It’s time for Mass. to eliminate cash bail

MASSACHUSETTS’ INCARCERATED population has been declining for several years. As a result, we now have the lowest overall incarceration rate in the US, and the Massachusetts Department of Corrections has recently announced the closure of one of its state prisons – MCI-Cedar Junction.

Although it is important to celebrate milestones like the prison closure and declines in incarceration, we cannot let this progress obscure the harms that continue to be done to people caught in the Massachusetts criminal legal system. This includes the pretrial system. In any given year, Massachusetts courts ask roughly 23,000 people to pay bail for their freedom; and over 8,000 people remain in jail pretrial—even though they do not pose a danger to public safety—because they cannot afford to post bail.

This is not without consequence. A large and growing body of research indicates that pretrial detention can do harm to individuals’ physical and psychological well-being; significantly reduce employment, wages, and annual earnings; increase their likelihood of conviction on current charges; lead to more severe sentences with conviction; and increase the burden of criminal legal debt, often shared with family members.

Further, Massachusetts lags behind jurisdictions that have adopted cash bail reforms to stop penalizing poverty, to reduce racial disparities, and to end mass incarceration. In 2019, for instance, New York passed bail reform legislation that eliminated cash bail for many misdemeanors and nonviolent felonies, leading to a 31.4 percent decrease in the state’s jail population. Consequently, New York now has one of the lowest jail incarceration rates in the country (63 per 100,000 residents), even lower than Massachusetts (89 per 100,000). And while some media have sensationalized New York’s bail reforms, suggesting they are the cause of spikes in violent crime, research shows New York’s bail reform measures have had no effect on the state’s crime rate.

Massachusetts also falls behind Washington D.C., which banned unaffordable cash bail in 1992 and releases over 90 percent of people without bail. If Massachusetts were to match D.C.’s rate of release without bail, an additional 14,000 people in the Commonwealth could be released annually without a financial burden. Further, D.C.’s bail system provides procedural protections that the Commonwealth’s does not. In D.C., if someone remains in jail 24 hours after bail is set, the court automatically reassesses—and often lowers—their bail amount. When someone remains in jail after bail is set in Massachusetts, they must petition for a bail review, which may or may not be approved.

New Jersey and Harris County (Texas) provide further examples of successful bail reforms. New Jersey replaced its cash-based system with a risk-based one and now assigns cash bail in less than 0.2 percent of cases. After amending its bail rules to require that people charged with most misdemeanors be released without cash bail, Harris County saw an 11-percentage point decline in the Black-White gap in pretrial release.

These jurisdictions highlight the positive effects of significantly limiting the use of cash bail. And soon, we will have evidence on the impacts of abolishing cash bail altogether. In January, Illinois will be the first state with a pretrial system that does not allow the use of cash bail.

The Commonwealth’s last attempt at bail reform occurred nearly five years ago. In 2017, the Massachusetts Supreme Judicial Court released its Brangan decision, requiring judges to consider a person’s financial resources when setting bail. Then, in 2018, the Criminal Justice Reform Act revised the bail statute to reflect Brangan. But data shows these reforms had little effect on the proportion of people being released without bail, and thousands are still asked to pay their way out of jail each year. Pre-Brangan, 79.8 percent of people were released without bail after arrest. Post-Brangan, in fiscal year 2019, 79.4 percent of people were released without bail pretrial. Still, state leaders have opted against further bail reforms.

Why do judges continue to set bail—including unaffordable bail—in so many cases? It is likely because Brangan does not limit when judges can use cash bail but only requires them to consider one’s ability to pay when setting bail. Moreover, Brangan explicitly allows judges to set unaffordable bail when they believe someone may not appear in court, as long as they state on the record why they believe unaffordable bail is necessary to assure court appearance.

To continue reducing the number of people caught in the criminal legal system, Massachusetts should move towards eliminating cash bail altogether. This would enable Massachusetts to release thousands more people per year without a financial burden, reducing the harms caused by pretrial detention and the cash bail system more broadly. By allowing judges to set unaffordable bail, Massachusetts is missing a crucial opportunity to further reduce incarceration.

Sandra Susan Smith is the Daniel and Florence Guggenhiem P\professor of criminal justice and faculty director of the Program in Criminal Justice Policy and Management at Harvard Kennedy School. Isabella Jorgensen is a final-year master in public policy student at the Kennedy School and research assistant in the criminal justice program.