In the United States Bill of Rights, amendment eight states that "excessive bail shall not be required", but what constitutes ‘excessive’ is a question lawmakers and advocates are raising in Massachusetts.
Some people sit in jail, not yet convicted of the crimes they're accused of, for months simply because they can't afford a few hundred dollars in bail.
Some believe the current bail system creates inequities; punishing the poor, while allowing dangerous criminals with money to go free.
The sole purpose of bail is to make sure someone arrested for a crime shows up to court, but people end up slipping through the cracks and that has consequences.
Police said Jorge Zambrano murdered Officer Ronald Tarentino in Auburn on May 22 during a routine traffic stop. Zambrano was driving with a suspended license. Three months earlier, he stood before a judge charged with assault and battery on a police officer and stated during his arrest "he was not going back" to jail.
Zambrano had a long criminal history and was on probation for three other cases. He was released on $500 bail. After ambushing Tarentino, Zambrano was eventually killed in a shoot-out with state police.
A review by the Trial Courts found the no faults with the court's handling of the Zambrano cases, but recommended adopting "risk assessment" instruments for the courts to "evaluate how re-offense and dangerousness are assessed in criminal cases".
These instruments are being used by other states to evaluate risk factors related to holding or releasing defendants. They would use analytics that would create a score for the defendant that the judge and prosecutors can use to help determine whether someone is a danger or flight risk.
State Sen. William Brownsberger, chair of the state judiciary committee, says that could be an uphill battle in Massachusetts because of limitations to hold people. Brownsberger said that courts can only hold someone 60 days in the Commonwealth without bail.
"It would require a constitutional amendment which would mean a vote of the people. So it's a steep climb," said Brownsberger.
Risk assessment is just one tool that a growing number of states are using to reform their bail systems.
Washington D.C. reformed their bail system back in 1992. The city releases the majority of their defendants into supervision programs and claim that 90 percent made their scheduled court appearance. It also claims to save $398 million every year avoiding pre-trial incarceration. It's something lawmakers believe is needed in Massachusetts.
"This is a way to look at bail completely different and use the science and the data that's out there and say who's actually going to show up for trial and who's not," said Tom Sannicandro, the retiring Democratic state representative out of Ashland.
He supports Senate Bill 802, authored by State Senator Ken Donnelley (D) of Arlington. The bill would completely overhaul the pre-trial system.
The state spends $1.1 billion a year on incarceration. Half of the prison population in county jails are people awaiting trial, meaning they have yet to be convicted of the crimes they're accused of.
The Massachusetts prison population has actually been on the decline since 1994, where the national prison population has seen steady increases. The state also has one of the lowest incarceration rates in the country. Still, most of the prisons and jails in the state operate at capacity.
According to a study done by the Council of State Governments, defendants wait on average for two months in pre-trial incarceration before they are released. It costs taxpayers $112 a day per inmate. That's an average cost of over $6,000 for each stay.
For inmates being held on only a few hundred dollars bail, the math doesn’t add up. Sannicandro believes by taking a smarter approach to criminal justice reform, we will see significant declines in prison overpopulation.
"I think we would be incarcerating 25 percent less people," Sannicandro said.
Wellesley professor Erika Kates has studied this issue for years and says pre-trial incarceration can be particularly consequential for women.
“Tremendous anxiety about their children, their apartment, if they leave their apartment and public houses, if they're not paying rent, they can be evicted. If they're evicted, they can lose everything,” said Kates.
Meghann Perry was struggling with addiction and was arrested for selling heroin to an undercover informant in Maine. At five months pregnant, she was sent to jail to await trial.
"I felt really lost, I didn't understand how I got there. It's just such a powerful thing to be in jail," said Perry. "I felt really, really helpless and powerless."
Through Maine pre-trial services, Perry was released under special supervision. She gave birth to her daughter in a hospital and was provided drug treatment through the program.
"During that time I was able to piece back a life of some kind. By being given that chance, it helped me have hope." Perry said.
When she moved back to Massachusetts and started working with struggling addicts, she realized they didn't have access to the same services outside of jail.
“The Massachusetts criminal justice system is antiquated compared to many other states, Maine included. The fact that we don't have any pretrial options here I was astounded, ” Perry said.
Sannicandro said under their bill pre-trial services would be offered to low-risk offenders through the department of probation. And, he said it's a lot cheaper than pre-trial incarceration, saving taxpayers in the long run.
"If you're a taxpayer in Massachusetts, you're spending $100 million dollars that you don't need to spend on this system that's not fair," said Sannicandro
The road to recovery was long for Perry. She's been sober for five years. She thinks more people deserve the same opportunities she had.
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