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Massachusetts Prosecutors Are Using ‘Dangerousness’ Holds To Keep People Incarcerated Pretrial

Advocates say that despite the election of several progressive prosecutors in the state, there’s a substantial increase in such detentions, which are stymieing gains made through policies to limit cash bail.

Photo illustration by Elizabeth Brown. Photo from Getty images.

On June 21, Devonrick Schouten, a transgender man, was found unresponsive inside a women’s prison in Middlesex County, Massachusetts. Schouten was transported to a nearby hospital where he died four days later.

No cause of death has been released, but prosecutors have said his death is not suspicious.

Schouten was incarcerated for less than one month before his death. He was arrested on May 27 and charged with attempted murder for allegedly stabbing a woman in the stomach during an argument. Schouten told police the stabbing was an act of self-defense.

Despite having the constitutional right to pretrial release on bail, Schouten was held without bail because Middlesex County prosecutors argued he was too dangerous to be released.

In Massachusetts, court rule 58A allows prosecutors to request that a person be held without bail because they believe the person is a threat to society.

A new report from Court Watch MA, an abolitionist organization that is a joint project of the Massachusetts Bail Fund and Families for Justice as Healing monitoring criminal legal reform in the state, found that 58A holds are on the rise even as reliance on cash bail is declining. 

“If we’re deciding if someone should be incarcerated indefinitely at the beginning of the court process, that really doesn’t feel like somebody is presumed to be innocent,” Mallory Hanora, executive director of Families for Justice as Healing, told The Appeal. “It feels like they are just getting one type of conviction that is preparing them for another conviction later.”

Statewide, hearings for 58A holds rose nearly 20 percent between fiscal years 2018 and 2019, according to data from Massachusetts Trial Court. Hearings for 58A holds are also up another 10 percent during the first quarter of the current fiscal year.

Court Watch MA’s report examined how pretrial reform rhetoric from progressive prosecutors in Berkshire, Middlesex and Suffolk counties matched their practices.

According to Court Watch MA, Middlesex County District Attorney Marian Ryan’s office attempted to hold the most number of people indefinitely without bail because of perceived dangerousness. In fiscal year 2019, the office requested nearly 600 58A hearings, compared with 524 in 2018.

Under Ryan, Middlesex County ranks third in the use of 58A holds, with roughly 14 requests for detention without bail for every 1,000 cases filed there, according to Massachusetts Trial Court data. Essex County District Attorney Jonathan Blodgget made 32 requests for 58A holds per 1,000 cases while Bristol County DA Thomas Quinn requested 58A holds in approximately 24 out of every 1,000 cases.

Ryan did not respond to requests for comment from The Appeal.

The office of Rachael Rollins, DA of Suffolk County—which includes Boston—had the lowest rate of 58A holds, at a little more than one per 1,000 cases. 

Berkshire County District Attorney Andrea Harrington, elected in 2018 after running on a reform platform, announced a plan in February meant to eliminate cash bail in most cases. But she also said she expected to rely more heavily on 58A holds. According to Court Watch MA, the number of 58A holds in Berkshire County nearly doubled between fiscal year 2018 and 2019. 

Harrington’s office used 58A holds at a rate nearly 10 times that of Rollins’s. 

Harrington said many of her office’s requests for 58A holds involve domestic violence cases, and the requested holds are done to ensure the safety of the victims. 

“I really believe in reform,” she told The Appeal. “In order for that to be successful, people need to be safe and people need to feel safe.”

Harrington said prosecutors in her office are collecting data on their pretrial practice and reviewing cases in which they have requested 58A holds to better tailor those requests in the future.

“I’m working towards policies that are fair and lead towards decarceration, but it’s also my job to ensure public safety,” she said.

Hanora said that increased use of 58A holds by reform prosecutors exemplifies the criminal legal system’s persistent problem with separating people into categories of those deserving and undeserving of reform. “It’s still a really problematic proposition that there are some people who deserve to be in a cage,” she said. “What is that really solving, how is that contributing to public safety, and how else could we do this instead? That conversation never happens. The conversation stops at these are bad, dangerous people and they have to be away from society.” 

Hanora added that the use of incarceration is inherently destabilizing and exacerbates underlying problems that create violence.

Indeed, pretrial incarceration is associated with exposure to violence and sexual assault, an increased likelihood of people entering guilty pleas as well as decreased earnings years after release. 

In 2008, Berkshire County was sued by a man who was held in its jail in 2005. During his incarceration, the man said he alerted staff that a person in the jail was a known enemy. Instead of protecting him, a corrections officer opened the doors to a jail cell to allow him to be assaulted. The man had also blown the whistle on a correctional officer who he said was smuggling marijuana into the facility.

After the county reached an undisclosed settlement with the victim, the case was dismissed in 2010.

“The separation into categories of who we are willing to offer reforms to is really problematic,” Hanora said. “At the end of the day, underneath of that all is racial bias and underneath that is still the idea that any jail cell can solve a social problem. We don’t think that they do.