I am in strong support of the bail reform provisions included in the Senate’s comprehensive criminal justice bill, S.2185 – An Act relative to criminal justice reform.
Under our current cash-based bail system, we incarcerate too many individuals before their trial – not because they are likely to flee or pose a danger to society, but because they are poor and unable to afford their cash bail. A person’s freedom should never be based on their ability to pay.
The Supreme Judicial Court’s (SJC) recent decision in the Brangan case, which states that a court may not impose excessive cash bail that the court knows a person is unable to pay without a formal written or oral finding, is a significant step in the right direction. However, this decision alone does not address the full range of problems created by the Commonwealth’s reliance on a cash-based bail system.
The provisions included in S.2185 would make necessary reforms to this unjust system by:
(1) substantially reducing the use of cash bail;
(2) decreasing pretrial detention; and
(3) ensuring that due process is provided to any person that the court wishes to detain pretrial.
In jurisdictions across the country where similar reforms have been adopted, the data clearly shows that these reforms lead to a substantial reduction in the use of cash bail and a significant decrease in the incarceration of people pretrial.
In summary, S.2185 would make the following bail reforms:
1) Move our bail system from a cash-based system to a system that uses objective, evidence-based criteria in determining whether a person should be released pending trial. The two factors that judges would be required to consider when determining pretrial release are: (1) a person’s risk of not appearing in court as necessary; and (2) the safety risk a person may pose to the community if released before trial. These two factors have long been the purpose of bail in jurisdictions across the country.
2) Reduce pretrial detention by changing the initial bail hearing from a detainment hearing to an examination of how to release a person while they await trial. The reforms direct the court to either: (1) release a person that voluntarily agrees to return to court as necessary; or (2) if there is compelling information that the person is unlikely to return to court or may pose a danger to the community while awaiting trial, apply the least restrictive set of non-financial conditions (i.e., not cash bail) that would mitigate those concerns. The reforms make it clear to the court that detention should be avoided whenever possible.
Setting conditions of release is not a new practice and is used in our courts today to some extent. Moreover, in jurisdictions where conditions of release are used in lieu of cash bail, the data shows that this leads to a significant decrease in incarceration of people pretrial.
3) Ensure due process for any person detained pretrial on the basis that they pose a danger to the community. If a person is detained because there are no set of release conditions that would reasonably mitigate the safety risk that the person poses to the community, the reforms guarantee due process in the form of a timely detention hearing where the person will be represented by legal counsel and allowed to introduce witnesses and evidence on their behalf and where the prosecution has the burden of proof.
4) Provide the courts with a scientific, evidence-based risk assessment tool to be used as a guide to help judges make objective and informed decisions on how to set conditions of release. The risk assessment process would involve significant data collection and research, and would be regularly tested and re-tested to examine and eliminate potential racial, economic, gender, and other bias. The bill’s language is explicit on this point. Furthermore, these tools are used across many states and jurisdictions today, including in our juvenile court system.
5) Establish a pretrial services program to assist people in returning to court and avoiding problems on release ahead of trial. These services are voluntary. The services may include support services like workforce training and counseling programs, or they may involve simple solutions like reminder phone calls or regular check-ins to help people return to court at the right time and adhere to their conditions of release ahead of trial.
Reforms similar to the above have now been implemented in dozens of counties, the District of Columbia, and 7 states across the country. Based upon the experiences of other states, we can expect to substantially reduce the use of cash bail, stem the growth of our incarcerated population, and increase court appearance rates, which in turn will speed up the resolution of cases in court.
New Jersey is the most recent state to implement a risk-based release program combined with pretrial services, which is similar to the bail reform proposal included in S.2185. In the first 5 months of this year, only 9 people were subjected to cash bail in New Jersey and the state has seen a 36% drop in jail populations statewide.
In addition, my colleague Senator Brownsberger, the Senate Chair of the Joint Committee on the Judiciary, provides an informative summary of the bail reform provisions on his website: