Re: Opposition to Resolve S. 1851
Dear Chairpersons Gregoire, Pacheco, and Committee Members,
The Massachusetts Bail Fund pays up to $500 bail so that low-income people can stay free while they work towards resolving their case, allowing individuals, families, and communities to stay productive, together, and stable. Pre-trial freedom leads to better case and life outcomes. The Massachusetts Bail Fund is committed to the harm reduction of freeing individuals serving pre-trial sentences, and to abolishing pre-trial detention and supervision in the long-term.
Bail Fund volunteers post bail throughout the Commonwealth, at every jail and courthouse. Since 2013 we have posted 1999 bails, at a cost of $976,027.00 in bail and $73,836.00 in bail commissioner fees (the non-refundable fee paid for each bail posted at a jail). Our forfeiture rate is 3%, and, more importantly, 47% of all our closed cases are dismissed entirely.
For the past four years, we have posted bail at MCI-Framingham, where women prosecuted in Middlesex County are incarcerated pre-trial. In total, we have posted bail for 90 women jailed pre-trial at MCI-Framingham, at a cost of $35,800 in bail and $3,301 in bail commissioner fees. Nineteen of those women were prosecuted out of Middlesex County.
The Massachusetts Bail Fund opposes S.1851
We should focus Massachusetts resources on decarceration not incarceration
Voters, Legislators, and District Attorneys around the country and in Massachusetts have recognized the gross inequities in our cash bail system. Newly elected District Attorneys in Suffolk and Berkshire Counties have instituted policies pledging to address wealth-based detention in their jurisdictions, acknowledging the harms pre-trial incarceration has on individuals, their families, and their cases.
On any given day about 40% of the women in MCI Framingham are there pre-trial, many of whom are there on bail they cannot afford. All of these women can and should be home, in their communities, addressing their cases while advancing their lives. Pre-trial release affects both case outcomes and long-term economic prosperity. When people are released pretrial, they not only are more likely to receive a favorable case disposition, they are also “11.3 percentage points more likely to have any income two years after their bail hearing and 9.4 percentage points more likely to be formally employed 3 to 4 years after conviction.”
Pretrial detention in Massachusetts, and specifically in Middlesex County, is already limited, and likely decreasing. A recent statewide study by the Trial Court, showed that 79% of people prosecuted are released pre-trial. In Middlesex County, the number is even lower, where 5% of people with open cases prosecuted by DA Ryan’s office are incarcerated pre-trial.
We have posted bail for women at MCI-Framingham who are mothers, who are caregivers, who are daughters and sisters; women struggling with housing, mental health diagnoses, and addiction. We are acutely aware of the challenges the people whose bail we post face. We also know that we cannot prosecute or incarcerate people out of poverty and into health and stability. Massachusetts resources should be spent on the root causes of prosecution and incarceration; poverty, housing, addiction, and health care, and not on new jails or prisons.
We strongly urge the Joint Committee on State Administration and Regulatory Oversight to not allow this resolve to move forward. Rather, we recommend that the Commonwealth continue its important work of decarcerating and strengthening our communities.
The Massachusetts House of Representatives released their version of the CJ Reform Omnibus Bill with Amendments last week. We wanted to update you on the work we've been doing and and will continue to do to oppose the disastrous bail "reform" proposed by the Senate and to work to ensure the House version doesn't include any of the same "reforms".
There are specific asks below, scroll down iff you want to get there quickly.
Summary of where we are:
The Senate passed H 2185, which included substantial changes to the bail laws in Massachusetts which we oppose. There is nothing in this bill which prevents the current practice of holding people on bails they cannot afford, and a lot in this bill that expands the reach of probation and pretrial conditions. You can find our specific positions here.
We did not want the House to make the same decisions made by the Senate. To that end, the Mass Bail Fund and 21 other advocacy and legal services organizations signed on to a joint letter urging Representatives to make no changes to existing bail law at this time. On behalf of the group, the Massachusetts Bail Fund the letter to every member of the House of Representative. You can read the letter here.
The House made no substantial changes to the bail laws!! The language introduced in the House version of the bill is a restatement of our current bail laws including the newer language from the Brangan Decision. However, a few amendments were filed that would make changes; three of which we oppose and one we support.
