How One Massachusetts DA is Changing the Bail System

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Photo by Daniel Oines via flickr

Isaac, a slight-framed 19-year-old from Lowell, Mass., stood before a weathered wooden railing in his city’s district court one day this month, waiting to learn if he would keep his freedom.

He had been arrested the day before and charged with a felony count of selling crack cocaine. It was his first arraignment, and he was strapped for cash.

He had spent nearly his last $40 getting bailed out of the police station, and if the judge set hundreds of dollars in bail he would not have been able to afford it, he said in an interview — meaning he would be locked up until either his case was resolved or his friends and family scraped together the money to get him released.

“If I wasn’t able to pay it, mostly likely I’d lose my job,” said Isaac, who asked that only his first name be used out of concern for his job and his privacy.

It did not come to that. Middlesex County prosecutors did not request any bail, and he was released with a commitment to attend his next court date.

Isaac’s release was not an isolated case.

For the last 18 months, Massachusetts’ most populous county has sought to abolish the use of cash bail for low-level defendants, who otherwise can languish in detention before trial if they cannot pay their way out of lockup.

Middlesex County District Attorney Marian Ryan announced in January of last year that her office would not seek cash bail for offenses that would not typically lead to a jail sentence, including some drug and property crimes.

Marian Ryan

Middlesex County District Attorney Marian Ryan speaking in April about a lawsuit she and Suffolk County DA Rachael Rollins filed against Immigration and Customs Enforcement over the legality of its arrests at local courthouses. Photo courtesy MassLive

It was a stand that placed Ryan in the company of a nationwide chorus of criminal justice reform advocates, months before the underdog elections of Suffolk DA Rachael Rollins and Berkshire DA Andrea Harrington made clear that progressive prosecutors were having a moment in Massachusetts.

Now, with a year-and-a-half of bail reform under her belt, Ryan says the policy is working – and has not led to a spike in missed court dates

“It was really looking at where the impact was falling on bail and how bail could sometimes be the beginning of a bad spiral,” Ryan said in an interview. “You have cash bail set you can’t make, you get held, you lose your job. Your housing was probably a bit tenuous anyway, then you lose your housing.”

In criminal justice reform, talk can be cheap. But Lynda Dantas, the attorney in charge of Lowell District Court’s public defender agency, said in an interview that Ryan appears to be following through.

“I would say that generally that is absolutely the truth,” Dantas said. “Where they would usually ask for a minimal bail for $200 or $500, the DA’s office is not asking for bail with those individuals.”

Dantas and her colleagues have seen more of their clients accused of drug possession, motor vehicle offenses and other misdemeanors go free after their arraignments. That is no small thing, Dantas said. While many cases end in dismissals or not guilty verdicts, defendants who cannot afford bail can spend months in jail awaiting trial.

‘Not Guilty’ Doesn’t Mean ‘Unpunished’

“Not guilty” does not mean unpunished when pretrial detention can cost people their jobs, their housing or even their children, according to Dantas. Because of those costs, some innocent defendants take quick plea deals that leave them with criminal records rather than fight their charges, she said.

“I think a large percentage of these individuals would rather plead guilty to something they did not do than spend another day in jail,” she said.

When Ryan announced her office’s changing approach to bail, it was paired with a promise of transparency. The DA’s office has launched a web page displaying some of the numbers behind its prosecutions, in what it describes as an effort to give Middlesex residents a clear look at how their criminal justice system functions.

And it has shared raw data with Northeastern University, which will produce reports designed to illuminate any disparate enforcement among the county’s racial and ethnic groups, genders and municipalities.

Among the numbers publicly released, some stand out. The DA’s Office did not request bail in 72.86 percent of district court cases that continued after arraignment, and 88.82 percent of such juvenile cases. And at any given time, district and superior courts were handling about 9,000 active cases, with 5% of defendants being detained pretrial.

But while Ryan’s office appears committed to collecting and sharing data, determining the exact effects of the new bail policy has proved difficult.

The DA’s Office only began collecting data on bail requests and pretrial detentions in 2018, officials told MassLive – meaning that comparing those numbers to the old, stricter bail policy is not possible. And there is no central data clearinghouse in Massachusetts that allows the public to compare cash bail statistics, default rates or detention rates – either over time or between counties.

In 2017, the Massachusetts Trial Court conducted a study on statewide bail practices following the Supreme Judicial Court’s landmark decision in Brangan v. Commonwealth – a ruling that requires judges to account for a defendant’s ability to pay when setting bail.

That study found that 80.7 percent of defendants in district court, where low-level offenses are typically prosecuted, were released without bail, 16.1 percent were set bail and 3.2 percent were ordered detained.

But those numbers do not help understand where Middlesex ranks in its approach to bail.

While the statistics provided by Ryan’s office report on bail requests made by prosecutors, the trial court’s study looked at bail outcomes – including cases where a prosecutor may have requested bail, but a judge ordered the defendant released. That makes comparing those numbers impractical.

MassLive did find some independent evidence that suggests the policy is working as intended.

