SUFFOLK COUNTY DISTRICT ATTORNEY Rachael Rollins said on Monday that her office is withdrawing a motion seeking a steep increase in bail for a homeless defendant whose original bail was about to be paid by a nonprofit fund.
The motion, which CommonWealth reported about on Sunday, sparked sharp criticism from the head of the state office overseeing legal representation for poor defendants and from the director of the Massachusetts Bail Fund, who said it would only exacerbate enormous existing disparities that leave thousands of poor people stuck behind bars to await trial, while those of greater means are able to post bail and get released.
The case involves Barry Twomey, a 58-year-old Boston man who was ordered held last month after his arrest on armed robbery charges on $5,000 bail — the amount requested by prosecutors. When the DA’s office learned that the money was going to be posted by the Bail Fund, a seven-year-old nonprofit that raises money to secure the release of indigent defendants, it filed a motion seeking a 10-fold increase in Twomey’s bail to $50,000.
Rollins’s office did not respond to several requests for comment for the story. On Monday afternoon, Rollins took to Twitter to announce that the motion was being withdrawn. She took responsibility for the case, but said she had not actually been aware of the filing.
“Regarding the 10x increase Bail Motion,” she wrote. “I did not know my office had taken this position until the ACLU told me. This Motion will be withdrawn and I will be speaking to my staff. I may not agree with everything the Bail Fund does, but my office, as in me, Rachael, was wrong here.”
A similar motion to increase bail 10-fold in a second case was also filed by the DA’s office earlier this month. It’s not clear whether Rollins plans to pursue that request, which is scheduled for a hearing later this week.
Criminal justice reform advocates called the motion in Twomey’s case a harshly punitive move that would set back efforts to reduce the role of bail in the criminal justice system. Rollins herself has embraced those efforts, vowing in her 2018 campaign to work to end cash bail.
“Seeking to increase a homeless person’s bail by ten times is a disappointing and unprecedented maneuver that shows how bail continues to be unconstitutionally used as pretrial punishment,” Anthony Benedetti, chief counsel for the Committee for Public Counsel Services, which oversees legal representation for poor defendants, said last week of the DA’s motion, which was filed on August 14. “Bail disproportionately affects the poor and people of color, and the Bail Fund appropriately seeks to give those with the least the same opportunity as wealthy people who are pulled into the criminal legal system.”
The role of bail and the work of the Bail Fund, an organization that supports the release of all pretrial detainees, have been at the center of heated debate in recent weeks after a Suffolk County defendant held on rape charges was released on bail posted by the fund and was arrested within weeks on a new rape charge.
Rollins lit into the Bail Fund for paying the $15,000 to secure his release, as did Attorney General Maura Healey.
But reform advocates said the attacks were misplaced. The purpose of bail is to ensure a defendant’s appearance at trial, they said. If prosecutors believe a defendant posts a threat to the community, the DA’s office can seek a dangerousness hearing at which a judge can order the suspect held without bail.
In Twomey’s case, the DA’s motion said the Bail Fund’s willingness to step forward to secure his release constituted a “changed circumstance” that was grounds for the court to consider a request for higher bail. Prosecutors argued that Twomey would have little incentive to return to court to face trial, since it’s not the funds of his family or a friend that would be forfeited if he defaults, but an organization he has no ties to.
Twomey’s court-appointed attorney, Patrick Gioia, said last week that there is no provision for courts to consider the relationship between a defendant and the party providing bail. Allowing that connection to be probed and serve as grounds for increasing bail, he said, would set off a harmful “arms race” in the system.
“Of course I’m thankful that the motion has been withdrawn and that’s, to me, the right thing to do,” he said on Monday. “I’m still unclear of why it even came to this.”
The executive director of the Bail Fund, Atara Rich-Shea, said Twomey’s bail remains far above his ability to pay. The decision to withdraw the motion, she said, “does not erase the fact that $5,000 is still a bail that Mr. Twomey could not afford.” Rich-Shea said that bail amount shows that Rollins’s office, like that of all other DAs in the state, “continues to use bail, designed as a mechanism of release, to incarcerate mostly poor, black and brown people.”
Benedetti praised the office’s reversal on the issue. “We appreciate DA Rollins’ decision to withdraw the motion to increase bail in this case,” he said. “We applaud her for being accountable. We sincerely hope that this was an isolated incident and that bail will not be used as punishment in any case. We also hope that the presence of the Massachusetts Bail Fund will never be a factor in a bail argument.”
There is, however, at least one other case pending in which Rollins’s office is making a similar request to have a defendant’s bail increased 10-fold.
Cesar Mauricio Lara-Aguasvivas, a Dominican Republic citizen with permanent resident status in the US, has been held in jail for more than three years awaiting trial after he was arrested in 2017 and charged, with three others, as part of a brutal armed home invasion in Hyde Park in which a 60-year-old woman was robbed, kidnapped, and badly beaten. He is also facing armed robbery charges from an incident the day before at the MBTA station in Mattapan Square.
Based on indications that the Bail Fund was willing to pay the $50,000 bail Lara-Aguasvivas has been held on, Rollins’s office filed a motion on August 12 asking that his bail be increased to $500,000. The language of motion is identical at points to the filing in the Twomey case, arguing that the Bail Fund involvement constitutes a “changed circumstance” warranting the increase, and that Lara-Aguasvivas is a flight risk.
Meg Stanley, Lara-Aguasvivas’s attorney, objected to the DA’s motion in a response filed today, and challenged the idea that her client is a flight risk. She said Lara-Aguasviva, who was 20 at the time of his arrest, suffers from a serious cognitive impairment and that he and his mother, who lives in Milton, both cooperated with investigators before charges were brought, even aiding them in locating his older brother, who is one of the others charged in the case. Stanley also offered the surrender of his passport as a new bail condition.
Allowing a 10-fold increase in bail because of the Bail Fund’s involvement would open the door to courts conducting “a judicial inquiry into the nature of each defendant and surety” to “decide who had a ‘sufficient’ relationship and who did not,” Stanley wrote in her filing. She said such an inquiry is not only impractical, “but there also exists no case law or statute which authorizes the court to discriminate in this manner.”
A hearing on the DA’s motion is scheduled for Wednesday.
The DA’s office did not respond to an inquiry on Monday, following Rollins’s reversal in the Twomey case, asking whether it was still pursuing the request for increased bail in the Lara-Aguasvivas case.
If the court allows the bail increase based on changed circumstances, Stanley wrote, what would prevent the DA’s office from seeking a further increase if the Bail Fund or another third party stepped forward to pay the higher amount.
“This circus could continue over and over as means to effectively thwart the defendant’s ability to ever post bail,” she wrote. “Such a practice would be contrary to the well-settled purpose of bail in this Commonwealth.”