Here are our positions on the amendments for you to use when calling your Representatives:
Find your legislators here: https://malegislature.gov/Search/FindMyLegislator
Amendment 187 – Mandates the creation and usage of Risk Assessment Instruments (RAIs) when setting bail
We continue to oppose the creation and usage of RAIs. Our data shows that all people, including those with serious structural challenges like homelessness, come to court. We believe that profiling, no matter how scientific, still forces people to be evaluated based on their affiliation with a certain group rather than as individuals. These tools are not service evaluation tools, their function is to advise probation and judges on risk of flight based on an algorithm. The RAI mandated in this amendment profiles people using factors such as their history before the court, history of mental illness, financial resources, and length of residence in the community to dictate whether someone would be considered a “flight risk”. These factors are proxies for race and class, and would further codify racism and classism into our criminal legal system. Last week a group of researchers, professors, and staff from MIT & Harvard echoed our concerns in an open letter to the Massachusetts Legislature criticizing the creation of these instruments. You can read the full letter here:
Amendment 181 and Amendment 150 - Calls for a "Standing Bail Commission" to review our bail policies and practices and report data related to bail.
We oppose the creation of any commission which fails to include the people directly affected by its work. The overwhelming majority of the people on these two commissions are legislators or law enforcement. Formerly or currently court involved people are not invited to the table. When the people most affected are ignored, change cannot happen. We have been working to understand the scope of pre-trial imprisonment and supervision in Massachusetts for six years. Reliable, accessible, and accurate data on bail and pre-trial imprisonment and supervision does not exist in our state. This amendment would not make the criminal legal system in Massachusetts more transparent but it would further exclude those most affected by the conversation from the conversation.
Amendment 43 – Extends the period of time a person can be imprisoned without bail after a bail revocation for both juveniles and adults
We oppose lengthening the amount of time anyone can be imprisoned without recourse. Currently adults can be imprisoned for 60 days and juveniles for 30 days. This amendment lengthens the time for adults to 90 days and 60 days for juveniles. This amendment takes an already unjust system and makes it worse. It has no place in a criminal justice reform bill.
Amendment 67 - Eliminates cash bail for juveniles, and imposes significant restrictions on imprisoning juveniles pre-trial.
We support the elimination of cash bail both for juveniles and for adults and we support the creation of significant restrictions on holding anyone pre-trial. We echo the position of our friends at Citizens for Juvenile Justice: “Massachusetts is one of very few states which still imposes cash bail on children. Almost 30% of children in detention are there for failure to pay bail…Incarcerating children should not be an acceptable alternative to placement when they simply lack a home or safe place to live.”
The Massachusetts Senate is currently discussing Senate Bill 2185, with a likely vote on the bill Thursday, October 26, 2017. In this bill significant and disastrous changes are proposed to Massachusetts Bail Statute.
You might think that the Massachusetts Bail Fund would be eager to see the legislature pass reforms to the bail statute proposed in the Senate’s omnibus criminal justice bill. Unfortunately, we do not believe that this legislation will lead to the relief that our poor and working-class neighbors throughout Massachusetts so desperately need. Instead, the changes will create a more onerous and expensive system than currently exists.
Three Serious Problems with Proposed Bail Reform
Our three main areas of concern are as follows:
The Proposed Reforms Expand Rather Than Limit the Scope of Bail in Massachusetts
We are gravely concerned about the expansion of the purpose of bail proposed in this legislation. Jurisdictions across the country are moving towards limiting the scope and purpose of bail. Yet this bill expands the definition of bail to include not just assurance of appearance but also assurance of safety. This expansion ensures that more people would be swept up into the pre-trial system in Massachusetts, exacerbating rather than relieving the problem.
Currently a separate process exists placing the burden of proof on the prosecution to establish if a person poses a public safety risk. We believe these processes must remain separate, so that a persons history and circumstances ar not confused with dangerousness.
Pre-Trial Supervision Means More Entanglement with the Criminal Legal System
We also caution against increasing investment in expanding the Probation Department to monitor people who have not been convicted of crimes. We have posted bail for hundreds of people who we never meet, and yet who come to court as required. We therefor take issue with the notion that these new conditions are connected to risk of flight. Instead, the ability of the new Pre-Trial services agency to monitor and mandate the behavior of Massachusetts citizens who are entitled to a presumption of innocence is tantamount to a pre-trial sentence.
