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Minorities more likely to be ordered held awaiting trial, study says

A disproportionate number of racial minorities are in jail as they await trial, and those who are granted bail face amounts up to four times higher than white defendants in some Massachusetts counties, according to a study on pretrial detention.

The report released Tuesday by MassINC, an independent Boston think tank, looked at pretrial detention in 10 counties and found the most striking disparities in Barnstable, Franklin, Berkshire, and Norfolk.

But prosecutors in some of those counties say that societal issues contribute to the discrepancies.

“It’s a chicken-and-egg story to be blaming the criminal justice system” said Cape and Islands District Attorney Michael D. O’Keefe, whose jurisdiction includes Barnstable. “It’s misplaced.”


The study found that in Barnstable, black residents make up 2.4 percent of the county’s population, but represent almost 25 percent of the county’s pretrial detainees. And in Franklin County, the number of black defendants awaiting trial in jail is nearly 14 percent, while 1.5 percent of county residents are black.

“These stark racial and ethnic differences indicate a problem,” said Benjamin Forman, research director for MassINC, who coauthored the report. “If we create havoc in your life, the chances of you becoming a habitual offender is much greater. Racial bias at the front end multiplies.”

The report also highlights bail disparities in three counties, including Barnstable, where the median bail set for black defendants is $20,000, compared with $5,000 for white defendants. In Berkshire, median bail set for black defendants is $5,000; $2,500 for Hispanics defendants; and $1,000 for white defendants.

Researchers did not examine what crimes the defendants were charged with. Bail is set by a judge who is supposed to consider 17 factors to weigh the probability that a defendant will appear for trial; the study found that the process is largely subjective. And though a separate hearing is required to hold a defendant who is considered dangerous, some judges might set high bail to prevent dangerous defendants from being released, according to specialists interviewed for the study.


Forman emphasized that the study shows only that there is a disparity, not what causes it.

“I don’t know if it’s bias or if there are different racial and ethnic patterns that explain bail disparities,” Forman said.

But O’Keefe said that those “upset about this should look at the causes for criminal activity in the first place,” attributing the discrepancies to breakdowns in family structure, lack of education, and a lack of job opportunities.

Berkshire District Attorney David F. Capeless also criticized the report, noting that researchers did not examine the type of crime committed in correlation to the amount of bail. “The seriousness of the crime plays a role in setting bail,” he said. “Without looking at it, they’re missing something big.”

The Massachusetts Trial Court launched an effort two years ago to address some of the issues outlined in the report and launched a pilot pretrial screening tool for juvenile defendants in six courts earlier this month. The new assessment tool is meant to eliminate unintended bias when setting bail. A similar program for adult defendants is in the works, Probation Commissioner Edward Dolan said in a statement Tuesday.

“The goal of this effort is to build pretrial services that support fair and effective decision making and provide a safe and cost-effective alternative to jail and provides diversionary pathways as appropriate,” he said.


State lawmakers provided more than $300,000 toward developing the risk-assessment tool. Legislation to require the courts to use data to determine a defendant’s bail is pending.

“We’ve fallen behind other states,” said state Senator Ken Donnelly an Arlington Democrat and cosponsor of the bill. “The priority is to make sure we’re fair and equal to everyone.”

Jan Ransom can be reached at Follow her on Twitter @Jan_Ransom.