MASSACHUSETTS HAS positioned itself as a leader on a range of policy domains under attack by the Trump administration. But as a national conversation has arisen about cash bail and public safety, fueled by misinformation from the White House, Massachusetts is on the sidelines.  

At the same time, Massachusetts has been undergoing its own experiment with releasing people who would otherwise be detained pretrial this summer—people who were denied their right to counsel while bar advocates declined taking new appointed cases, holding out for a pay raise to continue serving as public defenders.  

In light of these developments, now is a critical time to pursue evidence-based policy that fosters both community safety and racial justice. Massachusetts can take up that mantel with holistic pretrial reform to reduce the use of cash bail and pretrial detention. 

For people who are legally presumed innocent, cash bail produces wealth-based detention and a two-tiered system of justice: freedom for those with financial means, and detention in conditions indistinguishable from punishment for those without.  

The vast majority of people prosecuted for crimes in the Commonwealth are indigent. Therefore, for many accused people, posting any amount of bail can be nearly impossible. Given the socioeconomic and racial wealth disparities throughout Massachusetts, the Commonwealth’s current system of release and detention disparately burdens people of color. This affects entire families, who scrape together funds to buy their loved ones’ freedom. And any system which releases someone based on their access to wealth, rather than their true threat, enables precisely the severe harms to individual and community safety we all want to prevent.  

Eight years have passed since the Massachusetts Supreme Judicial Court first required judges to consider the financial circumstances of people accused of crimes when deciding whether to impose cash bail as a condition of release. One year later, the Legislature adopted omnibus criminal justice reform legislation that sought to reduce stark racial disparities in incarceration, reduce the criminal system’s overall footprint, and study continued bail reform.  

While that set of reforms resulted in some important gains in justice and community safety, the benefits of the limited pretrial reforms were not distributed equally: new research from the Roundtable on Racial Disparities in Massachusetts Criminal Courts, a project of the Program in Criminal Justice Policy and Management of the Harvard Kennedy School Malcolm Wiener Center for Social Policy, provides suggestive evidence that white people have been the biggest, and nearly only, beneficiaries of the limited pretrial reforms adopted since 2017. As the jail population fell statewide, that decrease was almost entirely among white defendants.  

To better understand why this happened, we examined two sources of pretrial detention: cash bail and prosecutors’ requests to hold people without bail because they are alleged to be too dangerous to release pretrial. We found that racial disparities continue to pervade pretrial detention and release decision-making, even controlling for factors like the severity of criminal charges and whether the criminal accusation carries a potential penalty of a mandatory minimum sentence.  

Black and Hispanic people continue to have bail set more often and in higher amounts relative to white people. We also found gaps and inconsistencies in available data about criminal system decision points. For example, a 2016 study by the Council on State Governments Justice Center identified outstanding warrants, probation detainers, and bail revocation as larger sources of pretrial detention than dangerousness findings. But, despite many improvements and a data overhaul required by the Criminal Justice Reform Act, the state does not presently produce data on these sources of pretrial detention. 

While Massachusetts boasts both historically low crime rates and incarceration rates, the Commonwealth’s pretrial system is behind the times. And sheriffs’ budgets have generally increased—with much more spent on security staff than programs to help people get their lives on track after incarceration.  

Policymakers should follow the emerging evidence base in jurisdictions across the country to rein in the use of pretrial detention and cash bail. Spending even a few days in jail is associated with a greater likelihood of being arrested on a new charge or convicted of a new crime, indicating that pretrial incarceration impedes safety for all of us.  

Study after study in states as diverse as Texas, Illinois, New York, and New Jersey shows that curtailing the use of cash bail has positive outcomes, including fiscal and public safety benefits as well as enormous benefits for affected families. In this moment, it is critically important to reject rhetoric fueled by racism and fear and dig into the data to understand who benefits, and who suffers, when our public policy is based on tradition rather than evidence.  

Researchers consistently find severe consequences of cash bail and pretrial detention: loss of employment, greater housing instability, greater likelihood of conviction and a longer sentence to incarceration, the traumatic experience of parental separation for children of incarcerated parents, and decreases in the economic stability of whole families. And even in Massachusetts, the conditions of confinement where people are detained pretrial are indisputably punishing.  

In jail, people experience strip searches, public showers, open communal toilets, inedible food, rodent infestations, limited access to hygiene, crowded dorms or two-person cells the size of a parking space, lack of sleep, enforced idleness; sensory deprivation and sensory overload from constant noise, harsh lighting, and a lack of time outdoors; exposure to violence, punitive sanctions like solitary confinement that may constitute torture, inadequate medical care, and a heightened risk of premature death. And beyond this multitude of harms, evidence shows bail doesn’t even work: cash bail does not incentivize return to court.  

There is much left to do in Massachusetts to pursue a holistic community safety agenda. Whether on police accountability, violence reduction, or reducing prosecutions of misdemeanors that clog our criminal courts and impede public safety, a concerted effort is needed to continue to build a system that prioritizes justice, not punishment.  

The bar advocate counsel crisis has exposed new opportunities. The majority of cases dismissed against people who never received constitutionally guaranteed attorneys were low-level charges like trespass and drug possession, and yet still some 1,300 people were detained without counsel between May and October. While prosecutors should seriously scrutinize low-level cases to determine whether those prosecutions should be revived, in keeping with an emerging evidence base supporting misdemeanor non-prosecution as a public safety intervention, court actors across the board should also adjust their general approach to release and detention, having learned the rarity of serious pretrial violence even in cases where people typically would have been detained by bail.  

Now is a critical moment to confront conventional wisdom and politicized rhetoric that investing in public safety means investing in more jail for more people. There are better, more cost-effective policy interventions to achieve return to court: emerging research shows that text message reminders improve court appearance rates. Reforms in other jurisdictions have shown that people can be released at higher rates and continue to come back to court at even higher rates.  

In other words, rather than continuing to invest in ever-increasing sheriff budgets, policymakers would do well to build on these lessons in crafting a path forward. While the “gravy train” of sheriff budgets receive new scrutiny due to high-profile instances of alleged misconduct, the Legislature and the public should be equally concerned with the underlying policy goals of this spending: human caging, disproportionately of Black and Hispanic people who are presumed innocent. To achieve safe and thriving communities for all, relying less on pretrial jailing is an essential policy agenda. 

Katy Naples-Mitchell is program director of the Program in Criminal Justice Policy and Management at the Harvard Kennedy School’s Malcolm Wiener Center for Social Policy.