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OPINION

The Massachusetts Bail Fund is on the right side of the law — and justice

Detaining many to avoid the dangers posed by a few is not only inexcusably unjust, it actually increases the likelihood of the very dangers many fear.

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It was only a matter of time before the Massachusetts Bail Fund would facilitate the pretrial release of a defendant who would go on to be charged with a shocking new crime. That time came earlier this month.

A twice-convicted rapist, Shawn McClinton, was being held in jail awaiting trial on new rape charges when the Bail Fund posted his $15,000 cash bail, freeing McClinton while his case worked its way through the system. Within three weeks of pretrial release, however, McClinton was back in custody, accused of assault, kidnapping, and rape yet again.

Many, including local law enforcement, are understandably outraged, directing their ire at the Bail Fund for being “charge neutral” and providing the funds that would enable a serious and violent offender to go free pretrial. The outrage people feel is understandable, but the ire directed at the Bail Fund, and other funds like it, is misplaced.

The Massachusetts Bail Fund is a private charity that raises money to pay cash bail for defendants without making judgments on each case. Its leaders argue that bail is, by nature, discriminatory, and the courts should withhold bail from those who pose a high risk to public safety. Support for the Bail Fund has surged in the current outcry over racial injustice, and it has become the focus of policy debate — instead of the underlying problem of pretrial detention of those charged with lesser offenses.

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The focus on cases like McClinton’s obscures an important truth: They are outliers. Relatively few suspects engage in new criminal activity after being released pretrial. This is so even in states or municipalities where the cash bail system has, for all intents and purposes, been dismantled, with largely positive results.

New Jersey is one example. A joint effort by all three branches of government led to the formation of the Criminal Justice Reform initiative. There, since the enactment of the reforms in 2017, the overwhelming majority of defendants are released within 24 hours and nearly all within 48 hours; most spend no time in jail. Only those charged with the most serious offenses, those of highest risk to public safety, are detained while their cases are adjudicated. Because of these reforms, New Jersey’s jail population has plummeted. Despite releasing the vast majority of their defendants, rates of new criminal activity during pretrial release have essentially remained the same; fears that crime rates in New Jersey would spike have not materialized.

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As a growing body of research suggests, we do much more harm than good by holding individuals pretrial. Pretrial detention has been shown to dramatically increase the likelihood that individuals will reoffend in the short and long term. This is true even for low-risk defendants held on low-level offenses. In other words, through pretrial detention, the state is essentially creating recidivists out of a not insignificant number of individuals who would likely not have further criminal justice involvement were it not for detention.

My own research, based on in-depth interviews with almost 300 pretrial detainees in San Francisco, Houston, Chicago, and Louisville, Ky., indicates that it takes as little as two days in jail awaiting trial to begin to experience pretrial detention’s negative and long-lasting effects. In absolute and relative terms, jails are awful places. This is not simply because people incarcerated in jails lack liberty and autonomy. The suffering associated with the jail experience goes well beyond these complaints. With poor and unstable funding, jails tend to employ staff who are underpaid and poorly trained. They have rules and regulations that staff enforce inconsistently but inmates are punitively sanctioned for noncompliance.

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Pretrial inmates also shared with my research team and me that daily life in jail is unpredictable and volatile. Individuals must be hypervigilant so as not to become prey to other inmates and staff. Facilities are not only unsafe but also often unsanitary; they are breeding grounds for the spread of infectious disease and violence. Inmates are offered limited, if any, programming to occupy and engage them, and they are provided health care and other essential social services that are meager at best, a distressing reality given that people incarcerated in jails are a heterogeneous population disproportionately beset with a number of often untreated chronic health conditions, mental health illnesses, and substance use disorders.

Given all of this, it is not surprising to learn that pretrial detention can have devastating effects on the lives of those held, especially those who are held simply because they are too poor to make bail for offenses that are typically fairly minor. The tragic death of Kalief Browder, brutalized on Rikers Island for three years while awaiting case adjudication for a low-level offense for which there was scant evidence, has brought much-needed attention not only to the horrors routinely experienced by those held pretrial, but also to the predictable consequences for individuals who become ensnared in the system, often unjustly. Upon release, Browder committed suicide. While most do not lose their lives by death, mortality rates in jail, already high, are on the rise. Illness takes most, but a significant minority die from suicide; homicides are also a major cause.

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Roughly 5 million unique individuals are held pretrial in the United States each year; this equals over 10 million annual jail admissions. Detaining many to avoid the dangers posed by a few is not only inexcusably unjust to those individuals, their families, and the communities in which they are embedded, it actually increases the likelihood of the very dangers many fear — in too many cases creating public safety issues where they did not exist before.

Although the Bail Fund has angered many, its interventions are not only lawful and morally grounded, they provide an overall benefit to society, helping to reduce inequities in a judicial system rife with them.

Sandra Susan Smith is a professor of criminal justice and faculty director of the Program in Criminal Justice Policy and Management at Harvard Kennedy School and professor at the Radcliffe Institute.