The recent controversy surrounding the Massachusetts Bail Fund is, at its core, a case of an extreme outlier being used by critics of the nonprofit to undermine the greater good of the program. And it also exposes how often prosecutors misuse bail to hold defendants.
Last month, the fund, which has been flooded with donations in the wake of nationwide racial justice protests, posted a $15,000 bail for the release of Shawn McClinton. McClinton, a 39-year-old twice-convicted sex offender who was being held on rape charges, allegedly went on to rape another woman upon his release.
It’s indisputable that McClinton should not have been released, given that he is accused now of committing another heinous crime. But the matter is not whether the bail fund should have paid McClinton’s bail — it’s that a critical step in due process was skipped. Suffolk County prosecutors could have, and should have, asked a judge that McClinton be held without bail, which would have required a dangerousness hearing.
Instead, prosecutors asked for McClinton to be held on a high bail. Suffolk County District Attorney Rachael Rollins said a dangerousness hearing would have been re-traumatizing to the alleged victim since that person would have been asked to testify in the hearing. And yet, a hearing could have been held without the alleged victim’s presence. What Rollins and the critics of the bail fund miss is that this conversation would be moot if McClinton were wealthy. His family might have paid the bail and probably no one would be criticizing the bail fund or his family.
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Which takes us to the mission of the Mass. Bail Fund and similar nonprofits that have popped up all over the country. On principle, they oppose pretrial detention and cash bail because it disproportionately affects people of color and poor families. “We are a non-judgmental, abolitionist bail fund. We post bail for people regardless of charge or court history,” the nonprofit said in a statement posted on its website. “We do this work because pretrial detention is harmful and racist.” It causes defendants “to lose their housing, lose their jobs, lose their children, and potentially lose their lives,” the statement read. “And throughout the Commonwealth, judges and prosecutors impose higher bails on Black and Brown people than white people for the same categories of offenses.” (The fund cited an analysis from the Massachusetts Trial Court that showed that white defendants had higher rates of release on recognizance and were subject to lower bail amounts than Black and Hispanic defendants.)
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The fund’s administrator, Michael Cox, told WBUR that the fund has always existed to free people who are too poor to afford their own bail. “I’m a survivor of sexual violence while I was incarcerated,” Cox said. “I think that this myth exists that the carceral system is used to eradicate sexual violence and violence in all forms, and that’s not true. We’re merely moving people around.”
Bail has one objective: to make sure defendants come back to court to face their charges. The vast majority of people who are released pretrial on bail — roughly 85 percent, according to recent data from the Massachusetts Trial Court — do not default. Without bail, the failure-to-appear rate is even lower. And only about 7 percent of those freed before their trial were charged with a new criminal offense while the previous case was pending.
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By focusing on that 7 percent, critics of the Mass. Bail Fund miss the forest for the trees. What doesn’t get talked about enough are the hundreds of thousands of defendants whose lives and families are harmed and traumatized, sometimes irreparably, because they are incarcerated while awaiting trial. Or the defendants, like Cox, who are victims of violence while they are detained.
The fund’s governing premise — that the current system is harmful and racist — is a noble one. The overwhelming reality is that there is no real problem when it comes to defendants showing up in court. And when there is a legitimate concern for public safety, there are legal procedures in place to hold people who might be a danger to society.
At a time when society is focused on righting the wrongs of biased policing and criminal justice, and given that people of color are more likely to be held on bail and on higher amounts of bail, the fund’s racial justice work is critical and must be protected. The lapses that led to McClinton’s release should be tackled another way.
Editorials represent the views of the Boston Globe Editorial Board. Follow us @GlobeOpinion.
