Massachusetts bail reform commission issues final report

As co-chair of the state’s bail reform commission – created by the landmark criminal justice reform bill passed in 2018 – I collaborated with co-chair Rep. Cronin as well as legislators, judges, probation officers, constitutional officers, and bail experts to evaluate policies and procedures related to the current bail system and to recommend improvements or changes. Among the many recommendations included the final report are: (1) increasing the use of alternative tools to remind defendants of upcoming court dates, like text messages or automated phone calls; (2) making the guidelines on the procedures for bail both accessible and readily available to the public at courts and criminal justice agencies; (3) expanding training on the Supreme Judicial Court’s opinion in the Brangan case and the Criminal Justice Reform Act (CJRA) to other agencies and entities involved in the bail process; (4) increasing our pretrial data collection efforts to help the Legislature to ensure the full implementation of recently enacted bail reforms; (5) improve record-keeping practices and information-sharing on failures to appear in court; and (6) encouraging further study and eventual reform to our current practice of setting and processing bail outside of the courtroom, which is too often inefficient and fraught with unique challenges.

The elimination of cash bail was discussed at one point during the commission’s yearlong work, but the commission ultimately decided that it would be premature to eliminate cash bail without first analyzing the impact of the recent Brangan v. Commonwealth case. The CJRA largely codified the Brangan decision, thereby ensuring that bail shall be set no higher than what would reasonably assure the appearance of the defendant for trial after accounting for his or her financial resources. The CJRA also added an additional factor that a judge must explain why the Commonwealth’s interest in bail or a financial obligation outweighs the potential adverse impact on the person, their immediate family or dependents resulting from pretrial detention. The Brangan decision, combined with the CJRA, should result in a reduction in the number of defendants detained on excessively high cash bail amounts, but only time will tell. As such, as we continue our ongoing efforts to reform our pretrial system in Massachusetts, it is important that we take time to carefully observe the results of the Brangan decision and collect adequate data before we propose any additional changes to our bail system. The goals for our pretrial bail system should continue to be reducing unnecessary incarceration, refocusing our efforts on diversion, and creating a fairer system for all.

The final Bail Reform Commission report can be found here