Four months after Massachusetts lawmakers enacted a sweeping criminal justice bill that requires judges to consider a person’s financial circumstances before setting bail, poor defendants are still being held in custody on amounts as low as $25, reform advocates say.
Volunteers for civil rights groups, including the American Civil Liberties Union of Massachusetts, have fanned out to courtrooms across the state to determine whether judges were following the new law. They found that low-income defendants charged with minor crimes continue to receive bail without regard to their ability to pay, said Rahsaan Hall, director of the ACLU’s racial justice program.
As other states move to eliminate cash bail for certain offenses, the practice has become a central issue in district attorney races in Suffolk and Middlesex counties, with advocates voicing frustration over the slow pace of change and calling on prosecutors to take on the matter themselves.
“We have a bail crisis,” said Atara Rich-Shea, director of operations at Massachusetts Bail Fund, a nonprofit organization that posts bail of $500 or less for poor defendants. “The district attorneys are really the last place where change can happen.”
Candidates for district attorney in both counties generally agree the cash bail system contributes to disproportionate incarceration of minorities and the poor, but their plans for reforms vary widely.
In Suffolk, five candidates are seeking the Democratic nomination. One of them, Rachael Rollins, who was a federal prosecutor, has listed on her website offenses that would not require bail or even prosecution, from trespassing to breaking and entering, assuming the property was vacant or the defendant was seeking refuge.
“I will implement a transparent policy where the default is to decline prosecuting certain low-level, nonviolent crimes,” Rollins said in a statement.
State Representative Evandro Carvalho, a former Suffolk prosecutor, said he would also repeal cash bail for “nonviolent misdemeanors and felonies,” but did not provide a list of specific charges.
Shannon McAuliffe, a criminal defense attorney, said she would eventually move to eliminate all bail requests — even for violent crimes — and instead train prosecutors to seek dangerousness hearings, which are held to determine whether defendants pose a threat to public safety based on evidence presented by prosecutors to a judge.
As it stands, prosecutors must depend on a money-driven system that allows those who can afford bail to go free while those who cannot are incarcerated for months or even years awaiting trial, she said.
“Money and ability to pay was never meant to address dangerousness,” McAuliffe said. “Being able to pay a $250,000 bail doesn’t make a defendant less dangerous or our communities safer.”
Suffolk DA candidate Linda Champion, a former prosecutor, said she opposes the repeal of cash bail as a stopgap measure that would impede broader reform.
Even without bail restrictions, Champion said, many defendants are detained until trial for failing to abide by release conditions, such as remaining drug-free or showing up for weekly meetings with court officials. Such conditions are especially difficult for transient defendants with mental illness and substance use disorders, Champion said.
“The more practical solution is stop prosecuting crimes of poverty, stop prosecuting a vulnerable population, like substance users,” said Champion, who has proposed clearing criminal dockets of all nonviolent misdemeanors.
Greg Henning, a Suffolk prosecutor, said he would only seek bail in cases where a prosecutor would seek jail time if there is a conviction. If elected, he would provide prosecutors a list of charges that wouldn’t require bail, he said.
Henning said all district attorneys have to comply with the state’s new bail requirements, which followed a Supreme Judicial Court ruling in 2017 that judges cannot ignore a defendant’s inability to make bail. Judges who set an unaffordable bail must justify their decision in writing.
“I feel like that decision is a huge step forward,”’ Henning said.
But Hall said it appears some judges are not following the new law. He did not identify specific judges or courts, saying information collected by volunteers still needs to be analyzed.
A spokeswoman for the Massachusetts Trial Court declined to comment.
Ideally, district attorneys would stop seeking bail at all, said Hall, a former Suffolk prosecutor.
“We should be able to develop ways to increase the likelihood that people will return to court . . . but also keep the public the safe that don’t overwhelmingly rely on putting people in cages before they’ve even been found guilty,” he said.
In Middlesex, District Attorney Marian Ryan, who is running against Donna Patalano, a former prosecutor and defense attorney, announced in January that prosecutors in her office were no longer requesting bail for low-level, nonviolent offenses.
So far this year, prosecutors in her office have sought bail in less than 22 percent of Superior and District Court cases, she said.
The office did not track bail requests in 2017, she said.
Some advocates are skeptical of Ryan’s efforts. The Massachusetts Bail Fund estimates it spent nearly $15,000 to release people held in Middlesex jails between January and August, $1,000 more than during a similar time frame last year.
“That’s not a culture shift,” said Rich-Shea. “We’re seeing no change.”
Ryan’s office noted that judges often make their own bail decisions, citing 116 cases so far this year in which judges imposed a bail of $500 or less, even though prosecutors did not request any bail.
Randy Gioia, deputy chief counsel for Committee for Public Counsel Services, the state’s public defender’s office, said its lawyers have reported that in Middlesex courts such as Lowell and Ayer, prosecutors are generally not seeking bail for low-level misdemeanors.
“That’s how it should be,” Gioia said.
Patalano said she would seek bail only in cases where a person has a history of failing to show up for court or was accused of a violent crime in which there was a victim.
She said she would track bail requests by race and gender and post findings quarterly on the office’s website.
When judges want to set bail of their own accord, Patalano said prosecutors should be trained to remind the court that the cost of incarceration in Middlesex can reach as high as $265 a day.
“Prosecutors could encourage judges not to set bail by reminding them that the cost of incarcerating a person a day will be much higher than the bail set for the person,” Patalano said.