State Commission Recommends Keeping Cash Bail In Massachusetts, At Least For Now

While several other states have abolished cash bail for criminal defendants, Massachusetts is likely to hold onto the practice, based on new recommendations from the state legislature’s special commission on bail.

The 17-member commission decided it would be premature to end cash bail before seeing whether recent legislative reforms and a major court decision on bail can effect change.

The Supreme Judicial Court ruled two years ago that judges must consider a defendant’s finances before setting bail and explain the reasoning if the amount is clearly unaffordable. That ruling was codified in the state’s new criminal justice law passed in 2018.

An analysis of 300,000 criminal cases between March 2016 and January 2019 found a small decrease in the percentages of defendants being held on bail. Since the SJC decision, district court judges in those cases have ordered 6.9 percent of defendants held on bail, down from 7.8 percent before that decision.

“We're still in a very new place in the Commonwealth post-criminal justice reform,” said Shira Diner, a defense attorney who served on the commission. “What we have may be sufficient to eliminate the problem of people being held because they're poor. We just have to wait and see.”

Atara Rich-Shea, who heads up the Massachusetts Bail Fund that helps bail out people held on bail of less than $500, welcomed the commission’s decision not to recommend the use of risk assessment tools in making bail decisions.

The report concluded that such tools carry a high risk of racial bias.

But Rich-Shea said the report also pointed to the need for more change.

“The culture shift we were pushing for with legal decisions and legislation action did not happen in the courts,” she said.

State Sen. Cindy Friedman (D-Arlington), the commission co-chairperson, said more work remains to be done, and she is hoping that the legislature will renew the bail commission.

“There’s a lot of interest in looking at the whole bail magistrate [system] and how bail is delivered when it’s not delivered in court. It’s a situation I am very uncomfortable with,” she said.