By Katie Lannan
STATE HOUSE NEWS SERVICE
BOSTON — As state senators prepare to take up a bill this week that would overhaul the state’s bail system, one Massachusetts sheriff said he’s seeing positive signs from other states that have undertaken bail reform.
Middlesex County Sheriff Peter Koutoujian last week attended a Law Enforcement Leaders to Reduce Crime & Incarceration summit at the National Press Club in Washington, D.C., and returned armed with business cards from officials in Tennessee and New Jersey, whom he hopes to put in touch with lawmakers here.
Tennessee and New Jersey recently reformed their bail systems, and Koutoujian said law enforcement from those states could serve as useful resources for Massachusetts legislators mulling similar changes.
“They’ve had really good results, and the great thing was, the results they’re getting out of New Jersey are completely consistent — the numbers are almost identical — to the results they’re seeing out of Tennessee as well, which is interesting,” Koutoujian told the News Service. “It validates the numbers are consistent and real, basically.”
New Jersey’s bail reform — a move away from a cash-based system to one involving a tool to evaluate a defendant’s risk of fleeing or causing danger to the public — took effect on Jan. 1, 2017. By Aug. 31, the state court system there reported that the number of people in jail before a trial had dropped 15.6 percent since the year began, from 7,337 people to 6,195.
Of the 29,637 eligible defendants arrested from January through August 2017, 8 percent were released on recognizance, roughly 71 percent were ordered to participate in some form of a pretrial monitoring system, and 17.4 percent were placed in detention.
A major package of criminal justice reforms the Senate plans to debate on Thursday includes measures intended to address an August ruling by the Supreme Judicial Court that judges cannot set bail “higher than necessary to ensure the defendant’s appearance” and “that a judge may not consider a defendant’s alleged dangerousness in setting the amount of bail.”
The ruling came in a case filed by Jahmal Brangan, who was held at the Hampden County jail for more than three and a half years because he was unable to post the $40,000 bail after his 2014 armed robbery arrest.
“A bail that is set without any regard to whether a defendant is a pauper or a plutocrat runs the risk of being excessive and unfair,” Justice Geraldine Hines wrote in the decision shortly before retiring from the high court. “A $250 cash bail will have little impact on the well-to-do, for whom it is less than the cost of a night’s stay in a downtown Boston hotel, but it will probably result in detention for a homeless person whose entire earthly belongings can be carried in a cart.”
The bill (S 2185), according to a Senate Ways and Means summary, abolishes cash bail for juveniles and requires judges to consider a defendant’s ability to pay when setting bail for adults. Judges would be given additional options besides cash bail, including unsecured bonds and a wider range of pretrial conditions, and the bill would require that conditions imposed be the least restrictive necessary to ensure the defendant will appear in court.
Judges would be prohibited from setting bail so high “that the defendant represents, in good faith, that he or she cannot afford” it, except if the judge finds the risk of non-appearance is so great that no other conditions would ensure the defendant would come to court, and that the defendant is likely to be incarcerated if convicted. In such cases, the judge would have to orally or in writing explain those findings for the record.
The judge would also have to explain “why the commonwealth’s interest in the secured bond amount outweighs any likely adverse impact on the defendant’s employment, education, mental health treatment, substance or alcohol use treatment and primary caretaker responsibilities.”
The bill would also require the development and use of a risk assessment tool for bail determinations, and expand the ability of pretrial detention for defendants determined to be dangerous, according to the summary.
Whether the bail changes ultimately become law would depend on the level of support they receive in the Senate — where lawmakers filed 162 amendments to the bill — and in the House, where leaders have not yet specified what criminal justice reform measures they intend to pursue.
Rep. Claire Cronin, the House chair of the Judiciary Committee, has been meeting with representatives to discuss criminal justice, and House Speaker Robert DeLeo has enlisted former Supreme Judicial Court Chief Justice Roderick Ireland as an advisor.
In a letter to Cronin earlier this month, six members of the House Progressive Caucus — co-chairs Byron Rushing and Tricia Farley-Bouvier and Reps. Mary Keefe, David Linsky, Jay Livingstone and Jay Rogers — identified bail reform as one of their priorities.
“Instituting a risk-based approach to pretrial release detentions would allow persons who cannot afford money bail to avoid incarceration, losing employment, and having to find emergency childcare, all while saving the state money,” the letter said. “Massachusetts should focus the money spent on unnecessary incarceration for pre-trial individuals who pose little threat to public safety towards expanding programs that encourage an alternative route to incarceration like restorative justice or diversion programs.”