Will Massachusetts Build a New Jail or Explore Alternatives to Bail?

Norma Wassel recalled a woman who was arrested for stealing a winter coat. Not only did she not have a winter coat, she also lacked $50 to post bail. Without that $50, she would have remained behind bars until her case was heard.

Stories such as this are fairly frequent in Massachusetts and across the country. Women often are incarcerated pretrial not because they are a risk to themselves or their communities but because they cannot afford to post bail. Those arrested in several counties are sent to the Awaiting Trial Unit (ATU) at MCI-Framingham, the state’s women’s prison. According to the Massachusetts Department of Corrections’ weekly count sheet, the ATU was at 472 percent capacity, with 302 people, as of February 3, 2014. Its original design capacity was for 64 people.

A study by the Massachusetts Women’s Justice Network found that:

– The ATU consistently operates at 330 percent capacity.

– 56 percent of women in the ATU had bail of less than $1,000.

– The average length of stay is 77 days.

– 60 percent of women detained pretrial eventually had their cases dismissed or continued without a finding.

– Although women make up 7 percent of state prisoners, they make up 33 percent of the Department of Corrections’ pretrial detainees.

In January 2013, Rep. Kay Khan introduced H1434, a bill to build what she calls a “women’s pretrial facility” in Middlesex County, which begins just west of Boston. In an interview with Truthout, Khan insisted, “This is not about building jails. It’s about getting people detoxed, getting them treatment and getting people awaiting trial to the services that they need.” She noted that many women are arrested for substance-abuse-related issues and that the prison does not provide substance abuse treatment for those awaiting trial.

“The bill, as currently worded, is certainly a jail, which would house women awaiting trial and women sentenced to less than two and a half years,” stated Louellyn Lambros, policy adviser for advocacy group Families for Justice as Healing. “But Representative Khan has personally told me that she is open to learning about alternatives to incarceration and changing the wording of the bill.” As currently worded, the proposed “facility” will be operated, administered and staffed by the sheriff of Middlesex County.

The bill is currently before the committee on the judiciary. No hearing date has been set.

Putting a Price on (Pretrial) Freedom

Norma Wassel is a resident of Middlesex County. She is also a founder and chairwoman of the Massachusetts Bail Fund, an organization that posts bail for those unable to afford it. In an interview with Truthout, she noted that people who are incarcerated while awaiting trial are more likely to end up a statistic in recidivism. “Even if you’re out after ten weeks, you may have lost your housing, your job, your place in a program, custody of your children, etc.” Bail, she explained, is not based on the likelihood of appearing in court; instead, it’s based on whether the person is able to afford the price of freedom. And those who can’t afford that price have increased chances of longer-term imprisonment.

According to Tim Murray, executive director of the Pretrial Justice Institute, those incarcerated pretrial are six times more likely to be sent to jail or prison and are four times more likely to be convicted than those in a similar cohort who have been released pending trial.

Wassel and others involved with the bail fund have seen this scenario repeatedly. Wassel recounted the experience of one member, who, during her first week as an attorney, defended a 19-year-old. The judge set the teenager’s bail at $200. “He was homeless. He had no family. So $200 could have been $2,000,” Wassel said. The evidence pointed to the teen’s innocence, but, after several days in jail, he decided to plead guilty rather than spend additional time in jail while his case wound through the trial process.

“‘But you didn’t do it,’ the attorney argued. He took the papers, signed them and said, ‘I did it now,’ ” Wassel told Truthout. “She saw this over and over again. Bail is a very flawed system that perpetuates inequality. Poor people are punished for their inability to pay.”

In contrast, Wassel recalled a young man whom the bail fund posted bail for and connected to drug treatment services. After six months in a program, he was able to demonstrate that he had participated and benefited from treatment. The judge and the district attorney chose not to go forward in the case.

In her written testimony to the state’s Judiciary Committee, Wassel recommended that the committee collect and analyze data on people being incarcerated pretrial. She and other advocates have stated that no such data is readily available about the area’s pretrial population. Rachel Roth, an independent scholar on women’s imprisonment and resident of the county where the new jail would be built, described the data vacuum on women in pretrial detention: “The Department of Correction (DOC), which runs the prison where women from Middlesex County are held, told me it doesn’t know what they’re charged with or what their bail status is. The sheriff might have that information, but they referred me to the DOC. Each agency might have a piece of the puzzle, but no one has provided an analysis of women awaiting trial to inform public debate or demonstrate the need for a new jail.”

Representatives of the National Institute of Corrections have indicated that they would be willing to provide free assessments of the pretrial population in both county jails and MCI Framingham if allowed by the sheriffs and the Executive Office of Public Safety and Security.

The Pretrial Working Group Emerges

Wassel is not alone in opposing H1434. Lois Ahrens, director of advocacy group the Real Cost of Prisons Project, has a history of fighting against jails and prisons. Six years ago, Ahrens was involved in efforts to stop the building of the Chicopee Jail for Women in Western Massachusetts. Although the jail was built, Ahrens continues to fight against jail building and punitive incarceration policies. In 2010, she led efforts that successfully defeated a “pay to stay” bill requiring pretrial defendants pay for their incarceration. “As soon as I found out about H1434, I got involved,” she told Truthout. She emphasizes that the current system of bail “isn’t about guilt or innocence; it’s about whether the person will show up to court. And for women – almost all have intense ties to the community. Most have kids. They’re not going to pack up their kids and move to North Carolina [to avoid coming to court]. They live in Massachusetts.”

