Bail Trends Under Scrutiny As New Panel Eyes Reform

John Adams Courthouse. (Joe Difazio/WBUR)
John Adams Courthouse. (Joe Difazio/WBUR)

More than a year after the state's high court ruled judges setting bail must consider a defendant's ability to pay, state officials are embarking on an examination of the bail system in Massachusetts that will consider measures including potential impacts of eliminating cash bail.

A massive April 2018 criminal justice reform law made a series of changes around bail, in keeping with a high court decision in the 2017 case Brangan v. Commonwealth.

Brangan was held at the Hampden County jail for more than three and a half years because he was unable to post the $40,000 bail after a 2014 armed robbery arrest. The state's Supreme Judicial Court ruled that judges cannot set bail "higher than necessary to ensure the defendant's appearance" and "that a judge may not consider a defendant's alleged dangerousness in setting the amount of bail."

The new law establishes that bail should not be set higher than an amount that will reasonably assure a person's appearance in court, requires financial resources be taken into account in determining bail, allows judges to use community correction programs for pretrial release, and creates a pre-trial services unit to notify defendants of upcoming court dates.

It also created a 19-member commission of lawmakers, lawyers, judges and other officials, which has until June 30 to evaluate and report on the potential of using risk assessment factors regarding bail decisions, the impacts of eliminating cash bail and any recommendations for doing so, "the setting of conditions on defendants when they are released with or without bail," and "any disparate impact on defendants because of gender, race, gender identity or other protected class status."

Sen. Cindy Friedman of Arlington and Rep. Claire Cronin of Easton co-chair the commission.

On Thursday, at the panel's first meeting, members outlined what data and information they hope to delve into during their study.

In cases where people are held on bail, it would be "important to look at" the amount of their bail, said Shira Diner, who works at the Committee for Public Counsel Services and represents the Massachusetts Association of Criminal Defense Lawyers on the commission.

"I think it's important to know if people are being held on $5,000, are people being held on $50, and where that breakdown goes," she said.

Richard Savignano, a former District Court judge who's now first assistant district attorney in Plymouth County, suggested the commission obtain statistics from the different county houses of correction to see how the numbers of pretrial detainees have changed over time.

Atara Rich-Shea, operations director of the Massachusetts Bail Fund, said she wanted to know race and gender breakdowns of people currently held on bail, how long people held on bail stay in jail, and what the case outcomes are for people held versus those who aren't.

David Solet, the chief legal counsel at the Executive Office of Public Safety and Security, recommended the group also probe "what kinds of disruptions" happen when a defendant does not appear in court, giving the example of witnesses who are subpoenaed and have to miss work to attend a proceeding, only to be left waiting. He also suggested examining whether people who are held on bail have failed to appear in past cases.

"I think that'd give us some sense of whether we think the commonwealth is properly detaining people who have otherwise shown they won't go to court," Solet said.

Friedman and Cronin said documents the commission members discuss during the course of their meetings will be available to the public in Cronin's State House office, Room 136.



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