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A broad push for pretrial justice reforms from the states

The Bronx County Hall of Justice in New York. The practice of making freedom contingent on material well-being has made bail reform a popular cause and the elimination of cash bail a goal of many in the criminal justice reform movement. (George Etheredge/The New York Times/File 2016

Nationwide, 500 new state laws in the past five years have addressed the pretrial side of criminal justice, an area every state has tackled in one way or another, according to the National Conference of State Legislatures.

During the NCSL annual summit in Boston on Tuesday, officials from other states highlighted their experience with one particular pretrial policy: reforming cash bail systems in hopes of jailing fewer people solely for their inability to pay. They said efforts to reform pretrial detention policies often face challenges on their path into law, but can also ultimately pay off by reducing incarceration and recidivism rates.


Across the country, 11.7 million people are admitted annually to local jails and 631,000 to state and federal prisons, Laurie Garduque of the John D. and Catherine T. MacArthur Foundation said Tuesday during a panel held at the Boston Convention and Exhibition Center. She said three-fifths of people in jail are awaiting trial and have not been convicted.

“This is very much a local problem that requires local solutions, but is national in scope,” Garduque said.

Garduque said this is a “historic moment” where there is a broad consensus that the “misuse and overuse of jails” is a problem that must be addressed.

In 2016, 44 states and the District of Columbia passed 118 new pretrial laws, reflecting what an NCSL summary describes as “continued interest in making changes to the front end of the criminal justice system.”

A yearlong review of the Massachusetts criminal justice system yielded numerous policy recommendations, focusing on what happens during incarceration and after release. After the review’s findings were released in February, Governor Charlie Baker filed a bill based on some of its ideas, including giving certain offenders serving mandatory minimum sentences the opportunity to reduce their time in state prison by participating in programming.


Speakers at Tuesday’s panel discussed obstacles they’d faced in pursuing certain criminal justice policies, including pushback to changing bail systems.

California state Senator Robert Hertzberg said law enforcement in his state is suffering “reform fatigue” that makes it hard to give new proposals a fresh look. A series of criminal justice reform efforts have been undertaken there since a 2011 Supreme Court ruling found conditions in California’s overcrowded prisons were unconstitutional and ordered a reduction in the prison population.

Hertzberg filed a bill that would do away with his state’s fixed bail schedule — the median bail amount is $50,000, he said — and instead charge officials with assessing defendants before a trial to determine if they pose a risk of violence or are likely to flee.

The cash bail industry is fighting the bill, which has passed the California Senate, Hertzberg said.

Bail reform legislation is also facing industry opposition in Maryland, where Baltimore County Senator Delores Kelley said bail bondsmen contributed over $300,000 to members of two committees that have jurisdiction over the bill.

Proposals to restrict or eliminate cash-based bail, dealing a blow to the bail industry, can also be a hard sell with conservative lawmakers who favor free-market policies, said Marc Levin, who directs the Center for Effective Justice at the Texas Public Policy Foundation and the conservative criminal justice think tank Right on Crime.

Levin said pretrial incarceration tripled nationally since 1970, while the rural jail population grew by 888 percent over the same time period. He said pretrial incarceration costs $13.6 billion per year.


Levin said the decision of whether to put someone in jail before a trial should be decided based on their risk of failure to appear or violence, not on their ability to pay.

In Massachusetts, bills filed by Representative David Rogers and the late Senator Kenneth Donnelly call for limits on the use of cash bail and the development of a risk-assessment tool to predict a defendant’s probability of returning to court. The bills are before the Judiciary Committee, along with dozens of other criminal justice bills. Attorney General Maura Healey also favors eliminating detentions based solely on someone’s inability to post bail.