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Think twice before overhauling Mass. bail and pretrial statute

In their opinion piece “MA is MIA on criminal justice reform’’ (July 17), Stephen Goldsmith and Jane Wiseman assume that Massachusetts incarcerates 60 percent of defendants awaiting trial. A day in a district court would show that that figure is absurdly high.

Massachusetts, a leader in bail reform, was the first state to eliminate bail requirements for most defendants. Except in murder cases, there is a presumption that defendants will be released simply on their promise to return to court. Most states still use bail bondsmen, despite a Supreme Court opinion denouncing the “heavy and irretrievable burden’’ this places on the poor. Massachusetts eliminated bail bondsmen.

Judges decide bail not by a “best guess about the defendant’s risk and the defendant’s ability to scrounge up bail money,’’ but by considering 17 factors, including the offense charged, the defendant’s ties to the community, and any criminal record.

Massachusetts uses alternatives to incarceration: 3,000 people awaiting trial or already convicted are on electronic monitoring. Thousands awaiting trial are released on pretrial conditions, such as drug treatment.

Most often, crimes of violence prompt bail requests, not “minor drug or larceny charges.’’ These are difficult decisions, even with a lot of data, because they are an attempt to predict human behavior, and every individual is different.

We must ensure that any new bail procedure is at least as effective as the present system in getting defendants to appear for trial. If victims never get their day in court because defendants keep defaulting, justice is not being done.

James J. Foley

Hingham

The writer is an assistant clerk-magistrate in the Massachusetts Trial Court.