MASSACHUSETTS HIGHEST COURT UPHOLDS UNJUST SYSTEM OF CASH BAIL
Last week, the Massachusetts Bail Fund posted our lowest bail yet; $25. On Friday August 25, the Supreme Judicial Court of Massachusetts (SJC) decided the case of Brangan v. Commonwealth. The justices order judges to consider a person’s ability to pay when determining bail and they order judges to explain, either in writing or orally, their reasons for setting a cash bail that is more than the person can afford.
The Massachusetts Bail Fund (MBF) appreciates the effort of the attorneys who worked to get the SJC to acknowledge how the unjust system of cash bail plagues our community. This case provides defense attorneys with significant advocacy tools to push judges and district attorneys in the direction of release rather than cash bail. We sincerely hope that this case will result in more people coming home rather than staying in jail.
Yet we are profoundly disappointed that the SJC did not do more to alleviate the inequitable and inhumane treatment of poor and working-class people accused of crime. Ultimately, the SJC has affirmed the idea that it is reasonable for a judge to set a cash bail they know a defendant can’t afford -- as long as there are other factors which the judge believes indicate that the defendant may not appear. When people are in pre-trial detention they risk losing their jobs, homes, custody of their children, healthcare, and more. We consider this punishment.
What the MBF knows is that we can go beyond the Brangan decision; we can abolish cash bail. The MBF has posted over 600 bails, and 98% of our clients have come to their court dates. More than 50% of our clients have their cases dismissed, which means that if we didn’t post their bail they would have spent months or years in jails for crimes they could not be convicted of. We also know that Black and Brown people are more likely to be held on bail than white people, making cash bail part of the structure of institutionalized racism in the Commonwealth and across the country.
If people need help coming to court, there are community solutions – like ride sharing, text updates, flexible court time, and childcare -- which will allow people to do what they want to do: address their legal issues and move on with their lives. There are also additional options to avoid incarceration like pre-arrest and pre-trial diversion. Prosecutors can also recommend that people are released on recognizance and move to dismiss minor offenses altogether.
The unjust system of cash bail cannot be undone by a single SJC decision. Communities of color are over-policed, district attorneys knowingly ask for bails those people cannot afford, and judges confirm those bails under a pretense of “risk of flight.” Holding someone in jail for the duration of their case does ensure they come to court – but it also coerces them to plead guilty to charges they would otherwise fight. It ensures that people lose their homes, their families, and their well-being. We have a shared responsibility to stand up and demand that our judges, elected district attorneys, and elected sheriffs end the unjust and inequitable practice of cash bail.
Until pre-trial detention is abolished, The Massachusetts Bail Fund will continue posting bail for people who cannot afford it so that they can be free to fight their case. As an agency, we are committed to monitoring the implementation of the Brangan decision and holding Judges and District attorneys accountable. The Massachusetts Bail Fund has started court a watch program to monitor the effects of this decision. We watched a session of the Boston Municipal Court where the judge did not know the name of this decision, did not issue written or oral findings, considered dangerousness as argued by the district attorney, and declined to lower the bail in the cases we witnessed where a reduction in bail was requested.
We also reopened referrals on September 1st, and in one day we received 12 referrals for people held on bails of $500 or less. Since then, we have received over 36 applications for help and posted our lowest bail yet, at $25.00.
We bought someone’s freedom for less than a tank of gas.
The Massachusetts Bail Fund is committed to holding judges and district attorneys accountable. We are committed to freeing people from cages. We are committed to posting every bail we can. Yet we cannot do this without money. Please give as generously as you can. Every dollar you give to the bail fund is used to post bail for someone who would otherwise remain in a cage.
