Dashawn Price allegedly shot and nearly killed a man in broad daylight outside a crowded bus in Dudley Square last summer, bringing an outraged Suffolk district attorney to the scene. The shooter, said Rachael Rollins, would “be removed from the community and I will be there when it happens.”
Her prosecutors could have made sure Price remained behind bars until his trial by asking a judge to find him dangerous and order him held without bail. Instead, they did what prosecutors in Suffolk County usually do: They asked the judge to impose bail so high that Price, who had limited resources, probably couldn’t afford it. Critics say the practice, while common, is wrong, punishing people without money before they even have a trial.
In Price’s case, however, a group called the Massachusetts Bail Fund came up with the $50,000 bail. In July, Price was set free until his trial, much to Rollins’s dismay.
Now, Rollins is changing her office’s approach to defendants that prosecutors believe are too dangerous to be free while they await trial. As the financially flush Bail Fund increasingly pays to free people facing high bail, Rollins said her office will more frequently ask a judge to hold a special hearing to determine whether defendants charged with certain violent crimes are too dangerous for release.
“As a candidate for DA, I frequently heard that Suffolk County, unlike other DA offices, rarely utilized dangerousness hearings and instead reverted to requesting bails,” she said in a statement. “Having been DA for the past 19 months, I can say with certainty, that is accurate. I will absolutely be revisiting this past practice.”
Worcester District Attorney Joseph Early said his office, too, will now request more dangerousness hearings for defendants considered public safety threats.
Civil rights advocates have long argued that setting high bail to keep dangerous people locked up is not only unfair to people without money, it’s also illegal. The legal purpose of bail, they point out, is to ensure that defendants show up in court, not to punish them.
“We have seen prosecutors improperly rely on high bail instead of going through the appropriate legal channels including dangerousness proceedings,” said Ivan Espinoza-Madrigal, executive director of Lawyers for Civil Rights. “This is wrong and illegal. Relying on high bail perpetuates a two-tiered system of injustice where low-income people remain in jail, while the wealthy — including those accused of reprehensible crimes — go free.”
With the exceptions of prosecutors in Essex and Bristol counties, most Massachusetts DAs generally have not consistently asked for dangerousness hearings, statewide data show.
Bail is fundamental to the criminal justice system, giving people who’ve been arrested an opportunity to be released from jail as long as they pay, at least until trial. Judges are supposed to set bail that is high enough to ensure the defendant will return to court rather than risk losing the money.
The judge may consider an array of factors, from the defendant’s family ties and employment to the seriousness of the alleged crime to the defendant’s criminal record. But the judge is not supposed to base a decision on whether the defendant is dangerous to the public.
For that, prosecutors are supposed to request a special hearing for the judge to evaluate whether a defendant can be safely released. The judge can then order the defendant held without bail for up to 180 days in superior court or 120 days in district court.
But, in practice, such hearings happen infrequently. A Globe review of dangerousness hearings in Suffolk County this year shows that prosecutors requested them in only about 10 percent of the superior court cases where the crime was serious enough for prosecutors to have the option.
By contrast, Essex County prosecutors asked to have defendants held without bail in more than 60 percent of the superior court cases covered by the law, a rate six times higher than in Suffolk.
Essex District Attorney Jonathan Blodgett said his office is sometimes criticized for attempting to hold too many defendants without bail.
“Our decisions are fact-driven and we look at every case individually,” said Blodgett. “In the majority of the petitions we file, the judge finds that we have provided clear and convincing evidence that the person is a danger to the community.
“My job is to speak for and represent victims of crime and I’m unapologetic for that.”
Former Suffolk prosecutors said they did nothing wrong in requesting cash bail instead of seeking dangerousness hearings. They said they asked for appropriate bail in serious cases and the defendants were held. They didn’t anticipate that the Bail Fund would attempt to free people regardless of their records or the charges they face — and also have the resources to pay bail as high as $85,000.
Indeed, the Massachusetts Bail Fund has been a game changer in law enforcement circles as its resources have grown. As recently as January, the nonprofit group was posting bails of up to only $500, but months of protests over alleged police abuses, as well as concerns for prisoners during the COVID pandemic, has brought a flood of donations that allowed the fund to expand its work.
“Pretrial detention, in all forms, is harmful and racist,” said Massachusetts Bail Fund board member Jessica Thrall on Monday. “Public resources should be used to dismantle incarceration and other systems of harm and invest in community-led safety. "
However, the organization caused controversy as it bailed out many defendants accused of serious crimes, especially in Suffolk County. One of them, Shawn McClinton, a level three sex offender with two convictions and another open case, was arrested again in July and accused of raping another woman.
Boston Police Commissioner William Gross as well as Rollins lambasted the fund for putting McClinton back on the street.
“It’s a direct smack in the face of the citizens who are doing their part and coming forward to make sure their children are safe,” said Gross.
Rollins was not district attorney when a judge set a $15,000 bail for McClinton, and she expressed outrage when the Bail Fund set him free. In a statement, she called the Bail Fund’s willingness to free McClinton “the act of a coward.”
“I would have so much more respect for the Bail Fund if they had bailed him out and then let him stay in one of their homes.”
Bail Fund supporters say the Suffolk DA’s office had itself to blame: If prosecutors thought McClinton was too dangerous to be released, they should have asked a judge to declare him dangerous instead of agreeing to bail. Even when McClinton was rearrested, records show Rollins’s prosecutors did not ask that McClinton be held as dangerous.
Rollins said she will now consider asking that more defendants be declared dangerous, but she said there are risks. Holding a hearing early in a case could jeopardize an ongoing investigation by revealing details of the prosecution case to the defense, she said. And although victims are not legally required to attend dangerousness hearings, judges or defense lawyers often request their testimony, which can be traumatic for them.
“I absolutely support efforts to eliminate the disparities in our criminal legal systems ― and there have been stark disparities in the use of pretrial detention,” Rollins said. “But I also recognize that we, as the prosecution, must do better in moving for dangerousness if we believe the individual before us poses a danger.”
Bristol District Attorney Thomas M. Quinn III, whose office regularly requests dangerousness hearings, said the hearings are more fair than the “arbitrary and outdated practice” of setting bail.
“This approach will promote more fairness in the criminal justice system while also protecting the public from dangerous individuals,” Quinn said.
But Suffolk Law school professor Rosanna Cavallero cautioned that dangerousness hearings should be reserved for only the most extreme cases.
”Everybody is entitled to bail except the very few people that we can make a preliminary finding at a very high bar that they really pose a danger of violence,” Cavallero said, adding that if prosecutors sought to hold everyone charged with a serious crime “the courts would close. We can’t have dangerousness hearings for all of them.”
Andrea Estes can be reached at firstname.lastname@example.org.