Cash Bail Must Be Affordable, Mass. High Court Rules

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Massachusetts' Supreme Judicial Court has decided that bail costs for poor defendants must be affordable. In their recent ruling, the judges unanimously decided high bail should not be used to keep defendants off the street before a trial — but should be used to help assure defendants will show up for trial. To explain, attorney Steven Sack, of Suffolk Lawyers for Justice, joined Morning Edition.

Interview Highlights

On the significance of the ruling

Steven Sack: People who previously couldn't afford bail will now be released, maybe with conditions to ensure their appearance [in court]. That's significant because a lot of people who cannot afford bail right now are held before trial. It interrupts their lives, it interrupts their jobs. And [defendants] enjoy the presumption of innocence, and they are held before they are adjudicated — guilty. And the Supreme [Judicial] Court has said that's really, really unfair, and it doesn't comport with due process in the United States Constitution or the Constitution of Massachusetts.

On decisions facing judges and balance they must strike

[Judges] have to balance the idea that a person is going to show up for court, but also protect that person's rights because the whole system is based on a person being presumed innocent. If they are locked up ... it is much more difficult, certainly, for them to help their lawyer prepare their cases. ... Judges have a variety of tools that they can use to ensure somebody's appearance without setting a cash bail that a poor person cannot make.

On rationale high bails keep dangerous people locked up

The prosecutor still has the option of having a judge declare somebody dangerous. That would be in extraordinary circumstances, but a defendant in those cases would be entitled to a full panoply of rights, including a hearing where they get to face witnesses and call witnesses on their own behalf. That protect's the defendants' due process rights.

There are people who are held in jail on very low bails — $200, $250 — because they just don't have the money. Judges have other options open to them to ensure somebody's appearance [in court], by ordering the person to report to probation, going as far as installing the GPS monitor on them. Also, it is much cheaper for the government to allow a person free with conditions than to incarcerate them before trial.

On how the ruling has already made an impact in Roxbury court

[In court in Roxbury yesterday] the prosecutor requested a $500, but the judge, looking at this ruling, allowed the person to go free.

This article was originally published on August 29, 2017.

This segment aired on August 29, 2017.


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Bob Oakes was a senior correspondent in the WBUR newsroom, a role he took on in 2021 after nearly three decades hosting WBUR's Morning Edition.



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