr, R-Gloucester, a member of the commission, said it concluded that cash bail continues to play an important role.

"We need an enforceable mechanism to ensure that people appear in court at the necessary times and that there's a consequence for not doing that," Tarr said. "I have not yet seen another tool that could replace bail for that purpose."

Civil liberties and social justice groups are pushing for Massachusetts to stop using cash bail, pointing to data that shows bail is used disproportionately among different races and genders and that most people show up for court anyway.

Rahsaan Hall, director of the Racial Justice Program at the American Civil Liberties Union of Massachusetts, which had a representative on the panel, said the use of cash bail also has a disparate impact on people without financial means.

"That's particularly concerning, given the disruptive impact it has on peoples' lives," he said. "They can lose their job, their home and even custody of their children."

Hall said the report makes clear there needs to be more scrutiny of the bail system.

SJC ruling

In 2017, the state Supreme Judicial Court ruled that bail for indigent defendants must be affordable and judges must consider a defendant’s financial resources when setting bail.

In the ruling, the justices unanimously decided that high bail should not be used to keep defendants off the street before a trial — only to help ensure they will show up for trial.

The decision was in response to the case of Jahmal Brangan, who was held in Hampden County jail for years because he was unable to post bail on armed robbery charges.

The high court also ruled that, in such cases, a judge must provide "written or orally recorded findings of fact and a statement of reasons for the bail decision."

Lawmakers responded to the SJC ruling by adding provisions to a 2018 overhaul of criminal justice laws that require bail not be set higher than an amount that will "reasonably assure" a person's appearance in court, and that require a person's financial resources be taken into account in determining bail.

Lawmakers also balked at scrapping the use of cash bail.

"It was certainly in the Legislature’s prerogative to eliminate cash bail in the Criminal Justice Reform Act, but the members chose not to take that step," the recent report noted.

The bail review panel said court data shows that most defendants who are charged and released on bail show up for court hearings.

In fiscal 2018, the failure to appear rate was 12.6% for all individuals, and 14.3% for individuals released on bail, according to the Trial Court.

The review found disparities in the amount of bail set depending upon a defendant's race, ethnicity and gender.

"Generally bail amounts were higher for non-white defendants, with a higher proportion of non-white defendants," it noted.

No bail

Several states, including California and New Jersey, have implemented bail reforms that either end or restrict the use of cash bail. Studies show that failure to appear rates have not significantly changed.

California's law, which leaves it to courts to decide whether someone should be held before trial or not, has been put on hold pending a referendum backed by the bail bond industry, which opposes the changes.

Some Massachusetts prosecutors have tested the waters of allowing defendants to be released without bail for minor offenses, but the efforts have faced opposition.

Last year, Middlesex County District Attorney Marian Ryan said her office would not seek cash bail for offenses such as drug possession and property crimes.

In Suffolk County, District Attorney Rachael Rollins has pursued even more aggressive reforms, implementing a policy that calls for all defendants under her jurisdiction to be released without bail unless there is "clear evidence" of a flight risk or the need for a dangerousness hearing.

Rollins' move was criticized by other DAs and the conservative National Police Association, an Indiana-based group, which has filed a bar complaint against her.

Other states that have gone cashless have also created risk-assessment systems to determine a person’s likelihood of reoffending and showing up for court.

But the bail review commission recommended against creating a similar program here, suggesting it wasn't needed.

"A systemic implementation of a risk assessment tool in Massachusetts is not likely to lead to a drastic improvement in bail decisions at this time," the report's authors wrote. "Judges appear to be making good determinations based on comparatively high appearance and low pretrial detention rates."

Christian M. Wade covers the Massachusetts Statehouse for North of Boston Media Group’s newspapers and websites. Email him at cwade@cnhi.com.

 

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