Alternatives to bail won’t just reduce overcrowding in jails: they will create a more just justice system.
There is a bill pending in the Massachusetts House Committee on Ways and Means to build a bail jail in Middlesex County. Led by Representative Kay Khan (D-Newton), H.1434 proposes for a new facility for women charged of a crime and awaiting trial. This jail is not for convicted prisoners, but for women who are charged with violent and nonviolent crimes and cannot afford bail.
Three states away in New Jersey, residents are preparing to vote on Ballot Question Number 1, a bail reform legislation, in this November’s election. Signed by Governor Chris Christie (R-NJ), this policy states that dangerous suspects can be held in jail without bail, while non-dangerous suspects can be released through alternatives to bail. Both of these states attempt to tackle the overcrowding issue in jails, but New Jersey’s legislation will alleviate this issue through a long-term and humanizing solution. New Jersey has shown that bail reform is a bipartisan issue that can only be solved through intentional policy.
Massachusetts can learn from New Jersey’s responsible approach. There has been a growth of pre-trial detention in the state. From 2005 to 2014, pre-trial detainees in Massachusetts Department of Correction custody increased by 23 percent. This growth of pre-trial detention significantly impacts women. 34 percent of total female inmates in Massachusetts’s jurisdiction this year are awaiting trial, but only 3 percent of total male inmates. Most women awaiting trial in Massachusetts are not able to make bail (80 percent cannot make bail of $2,000 or less and a third cannot make $500 or less). Many need services – not to be in jails. Two-thirds of the women in Massachusetts state prison have a diagnosed mental illness and half of them use psychotropic drugs. Prisons, such as the bail jail proposed in Middlesex County, can exacerbate mental illness when the women truly only need proper substance abuse and mental health treatments.
A study by the Pretrial Justice Institute shows that judges are inclined to assign harsher punishments to pretrial detainees than to those who are able to make bail. Thus, a person’s credibility is determined by money, no matter the verdict. Those who can afford to pay their bail do not undergo the ramifications of being in jail. They are able to continue supporting their families or continue their education. If they cannot afford bail, however, they have to go through the obstacles of pausing their lives and are more likely to commit recidivism; pretrial detainees are six times more likely to return to jail because of the challenges they face once released.
States such as Colorado, Delaware, Kentucky, Maine, Ohio, Virginia, and possibly soon New Jersey have reformed their pretrial systems. Massachusetts needs to join them. Facilities across the state of Massachusetts are overcrowded by up to 155 percent, and this could be alleviated by using electronic monitoring as an alternative to incarceration. New Jersey’s proposed legislation does this by having bail depend on risk and not whether someone can afford to pay to get out of jail. A judge will only present bail as a last resort if electronic monitoring might not assure the defendant’s appearance at their trial or if he or she is believed to pose a threat to public safety.
Massachusetts has the political will to take the same path as New Jersey and reform its system. Through legislation similar to New Jersey’s bail reform, pretrial detainees charged with nonviolent crimes should be enrolled in an electronic monitoring program instead of entering a facility. There is a high financial cost for the state and social cost for defendants of having people await trials in jails. An electronic monitoring program is cheaper on both fronts. Defendants would have the ability to return to their lives fully and freely until they are tried. The idea of innocent until proven guilty is currently obsolete in Massachusetts because of the bail system, but it can be restored through reform that ensures liberty prior to trials.
Jessica Morris is the Roosevelt Institute | Campus Network Senior Fellow for Equal Justice. She studies politics and gender studies at Mount Holyoke College.