At the outset, we want to acknowledge that our team is behind in releasing digests. CourtWatch MA is an all-volunteer effort and we are working diligently to make all of our data analysis public as soon as possible. We thank our readers for your patience. And we thank our volunteers for their consistent timeliness and dedication to this collective endeavor.

From February 13th to February 19th, courtwatchers observed 162 cases at arraignment across four divisions of Boston Municipal Court (BMC Central, Roxbury, Dorchester, and East Boston).[1] This was our first week with observation in East Boston, though we only had one courtwatcher there on one day. We also note that this week included only four days of observations because of a court holiday.

This week, 45.7% of the cases we observed involved only charges that Suffolk County District Attorney Rachael Rollins has pledged to decline to prosecute, either by dismissing at arraignment or diverting through a non-criminal proceeding, program, or outcome. As we’ve seen every week since we began observing, this means almost half the cases we observed this week involved only crimes that District Attorney Rollins identified as low-level, non-violent crimes of poverty, mental illness, and addiction.
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Our digest again focuses on the data courtwatchers collected about cases that exclusively involved charges from DA Rollins’ Decline to Prosecute list.[2]

​Reminder: under the umbrella of cases that DA Rollins pledged to decline to prosecute, we categorize cases that are dismissed outright as dismissals. Cases that are conditionally dismissed – with court costs, community service hours, or a treatment program – and therefore require a subsequent appearance in court are diverted cases. We remain concerned about the impact of imposing conditions which require time, money, or transportation on poor and working class people facing charges.

There were 74 cases involving ONLY charges on the decline to prosecute list this week.
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• 52.7% of these cases (39 cases) advanced as criminal matters.
• 22 of these cases were dismissed at arraignment.
• 13 of these cases were diverted at arraignment
• Therefore, a total of 35 cases, or roughly 47.3%, were declined within the meaning of DA Rollins’ campaign pledge.

Our dataset this week is smaller than some prior weeks; we do not want to overstate the fact that fewer cases were declined this week by percentage, given how small and variable the datasets are week to week. What we can say, once again, is we still are not seeing significant improvement or substantially more cases being declined.

Our First 100 Days project aims to hold DA Rollins accountable precisely because we are excited at the prospect of transformation for our courts and our communities. DA Rollins rightly acknowledges that our criminal punishment system causes harm by criminalizing poverty, addiction, and mental illness; that cash bail is arbitrarily set and keeps people in jail because they cannot afford bail; that court system fines and fees criminalize poverty; and that the lack of transparency in prosecutors’ offices prevents accountability and protects them from being held responsible for the decisions they make about residents. She identified those harms more than a year ago when she announced her candidacy. Her vision for justice energized the electorate. She won a hotly contested primary with a significant margin of victory, and she holds a mandate for change with more than 82% of the general election vote.

After months of developing policy on the campaign trail, planning for her transition, and almost three months into her administration, substantive policies have not been issued or implemented. Both in the press and in meetings with community members, DA Rollins’ office continues to promise that much-anticipated changes are coming. Compared to the rollout of policy by her peers—whether Larry Krasner in Philadelphia, Wesley Bell in St. Louis County, or Andrea Harrington in Berkshire County, MA—DA Rollins has fallen behind.

Our push for accountability is not motivated by general good government principles; this isn’t simply about an elected official doing what they said.

Each week, we see a snapshot of dozens of individual people who are harmed by overly punitive responses to arrests DA Rollins recognizes are rooted in racism, poverty, addiction, and mental illness. We see ADAs recommend holding people in jail on unaffordable cash bail – both for charges she pledged to decline entirely and for more serious charges. In those serious cases, ADAs are not asking for evidentiary dangerousness hearings to prove someone is a threat to a specific person or the community. Instead they are requesting bail in the tens of thousands to ensure someone will be incarcerated before their trial while they are legally presumed innocent.
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We are more than 75% through the First 100 Days. The Suffolk County District Attorney’s Office still lacks policy on the core components of DA Rollins’ platform, even though DA Rollins has spoken publicly about the fact that as a District Attorney she is not hampered by any legislative body and can act swiftly as an executive to implement policy.
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In one week, DA Rollins will have her first public Town Hall. During that public convening, DA Rollins will be taking questions in person and online with #AskDARollins. We hope the Suffolk County District Attorney’s Office will take some time to address how they are going to rectify the harm caused by the delay in issuing more humane policies.

