New research, released as part of a project of the Program in Criminal Justice Policy and Management (PCJ) at Harvard Kennedy School’s Malcolm Wiener Center for Social Policy, reveals that the Criminal Justice Reform Act, enacted seven years ago in Massachusetts, has positively affected pretrial defendants, yet most of those benefitting—almost the only ones benefitting, according to the study—are white.
The Supreme Judicial Court of Massachusetts the Supreme Judicial Court of Massachusetts adopted a court decision, which was expanded upon in landmark legislation, that was intended to remove the wealth barrier and reduce the incarceration rates of people who are legally presumed innocent but who simply couldn’t afford bail.
The court decision and the bill required judges to consider the financial circumstances of defendants before imposing cash bail, but the HKS research shows racial disparities still exist.
Katy Naples-Mitchell, program director of the PCJ, Ali Mirza MPP 2024, and Isabella Jorgensen MPP 2022, both former research assistants at PCJ and the roundtable, are the authors of the report titled Understanding Racial Disparities in the Massachusetts Pretrial System. It is the fourth publication to come out of the Roundtable on Racial Disparities in Massachusetts Criminal Courts, which officially ended its work in 2024.
The report, said the authors, is intended to bring attention to the “longstanding and growing racial disparities in pretrial detention” and identify better data designed to remedy the disparities.
“Our most significant finding is that the reforms that were adopted seven years ago did nothing to improve racial disparities and, in fact, seem to have exacerbated them,” said Naples-Mitchell.
Seeing data that showed the jail population in MA has fallen since 2017, but almost exclusively among white people, the authors wanted to find the reasons why. “We wanted to study whether efforts to consider one’s ability to pay in setting bail and to shrink pretrial detention in Massachusetts reduced racial disparities and how to design a system less likely to produce such glaring racial disparities and significant harms,” said Naples-Mitchell.
The falling jail population is a trend in the criminal legal system in Massachusetts. Studies conducted in 2024 by MassINC Boston Indicators analyzing criminal data before and after the passage of the Criminal Justice Reform Act found crime rates fell during that period. “The decrease in pretrial detention,” the authors noted, “may result in part from a decreasing overall criminal caseload.”
But given the socioeconomic and racial wealth disparities documented in MA, posting bail for legally presumed innocent detainees unequally burdens people of color.
“The reforms we examined should have resulted in cash bail being set less often in favor of more releases, with the biggest effect on low-income communities of color,” noted Naples-Mitchell. “But instead, we found that white people were the biggest, and nearly only, beneficiaries of pretrial reform over the last seven years, with a dramatic 40% drop in the population of white people in jail.”
“Our most significant finding is that the reforms that were adopted seven years ago did nothing to improve racial disparities and, in fact, seem to have exacerbated them.”
The report identified five main areas of reform for the bail system in Massachusetts:
- The reliance on cash bail,
- The continued use of unaffordable bail,
- The lack of procedural protections for people who have bail set,
- The burdensome after hours bail system, and
- Other sources of pretrial detention (in particular, dangerousness holds, bail revocation, probation detainers, and warrants).
The authors concluded that by “thinking holistically” and reducing all sources of pretrial detention, the Commonwealth can move away from a two-tiered system of justice that continues to favor White and wealthier Americans.
“The goal of this report is to be a blueprint for evidence-based reforms that policymakers and advocates can carry forward without delay,” said Naples-Mitchell. “One of our global takeaways is that best intentions are not enough to ensure that policy is implemented in a racially equitable way.”
She notes that decades of studies have explored, in detail, the vast harms of bail and pretrial detention and have found that bail does not even do what it was historically designed to do: bring people back to court. “Researchers are also exploring positive interventions, like text message reminders about court dates, which have been shown to bring people back to court at higher rates.”
The hope, said Naples-Mitchell, is that “this blueprint can inspire action as well as encourage the state to produce additional data for further study.”
Sandra Susan Smith, the Daniel and Florence Guggenheim Professor of Criminal Justice and faculty director of the PCJ, says the real hope is that the criminal legal system does not move backwards. “How much ground might we lose because of the current political climate, and what will it take to recover what has been lost when the pendulum swings back?” asked Smith.
As for the future of the work that the roundtable produced, Smith says much of the three-year program will be incorporated in the courses at HKS. Additionally, the PCJ speaker series will feature other events on topics such as criminal legal systems in authoritarian states and corporate crime. “Since the pandemic, so much media attention has been focused on petty crimes like shoplifting, which has led to another punitive turn (tough-on-people policies),” said Smith.
Yet, Smith noted, corporate crime creates “exponentially greater” social, economic, and political harm to individuals, families, and communities far more than the petty crime that the media reports daily: “By spotlighting this often-ignored issue, we hope to bring much needed attention to a set of forces that do so much harm, and perhaps the most harm, to public safety.”
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Photograph by APCortizasJr/iStock