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 expansion of the purpose of bail to include assurance of safety as well as assurance of appearance
- the expansion of the the probation department to supervise pre-trial defendants
- creation and implementation of a Risk Assessment Instrument
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."