Driving cases did not comprise a majority of dismissals this week or as substantial a plurality of overall cases, as they have every other week we have observed. Of the 22 cases that were dismissed this week, 8 were driving cases (36.4%). The other 14 cases dismissed at arraignment were incidents of trespass (6), shoplifting (1), minor in possession of alcohol (3), drug possession (2), and drug possession with intent to distribute (2).

In at least 9 of these cases, the person being arraigned was not present in court and both the ADA and judge sought to dismiss anyway. This is a positive trend and we applaud judges and ADAs for recognizing that these cases can and should be dismissed, regardless of whether someone appears in court. We note that this was the first week in which we saw cases in which someone was charged only with being a minor in possession of alcohol.

In 1 of these dismissed cases, a man charged with drug possession with intent to distribute went from being in jail to having his case entirely dismissed.

In a separate case involving class B possession with intent to distribute, the ADA verified proof of participation in a drug treatment program before moving to dismiss. The man being arraigned was already enrolled in a treatment program called Out of the Shadows, where he participates in AA and NA meetings as well as voluntary breathalyzer and drug screenings.

In another case this week, a charge of class B drug possession was dismissed outright only after a clean urine test. We have coded these cases as outright dismissals because the individuals were not required to report back to court on a future date and the charges were dismissed. However, these were not truly condition-free dismissals.

People may fail drug tests for the use of legal drugs, for example marijuana or prescribed medications. Further, drug-free court orders unfairly punish people for a normal condition of substance use disorder, bound to appear on the path to recovery: relapse. More than 60 legislators in Massachusetts are working to alter this practice in the context of probation, co-sponsoring legislation to prevent drug testing of people in recovery while they’re on probation. We urge DA Rollins to abandon this practice pretrial and instead seek to dismiss such cases outright so that people struggling with substance use may seek treatment without threat of criminal penalty. Dismissing only on the basis of clean drug tests simply criminalizes addiction.
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A significant majority of driving cases (84.2%) were declined this week at arraignment. Undocumented people are particularly vulnerable when arrested and arraigned on driving charges. It is our hope that declining to prosecute all driving charges will disincentive arrest so driving matters can be handled civilly like they are in many predominantly white suburbs.

In one driving case this week, a man was charged with unlicensed operation of a motor vehicle. The ADA moved to dismiss with court costs or community service. Judge Sally Kelly denied that ADA request on the grounds that if the DA wants to decline to prosecute they must file a nolle prosequi. The ADA said they had to get DA approval to proceed. Accordingly, the man was released on personal recognizance with a return date for six weeks later. As of today’s date, the case remains an open criminal matter on the trial court electronic case access platform.

We highlight this example for two reasons. First, we know that DA Rollins will likely face resistance from other system actors (judges, probation, police) in enacting her vision; the process of changing the culture of the courts will take persistence, and the sooner her office starts working to reshape customs and practices, the sooner she’ll start reducing harm in individual cases. Second, the absence of a policy memo outlining how an ADA should respond when met with resistance in a case like this meant this man’s case continued as a criminal prosecution; we believe that the existence of a memo and training on office policy could have prevented a situation like this from transpiring. Judges have their own practices, and DA Rollins can prepare ADAs to navigate judges’ preferences. DA Rollins needs a robust policy implementation plan to aid ADAs in making strong recommendations both to decline cases and for release on recognizance in cases where they might formerly have requested cash bail.
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For all the charge categories DA Rollins pledged to decline, ADAs should come to arraignment hearings prepared with nolle prosequi statements. This is the only way DA Rollins can ensure consistency in policy across courtrooms; otherwise specific judges may decline ADA motions to dismiss—something we’ve witnessed Judge Kelly do before in separate instances.

We categorize any dismissal that included conditions requiring a future court appearance as a diverted case.

