Middlesex District Attorney Marian Ryan said she has asked prosecutors in her office to stop requesting bail for minor nonviolent crimes, a policy that other prosecutors across the country have also been adopting.
People who might have been held in jail for days, if not weeks, because they were unable to pay bail in cases like drug possession, shoplifting, or destruction of property will be released, Ryan said.
“For many people, being held for 30 days can have a disproportionate effect on their lives. They lose their jobs, their housing, their kids,” Ryan said in a telephone interview. “I think anybody who is attuned to the discussions around criminal justice reform, around more progressive policing, has been talking about these issues.”
The new practice, which Ryan said has been unfolding gradually in Middlesex, is part of a growing movement to reexamine bail requests that many criminal justice reform advocates say disproportionately affect poor people and minorities. A bill in New York would eliminate cash bail for many crimes, and two district attorneys in the state have started ordering prosecutors not to request bail for low-level offenses.
Recent studies nationwide and in Massachusetts have shown large disparities between black and white defendants awaiting trial in jail, with minority defendants paying higher bail.
“No one should be locked up because they cannot afford to pay a cash bail,” said Randy Gioia, deputy chief counsel for the Committee for Public Counsel Services, which represents indigent defendants in Massachusetts. “Cash bail for low-level charges forces poor people to plead guilty, even if they are innocent, just to get out of jail and return home. This is a good policy change for DA Ryan. All the DAs in Massachusetts should follow her lead and put an end to a fundamentally unfair practice that does not make anyone safer.”
Other prosecutors said they already do.
“Middlesex is moving to a position more in line with the longstanding practice in Norfolk County,” said David Traub, spokesman for Norfolk District Attorney Michael W. Morrissey.
Jake Wark, spokesman for Suffolk District Attorney Daniel F. Conley, said the office has been running diversion programs for years that keep juvenile and drug offenders out of jail or detention while they are awaiting trial.
“We don’t find a benefit in holding low-level nonviolent offenders behind bars before trial when we don’t intend to seek jail or prison after trial,” he said. “In most district court cases, that’s the best outcome for public safety, individuals, and the community, and it’s been our practice for years.”
Ryan said she consulted with police officials in the county, as well as defense attorneys and constituents.
Concord Police Chief Joseph F. O’Connor supported the change. “I think it’s good public policy,” he said. “People who are struggling, if you’re holding them . . . and they don’t report for work and they lose their job, they’re in a much worse situation than they were before. We want people to be successful in our communities.”
Marc Levin, vice president at Right on Crime, a Texas-based conservative public policy institute, called Ryan’s policy change a “very important step.”
“I think district attorneys are recognizing that their role is more than just getting convictions at any cost,” said Levin. “I think that’s a pretty recent development and certainly a very welcome one.” Prosecutors sometimes use bail to “effectively administer a punishment before a person has been found guilty,” Levin said. “Bail decisions and pretrial conditions are not supposed to be punishment,” he said. “They’re supposed to be used to guarantee the person is going to appear.”
There are other ways to make sure someone appears in court, Levin said, such as electronic monitoring or a reminder system that texts the person when a court date is near.
Decisions like Ryan’s could result in more trials, Levin said, because some defendants who would have considered pleading guilty may not feel the need to do that now, because they won’t be sitting in jail.
Some states have already moved away from using bail in criminal cases, including New Jersey, Alaska, and New Mexico, Levin said.
“The problem with the money bail system is it leads to a number of low-risk people who, if they don’t have money, end up languishing in jail at huge cost to the taxpayer,” he said.
Ryan said her office prosecutes roughly 200 cases of low-level nonviolent offenses a week. The policy of not asking for bail in such cases began about six months ago, a change prosecutors made slowly. They wanted to see if offenders who were not asked to pay bail would reappear. “We have not seen a significant change in the number of people who came back,” Ryan said.
Defendants caught with small quantities of drugs, including serious narcotics like heroin and fentanyl, would not have bail imposed under the new practice. Offenders caught with large amounts of drugs and suspected of dealing would need to pay bail, Ryan said.
People charged with crimes such as domestic assault, sexual assault, and illegal gun possession would also still face bail requests, said Ryan, who is up for reelection in September.
Her challenger, Donna Patalano, a former Suffolk prosecutor, called Ryan’s move a “band-aid” solution. She said that from 2013 to 2015 the rate of those incarcerated before trial in Middlesex increased 110 percent, even as the arrest rate fell. Ryan took office in 2013.
“What Middlesex needs is culture change and a thoughtful, comprehensive approach to reform that just isn’t happening right now,” Patalano said.
Patalano said Ryan’s office does not release data on bail requests, which makes it difficult to know if there are inequities in the treatment of defendants.
“We need to increase transparency, to collect and release data on bail requests,” she said. “That’s the only way to ensure the requests are fair and equitable across the Commonwealth.”