New research finds wide racial and ethnic variation in cash bail in Massachusetts




A new study by the nonpartisan think tank MassINC shows large racial and ethnic disparities in the composition of defendants awaiting trial in jail.

In Barnstable County, black defendants are overrepresented in the jail population relative to their share of the county’s general population by a factor of 10 to one. Out west in Franklin County, the disparity for black defendants is nine to one. While the comparable figures are less extreme as you move toward Boston, they are still quite large: nearly five to one in Norfolk County, four to one in Middlesex County, and two to one in Suffolk County.

The researchers had difficulty tracking down data on the amount of bail defendants are asked to post, but the figures from three counties that did provide bail amounts show large racial and ethnic variation. In Barnstable, the median bail amount for black defendants is $20,000, versus $5,000 for white defendants. Berkshire County defendants are released on far lower bail; however, with a $5,000 median for black defendants and a $1,000 median for white defendants, the disparity is even larger. In Plymouth County, the median white bail was also $1,000; black defendants are asked to pay more than twice as much ($2,500).

“These stark racial and ethnic differences indicate a problem” says Ben Forman, MassINC’s research director. “Placing defendants in jail to await trial sets off a chain reaction. Once you’re locked up, you become much more likely to spiral deeper into the criminal justice system. So disparate treatment at this early stage can compound, contributing to wide racial and ethnic disparities in incarceration rates.”

Previously, MassINC has sought to draw attention to racial disparities in incarceration in Massachusetts. While the Commonwealth has one of the lowest incarceration rates in the US overall. The state’s incarceration for black residents is much closer to the national average; for Latinos Massachusetts has one of the highest incarceration rates among the 50 states.

As part of the push to reform the American criminal justice system to reduce racial and ethnic disparities in incarceration, many states are taking aim at the practice of holding defendants on cash bail. These efforts are backed by research that shows many defendants held in jail awaiting trial don’t pose a serious risk. Keeping them out of jail allows states to save money and redirect resources toward more effective uses, like providing treatment and community supervision.

Unlike many states and the federal courts, Massachusetts doesn’t use risk assessment data to make bail decisions. Without these data, it is difficult to determine how many low-risk defendants are awaiting trial in jail that could safely be released, but there are indicators that jails aren’t being used efficiently. According to the MassINC study, between 2008 and 2013, the number of defendants held in jail while waiting for trial increased by 13 percent—despite the fact that crime fell by 10 percent and the number of annual commitments to state and county prisons fell by 22 percent over this same period.

Pending legislation would require courts to use risk data to inform bail decisions. This move would provide data to understand whether low-risk defendants are awaiting trial in jail that could be safely released. It would also provide the data needed to better understand whether racial disparities in bail in Massachusetts are related to racial bias.

From the data MassINC collected, it is only possible to see that black and Latino residents are asked to pay higher amounts for bail. Judges impose higher bail when they believe the risk that a defendant will not appear for trial is greater. An assessment that predicts a defendant’s risk based on characteristics validated by statistical modeling can provide an objective view of who is being held in jail to await trial.

Working closely with the Probation Department, the courts plan to pilot a risk assessment tool next year. According to Forman, “This move is one of several criminal justice reforms that leaders in Massachusetts need to see through. Citizens deserve a data-driven system that keeps us safe in a manner that is both fair and cost-effective.”


This report is the first in a series of policy briefs examining Justice Reinvestment in Massachusetts. Each paper will explore critical issues in our criminal justice system and opportunities to improve public safety through evidence-based change in policy and practice.

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