We know that many defendants need drug treatment and mental health services. We do not believe that mandating such services as a condition of release is an appropriate role for the Probation Department. Homeless, poor, and working-class people continue to face barriers to meeting conditions set in lieu of cash that their wealthier neighbors do not face. The criminal legal system should not serve a gateway to services. Money should be invested in communities to support opportunities for compassionate substance abuse and mental health services, and not in the Probation Department.
Risk Assessment Tools Harm Poor People & People of Color
The Massachusetts Bail Fund is opposed to investment in and use of a risk assessment instruments. The factors which these tools use to determine risk, such as previous involvement in the criminal legal system, history of default (which includes failure to pay fines and fees), stability of housing, or employment, disadvantage people of color and poor people. We regularly post bail for clients who homeless or unemployed, who have significant criminal histories and significant histories of default. Everyone, no matter their background, finds a way to come to court, as shown by our forfeiture rate of only 1.3%. Creation and use of a risk assessment instrument would be a flawed solution to a problem which doesn’t exist.
Defendants in Criminal Cases Come to Court
We do not have a failure to appear problem in Massachusetts. Pre-trial incarceration is a solution to a problem which does not exist.
The Bail Fund has posted bail for 772 people and spent $372,633 on postings. We post for people charged with all types of offense, including superior court cases. Our average bail posted is $450, but we have posted bail as low as $25. Regardless of charge severity, cases take months or years to resolve – months or years that our clients would have otherwise spent in jail. 290 cases have resolved so far, and of those cases 143, or about 49%, were dismissed outright. Since we started posting bail, we’ve only had 10 forfeitures – a rate of 1.3%. We rarely meet the people whose bail we post, and we are not a service delivery agency.
Beyond the reality that failure to appear is not a problem in Massachusetts, we do not believe that people should be put in jail for not coming to their court dates.
Because pre-trial incarceration has such disastrous effects on individuals, families, and communities throughout the Commonwealth, we must be committed to incarcerating fewer people prior to conviction and imposing fewer conditions on people who are presumed innocent.
How You Can Help
We need all of our supporters and networks to call your state representative and state senator and express opposition to risk assessment instruments, expanding pre-trial supervision and conditions through the probation department, and holding more people without bail due to dangerousness.
Here' a script you can use:
"Hello, my name is _________________ and I'm a constituent. Thank you so much for taking on the necessary work of criminal justice reform. Bail reform is a priority to me. I'm concerned that proposed legislation expands the reach of bail and will lead to more people being incarcerated before conviction, not fewer. I oppose the implementation of a risk assessment instrument and I don't want to see increased spending on pretrial supervision through the Probation Department. I hope that any bail reform statute will not allow bail determinations based on dangerousness without a fair evidentiary hearing. Thank you very much."
On September 15, the Massachusetts Bail Fund had to suspend our work due to lack of funds, after spending $45,370 to free a record 89 people held on bails that they could not afford to pay in August and September.
Every month, we are now posting between 30 and 40 bails. We’re only able to recover 8-10 bails each month because it takes months and sometimes years for cases to resolve. We almost never have to forfeit the bails we post, because people come back to court. Still, we spend way more each month than we’re able to recoup, and the demand far exceeds the funds we have.
In response to our shutdown, people from across the country have stood together in support of our bail fund so critical harm reduction work can continue. Our friend and abolitionist guide Mariame Kaba ( @prisonculture, www.mariamekaba.com) issued a challenge on Twitter to raise $25,000 for the Mass Bail Fund by September 30. Because of your generosity and commitment to justice, we were able to raise that amount in less than 24 hours.
So far, we’ve raised $41,196 and counting. There’s no power like the power of the people!
We are so grateful for this outpouring of support. Thanks to you, we will be able to open in October and free more people. However, we still need to raise a total of $100,000 in order to be able to post 30-40 bails per month for the rest of 2017. We encourage you to give to the Bail Fund if you haven’t already, and ask friends to give if they can.