This week 13 cases were diverted. Every disposition involved at least one condition, like treatment; a court fee; community service; or probation, despite no findings of fact or guilt. ADAs usually refer to these cases as “conditional dismissals,” but individuals were generally required to report back to court at least once on a future date to prove compliance with the condition. Additional appearances cause stress and strain on individuals and families that could be avoided by outright dismissals.

A majority of the diversions were driving cases – 8 of the 13 (61.5%) cases diverted this week. For driving cases, judges usually gave the person an option of returning with proof of license/registration/insurance, paying a fee between $50 and $200, completing 20 hours community service, or enrolling in driving school.
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The other diverted cases were: 

We also note that prosecutors continue to rely on punitive conditions that penalize people for being poor, despite DA Rollins’ emphasis during her campaign and recent interviews that she opposes the use of fines and fees to punish people.

Finally, completing community service within the requisite timeframe may mean people need to call out of or cancel work, miss classes, or arrange childcare. Though many judges allow individuals to do community service at a place of their choice, some mandate that individuals serve through the state-run program that requires manual labor and is only offered on certain days.
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This kind of community service has no restorative value and is imposed before a person has been convicted of any wrongdoing. Pre-arraignment community service is simply a punishment for being arrested.

In 17 cases that advanced as criminal matters, the person being arraigned was released on personal recognizance. In many such cases, the court also imposed conditions—especially common was a stay away or no contact order for the place of the incident or a person involved. Sometimes a person is required to stay away from a shelter where they lived for the last year or a major transit hub through which they have to commute.

In one case of drug possession with intent to distribute, a 25-year-old had been released on an unknown bail amount at the police station. The judge adjusted his release conditions to personal recognizance. The only substance involved: marijuana. Police allegedly found 20-25 bags of marijuana and a scale in his car. DA Rollins speaks about the racial injustice in historical marijuana enforcement, yet her office continues to pursue marijuana cases, including this case of possession with intent to distribute marijuana—a charge she pledged to decline and a legal substance in the state of Massachusetts. Based on DA Rollins’ campaign pledges, this case should not be prosecuted.

In 7 cases exclusively involving charges DA Rollins pledged to decline this week, bail was set. Bail amounts ranged from $100 to $500. Four of these cases involved charges of drug possession and/or possession with intent to distribute and/or resisting arrest. In one of these cases, bail was set on the new charges and bail was revoked on a prior case. The other three cases were charges of larceny under $1200.

In one of these misdemeanor larceny cases, the man being arraigned was homeless and receiving methadone and psychiatric treatment. He already has an outstanding court order for money owed. The ADA recommended $500 bail. The judge imposed $200 bail. A homeless man charged with a crime DA Rollins pledged to decline on a stable treatment regimen was denied access to care and kept in jail because of the actions of a prosecutor who reports to DA Rollins in the Suffolk County District Attorney’s Office.

In the remaining 15 cases, we don’t know the final release decision or case outcome because the arraignment was continued—i.e. postponed to a future date or time (7 cases), the person being arraigned remained detained (despite the judge deciding to release them on personal recognizance on the pending charges) in order to resolve a warrant in another court (2 cases), the person did not appear for arraignment and a warrant was issued (5 cases), or the courtwatcher wasn’t sure what happened (1 case).

We again note that people not showing up for arraignment happens rarely, and that courts don’t have to verify that a person actually received a summons before issuing an arrest warrant—a disturbing practice we hope DA Rollins will push to change.

Our data collection on bail may undercount people who have already paid bail at the police station. Courtwatchers have not always been able to reliably document when someone has already posted bail, and in what amount, if they freely walk into court. This is not always explicitly addressed on the record.
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Bail is set at the police station by court clerks. How bail amounts are decided is not transparent to the public and bail is set with very little oversight. 

In 17 of these cases, the person being arraigned was in jail at the time of arraignment. Among those 17 individuals,

• 6 were released on personal recognizance,
• 2 had their cases diverted, and
• 1 had their case dismissed.

The remaining 8 people were assessed bail (5), had their bail revoked and were assessed bail (1), or were held for transport to another court for an open warrant (2).

In other words, 9 people spent time in jail and ultimately were not prosecuted or were released; they were detained without an ability to shower, change clothes, see their kids, walk their pets, take their medications, or communicate with their jobs or families—only to have a judge determine there was no good reason to detain them.

