“No mans person shall be restrained or imprisoned by any Authority whatsoever, before the law hath sentenced him thereto, If he can put in sufficient securitie, bayle or mainprise, for his appearance, and good behaviour in the meane time, unlesse it be in Crimes Capital, and Contempts in open Court, and in such cases where some expresse act of Court doth allow it.” — Body of Liberties (1641), the oldest codification of Massachusetts Colonial law.
Yesterday two members of BCCJ attended an informational meeting on the Massachusetts Bail Fund at the UMASS Law School in Dartmouth. The meeting was organized by Jesse Purvis, National Lawyers Guild, UMASS Law Chapter.
Jessica Thrall, a federal public defender and member of the Massachusetts Bail Fund’s Steering Committee, spoke first. She outlined one stark injustice of the criminal justice system — that a poor person unable to post bail is locked away in miserable conditions and lacks the ability to consult and communicate freely with lawyers and family.
Prisoners under these circumstances are often needlessly warehoused for months in jail at considerable cost. When finally offered a plea for “time served,” they will often accept the plea deal simply to escape the abusive conditions — even though they are innocent. Thus, for the poor, and particularly for people of color, the criminal justice system creates a grinding conveyor belt from poverty to “criminality” — even when the accused is actually innocent. And once the indigent accused has been systemically transformed into a “criminal” more injustice awaits him/her in the workplace and in a probation system that can hound him/her for decades.
Thrall mentioned the recent case of Jahmal Brangan, who sat in the Hampden County jail for three and a half years because he could not post bail. The Massachusetts Supreme Judicial Court ruled last August in the case of Brangan v. Commonwealth, 082517 MASC, SJC-12232, in which Brangan’s “bail order violated his right to due process because the judge failed to give adequate consideration to his financial resources, and set bail in an amount so far beyond his financial means that it resulted in his long-term detention pending resolution of his case.”
The justices ruled that “In setting the amount of bail for a defendant, a judge must consider the defendant’s financial resources but is not required to set bail in an amount the defendant can afford if other relevant considerations weigh more heavily than the defendant’s ability to prove the necessary security for his appearance at trial.” It was a small victory, but now the door is open to more reasonable bail amounts.
Massachusetts has a system in which defendants post cash bail in court (and pay a clerk a nonrefundable $40 fee for the privilege). Bail bondsmen cannot legally operate in the Commonwealth.
The Massachusetts Bail Fund began in Suffolk and Middlesex counties, but has been expanded to Essex, Norfolk, Worcester, Plymouth and Bristol. The Fund provides up to $500 in bail to defendants who are already represented by a public defender and can prove indigence. To date the Fund has bailed out about 700 defendants, and of those about 60% of the cases were immediately dismissed. When asked about defaults — defendants running and causing the Fund to forfeit its $500 — Thrall noted that this has only happened six times — 6 out of 700 — a statistic Thrall says should make the Commonwealth think twice about requiring any amount of bail for minor offenses.
Attendees wanted to know how the process works — and it works only because of the thirty or so volunteers who do the thankless work of actually bailing out indigent people. Attendees had a chance to hear from a remarkable couple about the process.
Jan and Chuck Bichsel are two of four volunteers in Bristol County. They have been volunteering for about seven months with the Mass Bail Fund and have handled about a dozen “releases,” which play out something like this: (1) volunteer(s) receive an email from the Bail Fund coordinator informing them of the release and the jail (Ash Street or BCSO), contact information, telephone numbers, and public defender; (2) the volunteers post the $500 (or lesser amount) personally at the prison, which may entail appearing in the evening, spending up to six hours waiting for prison staff to respond; (3) coordinating with family to pick up the released individual, or even driving him home if the family has no transportation; (4) appearing at a court hearing many months (or years) later in order to recover the bail money for the Fund.
Volunteers are not personally responsible for bail funds. Money “up-fronted” by volunteers is quickly reimbursed by the Fund. Releases, at least in Bristol County, are handled only during the first two weeks of every month (which means that the earliest release for many follows two weeks of incarceration).
It takes a thoughtful, patient person to do this work. Jan Bichsel joked that she might look like the “crocheting type” but that it took every bit of patience and focus to work with a prison system designed to crush people (maybe she is the crocheting type after all). The couple invited prospective volunteers to “ride along” with them before deciding if this work was for them.
To contribute to the bail fund, go to https://www.massbailfund.org/donate.html