Summary
The use of cash bail has been recurrently critiqued as one of the critical civil rights issues of this century. For people who are legally presumed innocent, cash bail produces wealth-based detention and a two-tiered system of justice: freedom for those with financial means, and detention in conditions often indistinguishable from carceral punishment for those without. Eight years have passed since the Massachusetts state high court, the Supreme Judicial Court, first required judges to consider defendants’ financial circumstances when deciding whether to impose cash bail as a condition of release, and seven years have passed since the state legislature adopted omnibus criminal justice reform legislation that sought to, among other reforms, reduce stark racial disparities in incarceration, reduce the criminal system’s overall footprint, and expand and study continued bail reform. As part of the Roundtable on Racial Disparities in Massachusetts Criminal Courts, a project of the Program in Criminal Justice Policy and Management of the Harvard Kennedy School Malcolm Wiener Center for Social Policy, this research brief endeavors to examine the effects of those limited reforms and zoom out to consider the continuing sources, and consequences, of racial disparities in pretrial release and detention across the Commonwealth.
The research brief begins with an overview of bail and pretrial detention in Massachusetts, providing historical grounding for demographic patterns of release and detention before, during the implementation of, and after the reforms initiated by the Supreme Judicial Court in the 2017 case Commonwealth v. Brangan and the legislature in its 2018 Criminal Justice Reform Act. Using data available from the Executive Office of Public Safety and Security, we take a deep dive into understanding trends in pretrial detention from 2017 to the end of 2023.
Our research provides suggestive evidence that White people have been the biggest, and nearly only, beneficiaries of the limited pretrial reforms adopted since 2017. We find that as reforms were implemented, the number and proportion of White people in the Commonwealth’s jails declined dramatically by 40%. At the same time, the number of Black people in jail declined very slightly (by about 3%), and the number of Hispanic people in jail increased by about 5.5% (adjusted for a data quality issue described in the report).
To better understand why this happened, we next examined two prominent sources of pretrial detention using data from the Massachusetts Trial Court: cash bail and prosecutors’ requests to hold people without bail because they are too dangerous to release pretrial. We find that racial disparities continue to pervade pretrial detention and release decision-making in these categories, even controlling for factors like the severity of criminal charges faced and whether the criminal accusation carries a potential penalty of a mandatory minimum sentence.
We also find gaps and inconsistencies in available data about criminal system decision points. For example, a 2016 study by the Council on State Governments Justice Center had identified pretrial holds (including outstanding warrants, probation detainers, and bail revocation) as larger sources of pretrial detention than dangerousness findings. The state, however, does not presently produce datasets on these sources of pretrial detention.
Nevertheless, while the Commonwealth would benefit from greater data transparency on other sources of pretrial detention, and on pretrial supervision, these gaps in knowledge should not prevent the adoption of evidence-based reforms that have begun to percolate across the country. Study after study of cash bail reforms in states as diverse as Texas, Illinois, New York, and New Jersey shows that curtailing the use of cash bail has net positive outcomes, including fiscal and public safety benefits as well as enormous social benefits for families affected by the criminal system. To that end, this research brief ends with a series of policy recommendations:
- Eliminate cash bail for some or all cases or for certain categories of offenses.
- Prohibit the use of unaffordable bail as a mechanism of detention to ensure return to court.
- Automatically review bail amounts for everyone who remains stuck in jail 24 hours after their bail is set.
- Improve the current system of after-hours bail assessment, including by replacing the bail magistrate system with a judge rotation schedule.
- Study and reform other sources of pretrial detention, including by reducing the issuance of warrants for non-appearance in court by creating a centralized jail look-up system.
The vast majority of people prosecuted for crimes in the Commonwealth are indigent. Therefore, for many accused people, posting any amount of monetary bail can be nearly impossible. Given the socioeconomic and racial wealth disparities throughout Massachusetts, the Commonwealth’s current system of release and detention disparately burdens people of color. This affects entire families, who must scrape together the funds to pay bail for their detained loved ones. The Commonwealth’s pretrial release system is behind the times, and policymakers should follow the emerging evidence base in jurisdictions across the country and undertake significant reforms to rein in the use of restrictive pretrial detention, cash bail, and conditions of release in Massachusetts.