Further, this means in 52.9% of cases in which a bail magistrate declined to release someone this week, the judge released the individual or diverted or dismissed that person’s case.
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While clerks make decisions to set bail at police stations independently of the DA’s office, we hope that District Attorney Rollins will both express her contempt for pre-trial detention and implement a strong policy that avoids pre-trial detention at all costs.

​This week courtwatchers observed many cases where the person being arraigned did not appear, and therefore racial demographic observations were impossible. Courtwatchers noted demographics in only 51 of the 74 decline to prosecute cases.

​Black defendants are once again astronomically overrepresented compared to the population, while white defendants are starkly underrepresented.

Each week we see a number of cases rooted in social or administrative issues that are frequently dismissed and which DA Rollins should consider adding to her pending list of charges to be declined. For example, 5 cases observed this week were for drinking in public, a minor ordinance violation, all of which were dismissed without conditions even when the individual was not present in court.
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We hope the forthcoming policy memo includes not only all of the charges DA Rollins identified on the campaign trail but also other petty offenses—including those we have highlighted over the past ten weeks (for example, failure to attend jury duty), in these digests and on twitter.

On February 15th, a man appeared in Dorchester to resolve a default. He had been arraigned in July on assault and battery with a dangerous weapon, released on $400 bail. At that July appearance his next court date was scheduled for February 13, 2019. However, he was picked up by ICE at the courthouse and held for the last six months.

Since he was held in immigration detention, he missed court on February 13th. The judge found his failure to appear constituted a default, issued a warrant, and found that the $400 bail he had paid in July should be forfeited.

However, within 2 days of that default, this man came to court on his own with his attorney. He had just been granted asylum, meaning lawful residence in the U.S. on the basis of a credible fear of persecution if returned to his country of origin, and released from ICE custody. The judge acknowledged that no one knew he had been in ICE custody. The default was cleared; bail was reinstated; his next court date was scheduled for April.

We tell this story for a few reasons. For one thing, this man’s case illustrates that so-called “failures to appear” may not reflect willful avoidance of court obligations; often, we see people with explainable impediments to showing up to court—for example, they were detained elsewhere; they lacked transportation to court; they face housing insecurity and never received a summons on the underlying charge. And yet defaults are used to enhance criminal consequences: a default on one’s record often encourages judges to set a higher bail or to issue a warrant when someone misses court in the future. The court system does not track data to determine how many “failures to appear” reflect actual “flight,” and yet the failure to appear boogeyman continues to take up an undue amount of space in ongoing conversations about bail reform—despite the fact that the failure to appear rate in Massachusetts is exceedingly low even with this confounded data.
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Second, we tell this story because of what it says about how our court system and state and local law enforcement continue to allow ICE to trample the rights of immigrants. This man was picked up at the courthouse. He was secreted away to detention without notifying the court system. He was not brought in for his next court appearance. ICE expects cooperation from our courts and law enforcement, meanwhile ICE denies immigrants the opportunity to vindicate their rights in court, prevents them from meaningful participation in their defense in pending criminal cases, and puts them in jeopardy of further heightened criminal penalties. DA Rollins promised to implement an ICE security policy within 30 days of taking office. Recent reporting demonstrates that the Boston Police Department continues to work collusively with ICE. Where is DA Rollins’ promised leadership to protect sanctuary in Suffolk County?

As stated above, 39 cases involving only charges to be declined were not dismissed or diverted. Those cases should also be declined, and we hope that this will change in the weeks to come.

Courtwatchers observed 6 cases involving charges from the decline to prosecute list in which an ADA asked for bail. We again emphasize that ADAs should always recommend release on personal recognizance in cases when the person is not a flight risk and should never request bail for charges on the do not prosecute list.

Courtwatchers documented 10 cases this week involving charges from the decline to prosecute list in which ADAs asked for conditions instead of dismissing the case outright. Further, courtwatchers documented 17 decline to prosecute cases in which ADAs asked for release on personal recognizance—intentionally continuing the case as a criminal matter.