16 Percent Decrease in Pretrial Detainees

According to information from the Middlesex Sheriff’s Office, the average number of pretrial detainees in the county jail decreased about 16 percent from 2017 to 2018. The data shows that the number of people held decreased month-to-month in each month except December, where the population held steady.

“There’s a lot less people being held pre-trial that should never have been held in the past,” Dantas said. “I think this is making a dent.”

The DA’s Office said that the elimination of bail requests in many low-level crimes has not led to a spike in people skipping court dates. The county’s district court default rate has remained roughly the same since the policy was implemented, Ryan’s office said.

When Ryan announced in January 2018 that her office would no longer seek bail for offenses that would not lead to a jail sentence, she said it was part of an “evolving practice” that followed meetings with law enforcement and community stakeholders.­

And it came amid a national movement to reduce the use of cash bail that has created an alliance of sorts between activists, criminal justice researchers and progressive prosecutors.

A growing body of scholarship has shown that cash bail creates hardships for poor defendants who often face a difficult and inescapable choice: sit in jail awaiting a day in court, risking jobs and housing, or plead guilty, receiving a blemish on their record that can also lead to problems with employers and landlords.

 Research from Penn Law School’s Quattrone Center for the Fair Administration of Justice found that defendants who cannot make bail are convicted more frequently and receive worse plea terms than those who can pay.

Ryan said that her office does not have data on whether guilty pleas have decreased since her reforms were implemented.

“It stands to reason that is a factor in some cases,” Ryan said.

In 2017, New Jersey essentially eliminated money bail, replacing it with a focus on offenders that judges deem dangerous to the community. Despite funding challenges, state officials say the system has been a success. The numbers of people detained before trial plummeted, while recidivism and default rates did not significantly rise, according to a report released in April.

In California, reformers have faced stiffer resistance. Gov. Jerry Brown signed a bill eliminating cash bail last year, but the measure has been put on hold pending a referendum backed by the bail bond industry.

And in 2017, the Massachusetts Supreme Judicial Court ruling in Brangan v. Commonwealth led to a shift in how judges assess bail. In the Brangan decision, the SJC ruled that judges must consider a defendant’s ability to pay when setting bail – and that cash bail can only be used to ensure that a defendant returns to court, not as a way of jailing defendants without a dangerousness hearing.

“A bail that is set without any regard to whether a defendant is a pauper or a plutocrat runs the risk of being excessive and unfair,” Justice Geraldine S. Hines wrote in the decision.

Suffolk County DA Rachael Rollins was elected last year on promises to overhaul criminal justice in Greater Boston. She quickly became one of the state’s most visible advocates of progressive prosecution, and in March released a policy memo that addresses cash bail – and goes much further.

Suffolk prosecutors now work from the presumption that all defendants will be released without bail, unless there is “clear evidence” of a flight risk or the need for a dangerousness hearing. Rollins’ memo lists 15 misdemeanors that her office will divert or decline to charge, except in exceptional circumstances – ranging from drug possession with intent to distribute and petty larceny to breaking into a vacant property and driving with a suspended license.

Those policies – and Rollins’ focus on the harms inflicted by the criminal justice system – have drawn aggressive pushback from law-and-order factions of the criminal justice community. The National Police Association – a conservative Indiana-based nonprofit that is not affiliated with individual police departments – filed a bar complaint against her.

And Cape & Islands DA Michael O’Keefe wrote an opinion column in the Boston Globe that did not name Rollins but blasted her approach, attributed the campaigns of “social justice” DA candidates to support from George Soros and said the criminal justice system has been wrongly blamed for racial disparities in incarceration.

“It’s harder to blame, for example, the disintegration of the family, a lack of respect for discipline and education, and the glorification in some communities of a culture that celebrates disrespectful language and misogyny under the guise of art,” wrote O’Keefe.

“I suspect that these factors are more influential regarding who is in jail or prison than an inert criminal justice system.”

Ryan’s more modest reforms have escaped such public controversy.

“I am very fortunate to have good, solid relationships with our chiefs of police, with our local officials. This wasn’t something that we did abruptly,” she said. “We’ve done this in a measured way. We’ve been fortunate. The results have been what we hoped.”

MassLive reached out to several Middlesex County police departments for this story, none of whom responded with criticisms of Ryan’s bail policy.

“We have not taken a position on this, nor have any Middlesex chiefs voiced concerns directly to me,” Mass Chiefs of Police President Mark Leahy wrote in an email.

Dantas, the public defender, said she has noticed an increase in the Middlesex DA’s use of dangerousness hearings to deny bail entirely, now that the use of cash bail has decreased.

While judges are currently only allowed to consider a defendant’s pending charges when assessing dangerousness, a coalition of law enforcement officials and political leaders are pushing for legislation that would make those detentions easier.

A bill filed by Gov. Charlie Baker would allow judges to consider criminal histories when deciding dangerousness and grant prosecutors the right to appeal bail decisions by district court judges.

Additional Reading: Houston Officials Narrowly OK New Bail System

Dan Glaun, a staff writer for MassLive, is a 2019 John Jay/Guggenheim Justice Reporting Fellow. This article was produced as part of his Fellowship reporting project. The complete version is available here.

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