Why Bail Jails Are a Bad Idea

Other states have jumped into the lead with bail reform, but Massachusetts is still lagging behind.

If you knew Massachusetts could save $125 a day per person, increase public safety, reduce overcrowding without building new prisons and jails, and only lock up those awaiting trial who have been deemed truly dangerous, would you take that deal?

That’s what the Pretrial Justice Institute (PJI) and Maine Pretrial Services put on the line this past November when they advocated for bail reform to legislators, members of the Mass. Trial Court, and the public. States such as Colorado, Delaware, Kentucky, Maine, Ohio, Virginia, as well as Washington, D.C., have all saved significant amounts of money and reduced the return rate to prison through innovative pretrial practices; seven other states have programs under construction. In other words, other states are doing away with the antiquated system of bail like the one—wait for it—in place in Massachusetts.

Law and Order aside, bail’s main purpose in Massachusetts is to assure that a defendant will appear in court. But a Boston-based 2012 study found that bail frequently acted as an “obstacle to pretrial freedom.” This is mainly because the state’s system is weighted heavily against the poor: many who are charged with misdemeanors and non-violent crimes can’t afford even $100 bail. According to PJI, 53 percent of felony defendants can’t pay bail, and so they’re put in awaiting-trial units in jails throughout the entire pre-trial period which could be a month or even a year—before they’ve even been found guilty of anything.

Norma Wassel, of the Committee for Public Counsel Service, who founded the Bail Fund to help the indigent, said taking these people out of their community while awaiting trial has damaging collateral consequences. “They lose public housing, custody of children, even if it’s temporary, public benefits, treatment slots in drug programs, and jobs,” Wassel said. “Plus, being in jail can exacerbate mental health conditions.”

And then there’s the impact it has on an already-strained system of incarceration. Right now, added expenses come from hundreds of defendants awaiting trial, many who cannot afford bail and are housed alongside those serving sentences in facilities that are often overcrowded—in some cases, as much as much as 155 percent. “What is driving overcrowding in prisons like Framingham and jails like Cambridge is men and women awaiting trial,” said Lois Ahrens, director of the Real Cost of Prisons Project, a prison advocacy group. “So we need to look at alternatives to alleviate overcrowding, such as those we see working in other states.”

The key to fixing these problems, experts agree, is to move beyond a money-heavy system for posting bail. Some states are initiating the use of GPS monitors, court reminders, curfews, and case managers, for example. Most effective is a system of pretrial “risk assessment,” which means a judge gets as much information to make the most informed bail decision. “We need to figure out who really will appear and who won’t,” said Ahrens. “Bail doesn’t assure that.”

But if innovative ways of solving this problem are progress, then it still doesn’t appear as if Massachusetts is heading in the right direction. Newton Rep. Kay Khan has a bill before the Joint Committee on the Judiciary that calls for a new Women’s Pretrial Facility to be built. It would be a setback for women if this occurs: according to a report out of the Wellesley Center for Women, in 2012, 5,300 children were affected by their mothers’ pretrial detentions from Framingham MCI alone. In an interview, Khan said it’s important to “keep these women with their families in their communities,” but she also said that “the impetus for this bill was that I have been concerned about the fact that for a women who gets into trouble, there is no place other than Framingham for her to go.” After talking with members of Families for Justice as Healing, many who are formerly incarcerated women, Khan said she now is rethinking — but the bill is still there, ominously, as what Khan called a “placeholder.”

Even more unsettling, we are already building new structures to house those awaiting trial. A $37 million expansion at the Billerica House of Correction will be completed in April and will hold 496 pretrial detainees from the soon-to-be-closed Edward J. Sullivan Courthouse in Cambridge. A bill filed by state Sen. Ken Donnelly, an Arlington Democrat, and supported by Sheriff Peter Koutoujian, calls for the creation of a special commission to evaluate potential sites for a new jail in southern Middlesex County that will take over those 496 awaiting trial beds as soon as possible. Koutoujian told the Lowell Sun that he wants a five-acre site to be called “the Southern Middlesex Justice Center” where he hopes to then transfer the 496 awaiting trial men, a jail that will cost millions more.

Unless legislators, the Mass Trial Court, and other officials who have a stake in these issues decide to undertake bail reform in Massachusetts, bail jails are the only answer we seem to have on the horizon. That answer not only costs more money, but research has shown that those held in pre-trial facilities receive harsher punishments than “those who are able to purchase pre-trial freedom.”

It’s time for Massachusetts to take a line from the late Robert F. Kennedy. When he was the U.S. Attorney General, he spoke at the first National Bail Symposium in 1964. He commented on why the money system of bail fails us: “… Usually only one factor determines whether a defendant stays in jail before he comes to trial. That factor is not guilt or innocence. It is not the nature of the crime. It is not the character of the defendant. That factor is, simply, money.”