The stakes are far too high to justify such detention. During the pandemic, incarceration puts a person’s life in serious danger.
Right now, in Massachusetts as elsewhere, anyone charged with a crime cannot have a trial. The courts are closed to all but emergency matters. And a jury trial requires more than 10 people, so any trial would violate the state ban on such gatherings. This means that defendants cannot have their day in court. For anyone held in pretrial custody—about half of all people in Massachusetts jails, totaling nearly 5,000 people—the right to a speedy trial has turned into indefinite detention.
In Massachusetts, two different laws allow the government to hold people in jail before their trial for two different reasons. First, the so-called “dangerousness” statute—true to its name—allows pretrial detention if the government can prove that the defendant is a danger to the community or to a specific person.
We also have a separate system of cash bail. The purpose of bail, as our Supreme Judicial Court has explained again and again, is not to hold someone because they are dangerous. Instead, bail is designed only to make sure that the defendant comes to court. If you think about it, it would make little sense to use bail to hold someone who’s dangerous: no amount of money should free a truly dangerous person. Bail just creates a financial incentive to come to court—if you do, you get your money back. But the amount of money someone can afford has nothing to do with whether that person is dangerous.
By its nature, cash bail disproportionately burdens the poor. As the SJC has recognized, “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 earthy belongings can be carried in a cart.” It is for this reason (among others) that many activists and politicians have long pushed for the elimination of bail altogether.
Wealth-based detention also has unavoidable racial implications. In Greater Boston, for example, the median net worth of a white household is $247,500. For non-immigrant Black families, that number is $8.
Whatever you might think of cash bail under normal circumstances, holding presumptively innocent people indefinitely in close confinement during a pandemic—and doing so only because they are poor—is simply unjust. As a matter of law, people held on cash bail have not been alleged or found to be dangerous. They are only being held because they might have skipped court. But the ongoing suspension of the court system means that (a) there are no appearances for them to miss anyway, and (b) their case cannot reach its end, so their detention extends indefinitely too. Plus, it seems especially unfair to demand payment for someone’s liberty in a time of unprecedented economic dislocation.
Of course, some people held under the dangerousness statute, like the elderly or the medically compromised, could probably be released on certain conditions, such as GPS-monitored home confinement. These people did not get death sentences either. Indeed, they have not gotten any sentence: they are all still presumed innocent. But the elimination of bail is the easy, low-hanging fruit. How can we continue to hold people too poor to pay bail—who are by definition not dangerous—when the payment they cannot afford is designed to ensure they come to court dates that do not even exist?
The stakes are far too high to justify such detention. During the pandemic, incarceration puts a person’s life in serious danger. The rate of infection at Rikers Island in New York is seven times higher than the rest of the city. Cook County Jail in Chicago has generated the second-largest number of cases from a single source in the entire country. This is for obvious reasons. As many have written, prisoners cannot social distance, nor can they practice the vigilant hygiene necessary to avoid infection. Already, 250 prisoners and staff in Massachusetts jails and prisons have tested positive for COVID-19. With the exception of a number of nursing homes, there may be no more dangerous place in our state right now than the Massachusetts Treatment Center, a prison in Bridgewater. Of 51 people infected there, four men have already died. This won’t stop unless we stop it.
No one should die because they cannot afford their freedom. At this extraordinary time, holding people on cash bail is like issuing a potential death sentence without a trial. These people are all presumptively innocent; none have been found dangerous. Every single person held on cash bail should be released. And, going forward, no judge should hold someone on bail they cannot afford until the pandemic passes.
On March 24, the Committee for Public Counsel Services and the Massachusetts Association of Criminal Defense Lawyers filed a lawsuit seeking exactly that—the release of everyone held on a bail they could not afford. Last Friday, the SJC issued a ruling entitling just a subset of these people to presumptive release. And, when lower courts refused to release certain prisoners, the SJC ordered their release directly. The ruling was a fantastic start, but we have to go much further. Too many people have been left behind. And the filing of individual motions, one-by-one, will not save enough lives. This moment is far too urgent for a single-file line.
The rule should be simple—if you are not held because you are dangerous, you should be immediately released. There is no basis to hold people indefinitely on bails they cannot afford, to ensure they appear for court dates that do not exist. At least during this pandemic, let’s eliminate cash bail.
Attorney Nathanson has specialized in post-conviction criminal defense since 1997. He has also provided representation in trial-level cases as minor as trespassing and as serious as double-murder. He was a solo practitioner from 1997 until 2001, when he joined the Committee for Public Counsel Services as a staff attorney in the Criminal Appeals Unit of the Private Counsel Division. In 2005, he became the only public defender in the history of the Massachusetts public defender's office to win a case in the United States Supreme Court.
