CAN THE EFFORT to right the wrongs of the criminal justice system go too far?
That’s the argument coming from liberal-leaning prosecutors after the arrest on new charges of a convicted rapist who was released from custody thanks to the efforts of the Massachusetts Bail Fund. The organization is part of a broad national effort calling for reform of the bail system and arguing that people should not be held before trial simply based on their inability to pay bail. The nonprofit group raises money to get people out of jail as they await trial.
The “criminalization of poverty,” advocates say, is just one part of a broken system that winds up treating poor black people and other marginalized groups more harshly than those of greater means.
The Massachusetts Bail Fund has seen a surge in donations since the George Floyd killing brought a heightened awareness of racism in the criminal justice system. That, in turn, has allowed the organization, which previously focused on posting more modest bail amounts for those charged with lower-level offenses, to bail out those charged with serious offenses who are being held on significant bail.
In July, the fund posted $15,000 bail to release Shawn McClinton, a 39-year-old being held at the Nashua Street Jail on rape charges. Three weeks later, McClinton, who had two prior rape convictions, was arrested and charged with raping and attempting to strangle a Quincy woman.
A Boston University student group canceled a fundraising event it had scheduled for last Friday to support the bail fund, apologizing for its “ignorance” that the nonprofit bailed out those charged with serious offenses.
Meanwhile, Attorney General Maura Healey and Suffolk District Attorney Rachael Rollins are both condemning the nonprofit.
“It was dangerous and irresponsible for the Massachusetts Bail Fund to post bail for McClinton, who was facing serious felony charges and has a violent criminal past,” Healey told the Globe.
Rollins emphasized that, unlike traditional bail arrangements in which a family member posts the money and risks losing it if bail terms are violating, those freed by the bail fund don’t have the same incentive to stay out of trouble and return for court dates.
“When a family member or friend posts bail, there is an added pressure on the defendant,” Rollins said in a statement released yesterday. “Any violation, whether a new offense or not showing up in court, could result in that family member or friend losing their money that was posted for bail. That’s how the bail statute works.The Bail Fund isn’t a friend or family member of the accused. There is no discussion on the ride home of ‘what the hell are you doing?’ or ‘what in the world have you done?’”
The director of the Boston Area Rape Crisis center called it “unfathomable” that McClinton was even eligible for bail — though she also slammed the bail fund for then getting him out.
Prosecutors can seek to have defendants held without bail by going through a “dangerousness hearing,” but Rollins said it is sometimes preferable to instead seek a high bail because a dangerousness hearing might require a recently-traumatized victim to testify.
But it seems fair to ask whether this might have been a case where such an effort was nonetheless warranted.
The idea that the defendant would have greater incentive not to commit a new offense or violate other conditions of release if bailed out by a family member seems a bit questionable in the case of McClinton — a registered sex offender whose conscience might not have been guided by concern for a benevolent aunt’s savings account.
It is easy to question the bail fund’s actions after McClinton was arrested on a new rape charge. Would Healey have called it “dangerous and irresponsible” to have McClinton released had he come from a well-off family that posted the bail?
That brings the debate back to the question of whether there are different legal systems for the well-heeled and the poor. There’s a lot to unpack with how the system treats people of different backgrounds, including those charged with violent offenses.
But the organizers of the bail fund aren’t doing themselves — or their cause — any favors by refusing to engage the debate. The Globe says the bail fund’s unpaid director, Atara Rich-Shea, “has been on vacation and unavailable since early July.” Her sister, who has helped raise money for the fund, declined comment. Meanwhile, her brother, Alex Rich-Shea, said it was “stupid” and “morally bankrupt” to bail out defendants facing violent charges.
“I have no idea what she’s thinking, and she has refused to explain her decisions to any reporters thus far,” the Globe says Alex Rich-Shea wrote online.