IN A MOVE that reform advocates call an alarming turn away from the effort to reduce the role of bail in the criminal justice system — a movement her own campaign embraced two years ago — Suffolk County District Attorney Rachael Rollins’s office is seeking a dramatic increase in bail for a defendant after learning that the Massachusetts Bail Fund was prepared to post the money to free him.
Barry Twomey, a 58-year-old homeless Boston man, was arraigned on July 7 on armed robbery charges after he was arrested on July 2 at the South Bay Mall, where two robberies occurred. Prosecutors asked that he be held on $5,000 bail, an amount Boston Municipal Court Judge Eleanor Sinnott agreed to. But when the district attorney’s office learned that the Bail Fund planned to post the $5,000, it filed a request on August 14 for a new hearing at which prosecutors want the court to order a 10-fold increase in Twomey’s bail to $50,000.
The nonprofit Bail Fund raises money to free indigent defendants who are awaiting trial, arguing that the legal system discriminates against poor people, who often remain behind bars for months before their cases are heard, while those from more well-off backgrounds have family that can post bail and have them released.
In the motion filed earlier this month, the DA’s office argues that Bail Fund involvement constitutes a “changed circumstance” that permits prosecutors to seek an adjustment in Twomey’s bail.
Twomey’s court-appointed lawyer, Patrick Gioia, said he was shocked by the motion and plans to vigorously challenge the argument for increasing his client’s bail. “It’s not a changed circumstance when someone is able to post the bail and that’s the bail the Commonwealth wanted it to be,” Gioia said.
A hearing on the DA’s motion is scheduled for September 3.
The head of the state office that oversees legal representation for indigent defendants decried the DA’s motion and said it underscores a longstanding criticism of the system — that prosecutors are using bail to keep poor defendants from getting out of jail while awaiting trial.
“Seeking to increase a homeless person’s bail by ten times is a disappointing and unprecedented maneuver that shows how bail continues to be unconstitutionally used as pretrial punishment,” said Anthony Benedetti, chief counsel for the Committee for Public Counsel Services. “Bail disproportionately affects the poor and people of color, and the Bail Fund appropriately seeks to give those with the least the same opportunity as wealthy people who are pulled into the criminal legal system. We stand ready and willing to fight any maneuvers by any prosecutor who seeks to intentionally make bail unaffordable.”
The stated function of bail is to “reasonably assure” a defendant’s appearance in court to face charges at trial, the DA’s office wrote in its filing. But prosecutors argue that the emergence of the Bail Fund changes the equation. “Bail posted by the defendant or a party known to the defendant provides a direct or indirect incentive for a defendant to return to court,” the motion says. “That same amount of bail posted by a bail fund offers no incentive for a defendant to return to court.”
Lawyers involved in bail reform efforts say there is no firm evidence that defendants released through payments from nonprofit bail funds, which only emerged in various states a few years ago, default at higher rates than other defendants. The Massachusetts Bail Fund’s executive director, Atara Rich-Shea, said it has secured the release of more than 3,700 defendants since being launched in 2013, with only 3 percent of those people defaulting.
“It’s unclear to me how a court could get involved in who is and who is not the right person to pay the money that stands between someone and their freedom,” said Matthew Segal, legal director at the American Civil Liberties Union of Massachusetts. “Our whole system is based on the idea that if you can come up with this money, you get to be free.”
Gioia said a defendant might not like — or feel any particular obligation to — a rich uncle who decides nonetheless to post his bail. Or a person could be bailed out by a girlfriend or boyfriend only to have the relationship end badly while they’re awaiting trial, he said. “Once you open up that door, where does it end?” Gioia said of the DA’s effort to have the court consider a defendant’s “relationship to the surety.”
Rollins’s office did not respond to multiple calls and emails seeking comment on the bail motion.
The Mass. Bail Fund is one of a number of such organizations that have sprung up across the country in recent years as part of broad-based reform efforts to address the unequal justice advocates say the system metes out to the poor and to people of color.
On any given day, nearly half a million people who have not been convicted of a crime are held in US jails, according to a report issued last year by the Criminal Justice Policy Program at Harvard Law School. The widespread use of cash bail payments to secure the release of defendants before trial, the report says, “discriminates based on wealth, exacerbates racial disparities, results in over-incarceration, and imposes unnecessary costs on individuals and society at large.”
The Mass. Bail Fund had been posting bail for defendants generally charged with lower-level offenses who were being held on amounts up to $500. But the surge of public attention to police brutality and racism following the police killing of George Floyd in late May prompted a huge increase in donations to the organization, which has begun posting bail for defendants held on much higher amounts.
The Bail Fund came in for harsh criticism earlier this month when it posted bail for a man charged with rape who was arrested weeks after his release on a new charge of rape and allegedly trying to strangle the victim. Shawn McClinton, 39, is a Level 3 sex offender who had two prior rape convictions.
Rollins slammed the Bail Fund for posting the $15,000 bail for McClinton’s release, calling it “the act of a coward.” Attorney General Maura Healey told the Boston Globe the move was “dangerous and irresponsible.”
Defenders of the Bail Fund called the criticism misplaced and said that if prosecutors thought McClinton posed a public safety risk they should have sought a dangerousness hearing, a legal avenue through which a defendant can be held without bail before trial. Rollins argued that such hearings often re-traumatize victims who must testify, but attorneys say many such hearings are conducted without relying on victim testimony.
In Twomey’s case, said Gioia, his court-appointed lawyer, prosecutors could have sought a dangerousness hearing if they thought he should be held without bail. Instead, he said, they took a shortcut that they thought would keep a penniless defendant confined until his trial by seeking $5,000 bail.
“$5,000 was as good as asking for $500,000,” Gioia said. But when the Bail Fund stepped forward, prosecutors suddenly “said they want a redo.”
It’s unclear whether Rollins’s office plans to routinely seek higher bail when it learns the Bail Fund is prepared to secure a defendant’s release.
Gioia said any effort to short-circuit the work of the Bail Fund by raising bail on those it might help would set off a dangerous “arms race” in the system.
Rollins was elected two years ago on a strong reform platform, joining a wave of DAs recently elected around the country who have vowed to radically remake the criminal justice system. “We must remove the disadvantages of poverty and lower incomes,” her campaign platform said. “The Rollins Administration will move towards eliminating cash bail for individuals who do not pose a flight risk.”
Twomey, who has a record of four previous robbery convictions, could face a mandatory life sentence if convicted of masked armed robbery as a habitual offender. The DA’s motion for higher bail said that potential sentence makes him a flight risk, but Gioia said Twomey presents little risk of fleeing since he has no resources to leave the area. Though he’s charged with armed robbery because cashiers at the two South Bay Mall businesses that were held up said he claimed to have a gun, no weapon was found on Twomey when he was arrested in the shopping center parking lot.
Gioia said Twomey “may have mental health issues” and “he may have been under the influence of alcohol” when arrested, pointing out that he was found near the scene of the alleged crimes.
“This motion is an attack on poverty not on the Bail Fund,” said Rich-Shea, the fund’s executive director. “The intention of bail is that it is supposed to be paid and all people, not just rich people, should be free before trial. These attacks on posting bail, by electeds who campaigned on a promise to end cash bail, show that this is a lie. Their intention is that people be incarcerated.”
Rich-Shea said that “is universally the way bail is used, it’s just that with this motion, the DA said the quiet part out loud.”