Despite priding itself as one of the most progressive states in the U.S. when it comes to criminal justice reform, Massachusetts continues to utilize the practice of cash bail. On the state’s webpage on the bail process, state officials characterize bail as not a “form of punishment” but a “way of helping ensure that a defendant will appear in court at a later date.” Bail essentially is a sum of money set by, in Massachusetts, a bail magistrate, who determines a price for the likelihood of a defendant not appearing in court as well as the danger the individual may pose to the public. There are a few obvious problems with the practice of cash bail, including the fact that it allows wealthy individuals to pay without worry while forcing indigent defendants and their families to take out bail bonds, save up or be forced to remain incarcerated while awaiting trial.
The pretrial jail population has been growing steadily across the United States. According to the Prison Policy Initiative, about 75 percent of people in prisons in 2020 were being held pretrial. The effects of pretrial detention beyond the psychological trauma of being jailed include an increased likelihood of being sentenced, as well as more hurried decisions and plea deals. Additionally, defendants who are jailed prior to their trial have more hoops to jump through when accessing their representation and getting the support they need from family, friends, and mental health professionals.
Cash bail very clearly impacts low-income people and people of color unequally when compared to their white, wealthy counterparts. As the criminal justice system unduly burdens people of color, Black defendants in large urban areas are 25 percent more likely to be held pretrial than white defendants. Black and Latino men also are assessed higher bail amounts than white men who committed similar crimes by an average of 39 percent and 19 percent respectively. There is an obvious unjust and racist approach that is inherent in the practice of cash bail, much like the rest of the American criminal justice system. But, those in favor of cash bail claim that it keeps the public safe despite its many flaws by keeping criminals off the streets before they are given their sentences. This completely contradicts the right wing’s favorite line when a beloved athlete, senator, Supreme Court Justice or president is accused of sexual assault: “innocent until proven guilty.” In the United States, hundreds of thousands of people are unjustly and unnecessarily held due to not being able to pay bail or held without bail, punished without being convicted of any crime. The Fifth Amendment states that “no person shall … be deprived of life, liberty, or property, without due process of law.” And yet, the practice of cash bail is doing just this, but only to those without the money needed to have said fundamental right.
It is also crucial to note that holding people without bail, or setting cash bail, has not been shown to make communities any safer than they would be otherwise. Washington D.C. and New York City are a few examples of the successes of bail reform. D.C. eliminated cash bail in 1992 and in 2017 94 percent of defendants were released pretrial without a cash bail set; 88 percent of them showed up for their court dates, The Marshall Project writes. New York City has slowly been reducing the percentages of cases in which bail has been set throughout the past 30 years from 48 percent to 23 percent, according to a 2019 article from The Marshall Report. Because of this reduction, the jailed population in the city has dropped significantly. Despite the releases, the return to court rate for the city of New York is 11 percent higher than the national average—86 percent compared to the average of 75 percent. New York’s drops in bail are likely due to the city’s Supervised Release Program which was implemented in 2015. A study on bail reform from the Harvard Kennedy School reports that this program actually slightly decreased the likelihood of rearrest while on pretrial release. Additionally, the report noted that there was a three percent increase in new violent felony arrests among those released through the program that was deemed “not statistically significant” and “could have resulted from natural variation over time”. The report also notes that studies from Cook County (IL), Jefferson County (CO), Yakima County (WA) and Philadelphia all found no statistically significant increases in rearrests post-release without bail.
In the Kennedy School Report, it is also noted that “decision-makers who lead the adoption of bail reforms often do not center the goal of reducing racial disparities, instead choosing to focus on reducing the local jail population and/or saving money,” as opposed to understanding the depth of the problem and its roots in racism and unequal treatment in regard to race throughout the justice system. Massachusetts has already implemented some criminal justice reforms, but continues to struggle with the obvious racial inequities that remain. A 2021 report by the Juvenile Justice Policy and Data Board showed that after the implementation of the Criminal Justice Reform Act in Massachusetts in 2018, white youth benefited more from the reforms than Black and Latinx youth. There is also a serious lack of data throughout Massachusetts as a whole in regard to racial disparities in arrests, policing, set bail amounts, individuals held without bail, etc.
If the state of Massachusetts is to continue claiming its progressive politics, the state must look to actually helping non-white people through criminal justice reform, including abolishing the unnecessary practice of setting a cash bail.