I want to respond to the controversy that has arisen around the release of Shawn McClinton, who was recently charged with assaulting a woman after the Massachusetts Bail Fund posted his bail.
It is hard to look at a high bail amount and not think there must be a very good reason for it. It feels instinctual to believe that people are held on high bails because they must be dangerous, but this is patently not the law in Massachusetts. Bail’s sole purpose is to incentivize the accused person to come back to court as their case is processed. If a person doesn’t come back, they forfeit their money. That’s it.
Being held pretrial can be devastating, which is why the highest court in Massachusetts declared that unaffordable bails are unconstitutional. People lose their jobs, their housing, their children. Not because they are dangerous, but because they could not pay their fee. In overwhelming numbers, they come from historically marginalized communities who do not have a spare $5,000 to expend in an emergency.
It is tempting to say that we “aren’t talking about those people.” We’re talking about the $15,000 bail people and the people with prior criminal records. But when we talk about what the Bail Fund does, we are talking about those people. We’re talking about people who were only sitting in jail because they could not pay this purely administrative cost. If prosecutors request higher bails because they believe a person is dangerous, then they are using bail unlawfully. And when we talk about people’s “prior criminal records,” this cannot be divorced from our criminal justice system’s documented practices of over-policing and over-incarcerating poor communities and communities of color.
None of this excuses a violent act or diminishes a victim’s trauma, but it is disingenuous to crucify the Bail Fund and condemn the thousands of vulnerable families who literally rely on the Bail Fund for their lives and liberty.
The state is not helpless when it believes a person is dangerous. There’s a clear process to address this very thing, but it is not through bail. It’s called a dangerousness hearing. It is the prosecutor’s sole call whether to seek one, and it was not done in this case.
We have a criminal justice system that inflicts harm every day. While I grieve for the victim and her family, I stand with the Bail Fund’s values.
— Lindsay Kramer Custer, Somerville (former Hopkinton resident, and daughter of Bail Fund treasurer Muriel Kramer)
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