Massachusetts Supreme Judicial Court justice Geraldine Hines.

Credit: Steven Senne/AP

Bail Reform And The Legacy Of Justice Geraldine Hines

August 28, 2017

Last Friday, the Massachusetts Supreme Judicial Court issued a powerful opinion in favor of bail reform. 

The case involved a man named Jahmal Brangan, who was charged with armed robbery in western Massachusetts. Unable to pay his bail, Brangan has remained in the Hamden County jail for more than three years awaiting trial. Brangan claimed that the trial judge neglected to adequately consider financial resources in the bail calculation, depriving him of his constitutional right to due process. 

Writing for a unanimous court, Geraldine Hines asserted that trial judges must explicitly consider a defendant’s financial resources in setting bail. 

The court acknowledged that judges have the capacity to impose a bail figure beyond the financial means of a defendant if other factors — such as the risk of flight — seem paramount, but in those situations the judge must record a finding of facts and a statement of reasons for the bail decision.

The Brangan case should help reduce pretrial detention in the Commonwealth. American city and county jails teem with criminal defendants languishing behind bars before their trials, not because they pose a danger to society or represent a flight risk, but simply because they are too poor to pay high bail sums. With their trial dates looming far in the future, many of these defendants plead guilty to lesser crimes in exchange for a sentence of time served and a chance to leave their jail cells. 

Judges all too often accept these pleas without paying much attention to the fundamental question of guilt or innocence. Even if a defendant has the patience to wait for trial, the continued detention often has profound collateral consequences — for that person’s employment and housing situation, among other things.

This is a national disgrace.

Concerns about our bail system have long simmered on the backburner of the criminal justice reform debate. In recent years, however, bail reform has emerged as a hot topic — and a bipartisan one. Last month, Senators Kamala Harris (D-CA) and Rand Paul (R-KY) introduced a bill designed to encourage states to reform their bail practices.

They framed their bill as an attempt both to rectify an injustice and save money by decreasing incarceration costs. In an op-ed explaining the genesis of their bill, Harris and Paul cited some of the most salient facts in the debate, including: 450,000 Americans remain in jail prior to trial due to a financial inability to make bail; this burden disproportionately falls on defendants of color, as African-American men nationwide pay 35 percent higher bail than white men; defendants awaiting trial were responsible for 95 percent of the growth in the jail population from 2000-2014; and the cumulative cost of housing these mainly nonviolent offenders is an estimated $38 million per day.

Brangan should affect the lives of thousands of criminal defendants and save the state millions of dollars. It also represents a fitting legacy for Justice Geraldine Hines, the first African-American woman to serve on the SJC. Hines recently retired and will not be on the bench when the court launches its new term in September.

During her three years on the SJC, Hines has authored several groundbreaking decisions, perhaps most notably last year’s Warren case, in which the court found that the fact that an African-American flees from the police in Boston may not be used as evidence of consciousness of guilt in determining whether the police have reasonable suspicion of criminal activity to stop and search that person. As Justice Hines wrote in that case, that behavior may reflect a desire to avoid the “recurring indignity” of being racially profiled rather than a guilty mind.

Geraldine Hines’s brilliant and insightful judicial opinions will influence Massachusetts law for many years to come. We should all be grateful for her service to the cause of justice in the Commonwealth.


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