Bail Reform Again?

The issue of when judges should incarcerate people who have not been proven guilty is again in the news.

We’ve had some tragic murders committed by people charged with crimes but released pending trial.  Governor Baker has just proposed to make it easier to detain people before trial. 

At the same time, California has just passed a law eliminating cash bail and some people are asking whether the bail reform we passed in April went far enough in protecting poor people from being held before trial because they can’t afford bail.

It’s a confusing issue.  Here’s a breakdown.

When a person comes before the court charged with a crime, the court has to decide what to do with them during the months that it may take for their case to be resolved.  The court can release them, hold them without bail, or hold them but allow release upon making bail.

In making that decision, the court has several hard questions to ponder – will the accused harm others if released, will the accused return to court for trial if released, what will be the harms to the accused and their family if they are held?

If a person is shown to be dangerous by clear and convincing evidence in a pre-trial hearing, they should be held until their trial without regard to their ability to post bail.  Our laws have long provided for that in certain cases.

The Governor’s new bill would allow dangerousness hearings in more cases.  It raises a fair public safety question and the legislature will consider it.

In the much more common case where the prosecutor has not moved for a finding of dangerousness, then the only question before the court when a person faces charges is whether it is necessary to hold them to make sure that they appear to face trial.

The goal of our bail reform last April was to assure that in those cases of non-dangerous defendants, poor people would not be held simply because of their inability to pay.

We did not abolish cash bail.  Rather, we require judges to consider affordability — they should recognize that for some people $50 is as hard to post as $50,000 is for others.  We also require judges to formally consider the harm that pre-trial incarceration causes to the accused.

The California reform that abolishes cash bail does not abolish the power of the courts to hold people pre-trial to assure their return.  California courts will evaluate risk using a statistical prediction tool and decide who to hold based on the results.  This may or may not mean that poor people have a better shot of avoiding pre-trial incarceration.

Abolishing bail removes one way that a person, rich or poor, can give a court confidence that they will return to court.  It’s not wrong to allow people to post bail.  The right to post bail is a fundamental right that Americans have had for centuries.  It is wrong is to require unaffordable bail without appropriately considering the financial circumstances of the accused and the harms that incarceration does.

It is also wrong to expect disorganized people to show up to court without some reminders.  Part of our reform package is to create a unit to provide more reminders and support to people to increase their probability of returning to court.  If judges know that defendants will get help, they will be more inclined to release them.

Whether our April reforms will be successful in eliminating unnecessary pre-trial detention remains to be seen.  Our April legislation creates a follow-up commission to assure that the results are evaluated.

Published by Will Brownsberger


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  1. Ah yes, easy bail for the poor criminals. What a wonderful idea!

    Look at this reckless judge in New Mexico who let obvious murderers and terrorists go free on bail:

    They killed a child and were teaching the kids in their compound to conduct terrorist acts.

    From CNN:

    “Prosecutors have argued the accused adults trained children in the use of firearms at the rural compound and should remain in custody pending trial.
    In addition, a missing Georgia boy died during a religious ritual intended to cast out demonic spirits from his body, and his remains were kept on the compound, according to prosecutors.”

    The judge let them go free on bail anyway.

    Hey, what’s wrong with killing a child during a demonic ritual? Freedom of religion, isn’t it?

    ‘Always make things easier for criminal because they’re poor, oppressed, and usually a minority.’

    Know anyone who thinks like that? I do.

  2. In your current reform. How did you instruct judges to determine bail amounts, and do you require a similar predictive assessment on if a defendant will return to court as CA is going to use.

    If it is up to judges to set bail each judge will use their own gut feeling about what bail should be. Or do the same old thing that has always been done. Not very scientific or evidence based. At least if there is a predictive assessment, done based on real model of a person’s data driven situation, the court can have some confidence that for most low level arrested persons they should show up for trial. But this requires good data.

    My understanding of what the Governor is asking to change is that the court be required to consider the entire history with the criminal justice system if an arrested person is going to be released before trial. Rather than just the current cause of arrest. For this to work will require that criminal court records be in electronic form. A project which the commonwealth has yet to complete and has been not finishing for decades. It is my understanding that the Commonwealth’s criminal court records are not easily searchable between court houses. So a judge does not have easy access to a conviction in Dedham if the person is seeking bail in Cambridge.

    So the issue is antique record keeping, and being able to provide information that is comprehensive and predictive based on an individuals history with the criminal justice system. Until the records are modernized, it will be difficult do a evidenced based assessment of a persons likelihood to show up and how dangerous they may be.

    1. Actually Massachusetts has one of the best statewide electronic criminal records in the country. The major weakness is that it is not authenticated by fingerprints.

      There is a lot of interest in providing additional information for judges based on risk tools. I have been very interested in that approach, but have come to see it as having bad flaws and limitations — more on that, perhaps in a future piece.

      The governor’s focus is not on bail, but on dangerousness, which is not about bail. Bail is about return to court. We have a separate hearing on dangerousness and if the person is dangerous, then money has nothing to do with it — they should be held to protect the public.

  3. This is certainly a complex issue. However I think prior to anyone being charged – shouldn’t there be a certain amount of clear evidence to charge someone ? Second – The courts are filled with really petty cases that If looked at might be resolved with out all the need for the courts time.

    I agree there needs to be some sort of guarantee that a person will return to court and it has to be affordable to that person. Bail should also be returned to the person posting it once satisfied (no monies being held or fees) . Clearly there are dangerous people that need to be held and again – that requires that the judges do their jobs (sadly many do not and there is little to no reprimand for judges in MA or fitness tests).

    So We need to develop a set of standards and train and certify judges to handle bail requirements – Yes I am talking about making Judges more accountable – they get a lifetime job – they should be held responsible and required to be recertified – This certification test should be developed and held by the accredited law schools here in MA.

  4. I’m very interested in how the court plans to deal with disorganized individuals. In my experience these people often have mental health supports available to them but are unable to make use of those supports. This is complicated immensely among the homeless.

  5. How many follow up commissions and task forces are there, besides the bail reform commission, to make sure the comprehensive reforms are implemented and working? I know there are a lot and would like to be sure to look out for promised oversight reports. Thanks for all your transparency!

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