Assessing Risk and Cash Bail in Massachusetts

The use of risk assessments to determine the outcome of bail hearings has the potential to eliminate inequality in bail decisions and establish an impartial uniformity for the use of bail in jurisdictions across Massachusetts – but only when the assessments are based on empirical evidence and combined with judicial discretion. In April of 2018, Massachusetts passed a criminal justice reform bill. Under the new reform, a judge must take into account a defendant’s ability to pay bail when a bail amount is set. I measured the success of the bill through an ethnographic study, by sitting in on bail hearings and observing the bail setting process. Despite the new reform bill in Massachusetts, I found that only 22 percent (28/128) of judges asked the defendant about their ability to afford bail – and with the exception of one defendant, all stated that they were unable to afford the proposed bail. Despite that, the bail amount was changed in only three of the cases – two to release with non-monetary conditions, and one to release on personal recognizance. I also found that there exists no system or assessment for judges to reference when determining a defendant’s flight risk or dangerousness. Decisions are seemingly based entirely on the judge’s discretion, a method determined to be largely ineffective by multiple experts. Bail reform has been the subject of intense debate within the criminal justice field for years, especially since the Bail Reform Act of 1984. As this debate continues, a solution for the best use of bail in Massachusetts is constantly developing, but has yet to be found