Andrea James also has been speaking out against the proposed jail. James is a co-founder of Families for Justice as Healing, an advocacy organization of formerly incarcerated women. She recalled attending an October 2011 hearing around mandatory minimums at the Massachusetts State House. “A parade of sheriffs came in and put all the proceedings on hold, interrupting the family that had been testifying,” she told Truthout. “Andrea Cabral [now secretary of the Executive Office of Public Safety and Security] was Suffolk County sheriff at the time. She asked for the committee’s support for building new jails.” These new jails included a jail in Middlesex County. This was the first James had heard of the proposed jail. “I had just been released from a women’s prison where I had spent 18 months. I had written a book on women in prison and had been researching women’s incarceration. I knew that the last thing we needed was a new jail. I couldn’t believe I hadn’t heard about it before.” Since then, James has been speaking out against the jail. She has spoken at churches, conferences and forums as well as to legislative aides and legislators. “We tell them, ‘We appreciate you trying to address overcrowding, but building a new jail won’t address the underlying problems [of why people are arrested]. We think that shift needs to happen in our communities. Those resources need to be put in our community.”

In addition to being the policy adviser for Families for Justice as Healing, Lambros has volunteered with the Massachusetts Bail Fund and seen firsthand the problems with the bail system. “We have the principle of Innocent until Proven Guilty,” she told Truthout. Holding someone because they can’t pay bail “flies in the face of that.”

Lambros also has been working to educate legislators and their constituents not only about the bill but about the underlying issues of bail and pretrial incarceration, explaining that pretrial incarceration is an entry point for longer incarceration. “Our focus is No Entry. We’re trying to keep everybody out of jail that doesn’t need to be there,” she explained. She notes that states that have decreased their pretrial jail population rely on risk assessment tools rather than ability to pay bail. “We need to move away from bail and let people wait at home for their court date unless there’s a [compelling] reason not to. But let’s not incarcerate people because they have a drug problem or have a mental health issue or can’t pay court fees or restitution or can’t afford bail.”

Lambros has publicly raised the issue at forums hosted by gubernatorial candidates. “Candidates often take a position on issues that the public is clamoring about. And there’s not a groundswell of attention about this. The average constituent doesn’t know that the number of people being held because they can’t afford bail is a problem. But when one candidate is speaking out about an issue, it forces the other candidates to begin thinking about and speaking about it as well. And the more they know about it, the more that they’ll talk about the issue.” While some have expressed interest in learning more about the issues of pretrial detention and the bail system, only one candidate has taken a public position on bail reform thus far.

In November 2013, Wassel co-hosted several presentations by the Pretrial Justice Institute as well as Maine Pretrial Services, a nonprofit contracted by the state of Maine to provide pretrial services. Out of those presentations came the PreTrial Working Group, a statewide coalition of organizations and individuals advocating for alternatives to pretrial incarceration. Ahrens, James, Lambros and Wassel are all part of the group.

In January 2014, the PreTrial Working Group sent a letter to Cabral, urging her office to invite the National Institute of Corrections to conduct an assessment of people held pretrial in county jails and at MCI Framingham. The assessment should include data on charges, the percentage of people being held on violations of probation or parole, bail amounts and Section 35 commitments. (In Massachusetts, Section 35 allows for the civil commitment of a person whose substance abuse poses a danger to themselves or others.) Cabral has yet to respond. Her assistant told Truthout that Cabral was not commenting on the request at this time.

“A Substance Abuse Issue Should Not Have a Criminal Justice Response”

In her phone interview with Truthout, Khan stressed the need for detox and treatment for women with substance abuse issues. She has told advocates that her bill will benefit women committed under Section 35. However, the wording of the bill remains, “The facility shall house women convicted of a crime that provides for a house of correction sentence and women detained while awaiting trial.”

“A substance abuse issue should not have a criminal justice response,” Wassel said. “Maybe we need to build more treatment facilities. Jails don’t have the ability to offer treatment.”

“You can call it a ‘facility’ or whatever you want, but the conversation still reverts to holding women in locked facilities away from their children and communities,” James said. “But a jail [even one for civil commitments under Section 35] is never going to cure a woman’s addiction. Being locked up separates you from family, children, all of the things that trigger you when you come back into the community. Section 35 doesn’t address this.”

James recalls speaking with women’s groups and communities that have not been directly affected by incarceration. “We learned that many of them are struggling – silently – with substance abuse and addiction among their children. We’re able to make the connection between substance abuse and incarceration. We continue to throw money away by locking up people for a public health issue. They need to learn to manage their addictions in the communities that trigger their addictions. They’ll never learn to do that in jail or prison.”

“What Else is Possible?”

In Washington, DC, which has outlawed the practice of monetary bail, 85 percent of all arrestees are released pretrial. Other states also have reduced their pretrial populations without an increase in crime by utilizing risk assessment tools rather than relying on bail. In those states, pretrial services are systematized. In Kentucky, for example, government employees manage pretrial services.

Advocates are pushing for the implementation of a pretrial services pilot program. James and Lambros have met with judges and staff members from the Massachusetts Trial Court, who have expressed interest in implementing a pilot.

The Pretrial Working Group will be hosting a roundtable that brings together people from the Trial Court, the Commission of Probation, the Executive Office of Public Safety and Security, the public defenders’ office, the district attorney’s office and the Department of Correction with people from the National Institute of Corrections and organizations from states that have reduced their pretrial populations. “We want to get them together to map out a model of what this could look like in Massachusetts,” James said. “When we have conversations, people ask, ‘What else is possible?’ We want to give them a very concrete plan and have them ask their legislators, ‘Why isn’t this being done?’ “

“If we defeat the jail, it won’t just be that we won’t have built another jail,” Ahrens said. “It will mean that we’ve put alternatives in place.”