We’re especially alarmed at the high number of bail requests we are receiving, because Massachusetts’s highest court recently ruled in Brangan v. Commonwealth that judges must consider a person’s ability to pay before setting bail. Since that ruling, however, we’ve received 53 requests for assistance from the Bail Fund. This court decision has not brought the relief promised to poor and working class people.
In response, we are in the process of establishing a court watch to monitor and report how the Brangan bail decision is (or is not) being implemented so we can challenge defense attorneys, prosecutors, and judges to honor the spirit of the ruling and stop setting bails people can’t afford to pay.
We are committed to harm reduction in the short-term and to abolishing pre-trial detention in the long-term. Thank you for allowing us to do this work and to serve our community in this way.
Last week, the Massachusetts Bail Fund posted our lowest bail yet; $25. On Friday August 25, the Supreme Judicial Court of Massachusetts (SJC) decided the case of Brangan v. Commonwealth. The justices order judges to consider a person’s ability to pay when determining bail and they order judges to explain, either in writing or orally, their reasons for setting a cash bail that is more than the person can afford.
The Massachusetts Bail Fund (MBF) appreciates the effort of the attorneys who worked to get the SJC to acknowledge how the unjust system of cash bail plagues our community. This case provides defense attorneys with significant advocacy tools to push judges and district attorneys in the direction of release rather than cash bail. We sincerely hope that this case will result in more people coming home rather than staying in jail.
Yet we are profoundly disappointed that the SJC did not do more to alleviate the inequitable and inhumane treatment of poor and working-class people accused of crime. Ultimately, the SJC has affirmed the idea that it is reasonable for a judge to set a cash bail they know a defendant can’t afford -- as long as there are other factors which the judge believes indicate that the defendant may not appear. When people are in pre-trial detention they risk losing their jobs, homes, custody of their children, healthcare, and more. We consider this punishment.
What the MBF knows is that we can go beyond the Brangan decision; we can abolish cash bail. The MBF has posted over 600 bails, and 98% of our clients have come to their court dates. More than 50% of our clients have their cases dismissed, which means that if we didn’t post their bail they would have spent months or years in jails for crimes they could not be convicted of. We also know that Black and Brown people are more likely to be held on bail than white people, making cash bail part of the structure of institutionalized racism in the Commonwealth and across the country.
If people need help coming to court, there are community solutions – like ride sharing, text updates, flexible court time, and childcare -- which will allow people to do what they want to do: address their legal issues and move on with their lives. There are also additional options to avoid incarceration like pre-arrest and pre-trial diversion. Prosecutors can also recommend that people are released on recognizance and move to dismiss minor offenses altogether.
The unjust system of cash bail cannot be undone by a single SJC decision. Communities of color are over-policed, district attorneys knowingly ask for bails those people cannot afford, and judges confirm those bails under a pretense of “risk of flight.” Holding someone in jail for the duration of their case does ensure they come to court – but it also coerces them to plead guilty to charges they would otherwise fight. It ensures that people lose their homes, their families, and their well-being. We have a shared responsibility to stand up and demand that our judges, elected district attorneys, and elected sheriffs end the unjust and inequitable practice of cash bail.
Until pre-trial detention is abolished, The Massachusetts Bail Fund will continue posting bail for people who cannot afford it so that they can be free to fight their case. As an agency, we are committed to monitoring the implementation of the Brangan decision and holding Judges and District attorneys accountable. The Massachusetts Bail Fund has started court a watch program to monitor the effects of this decision. We watched a session of the Boston Municipal Court where the judge did not know the name of this decision, did not issue written or oral findings, considered dangerousness as argued by the district attorney, and declined to lower the bail in the cases we witnessed where a reduction in bail was requested.
We also reopened referrals on September 1st, and in one day we received 12 referrals for people held on bails of $500 or less. Since then, we have received over 36 applications for help and posted our lowest bail yet, at $25.00.
We bought someone’s freedom for less than a tank of gas.
The Massachusetts Bail Fund is committed to holding judges and district attorneys accountable. We are committed to freeing people from cages. We are committed to posting every bail we can. Yet we cannot do this without money. Please give as generously as you can. Every dollar you give to the bail fund is used to post bail for someone who would otherwise remain in a cage