Finally, we saw 1 case in which an ADA successfully requested that bail on a prior case be revoked for a person facing new charges of drug possession and resisting arrest, in addition to requesting bail on the new charges. Because his bail was revoked, this man will now be held for 60 days without the possibility of release. DA Rollins should monitor this practice among her ADAs and prevent this from happening again. Just as we advocate that bail should never be set on a charge to be declined, bail should likewise never be revoked in connection with a docket involving this set of charges.
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In all cases, we hope ADAs seek the least burdensome outcome that will resolve the case. For all 15 charges DA Rollins has identified, we believe cases should generally be dismissed without conditions.

On March 11th, DA Rollins announced her first policy change to implement a campaign promise: the creation of a four-person independent review committee for a police-involved shooting. The Discharge Integrity Team (“DIT”) will meet on a monthly basis with DA Rollins and her First Assistant to review the progress of her Office’s investigation of a specific incident—a February 22nd shooting between 36-year-old Kasim Kahrim and Boston Police officers, in which Mr. Kahrim was killed and an officer suffered multiple gunshot wounds. The SCDAO press release stated the four appointed individuals would “assess the state of the evidence, monitor the direction of the investigation, and examine the procedural steps undertaken by investigators on the ground.” This outside review team aims to fulfill Rollins’ campaign promise to “remove the investigative process from the ADAs in the Office and have a select group of external experts handle these investigations and report the finding directly to the DA.”

We applaud DA Rollins for delivering on this campaign pledge and implementing a significant procedural change that will act as an accountability check on SCDAO investigations of officer-involved shootings and provide an oversight mechanism when police use force. Local organizers, in particular survivors of loved ones murdered by police, have sought this change for years. We hope this is the first of many steps DA Rollins takes to be responsive to the needs of the community she represents.

However, to date, DA Rollins has not delivered on many of the core components of her substantive policy platform: an ICE security policy within 30 days of taking office; policy on declining charges that criminalize poverty, addiction, and mental illness; bail reform—in particular, “eliminating cash bail for individuals who do not pose a flight risk.”

We have long passed DA Rollins’ own benchmark of six weeks, the time it took DA Larry Krasner in Philadelphia to issue his first policy memo. DA Rollins continues to speak publicly about the list of offenses she pledged to decline, her intent to implement policy, and her promise to review the policy and internal data after six months to see what is working. We appreciate her continued commitment to these goals—but each day that goes by without formal policy, the harms she rightly identified continue.

In a report released on March 19th, the ACLU of Massachusetts analyzed two years of criminal prosecution data from the Suffolk County District Attorney’s Office under DA Rollins’ predecessor, Dan Conley. Data like this has never been released to the public in Suffolk County. The report found, among other things:
 

• Black people in Suffolk County were disproportionately charged with “Decline to Prosecute” offenses.
• Over the two-year period, Black people were three times more likely to be charged with trespass or resisting arrest than white people, and four times more likely to be charged with a motor vehicle offense—in one neighborhood, 15 times more likely.
• Black people were not only charged at higher rates: in many of the “Decline to Prosecute” categories, Black people were more likely to face an adverse disposition (e.g., admission to sufficient fact or conviction with a term of probation or incarceration).
• During that two-year period, the Suffolk County District Attorney’s Office prosecuted 55% of DTP cases to a non-adverse disposition. In other words, over half of the DTP cases prosecuted between 2013 and 2014 resulted in dismissals or acquittals.
• Even though a majority of these cases ultimately resolved without a criminal conviction or adverse finding, people often had to go through many months of pre-trial hearings before their cases were dismissed, which causes stress and strain particularly if people were incarcerated and/or low-income, hourly workers, and/or homeless.

 
The ACLU analyzed dismissals and acquittals across the life of criminal cases, not only dismissals at arraignments. Therefore their findings are not a perfect comparator or baseline against which to measure our findings and the progress of the Rollins administration. Still, this snapshot demonstrates that DA Rollins has not improved upon her predecessor’s record when it comes to these minor offenses. In these weekly digests, we’ve published data analysis based on data collected by volunteers that mirrors the dismissal rate and racial disparities seen in the data from 2013-2014.
 
DA offices can be the drivers of community-led change, rather than subordinate to the forces of other institutional actors. We amplify the ACLU’s recommendations, which echo our longstanding advocacy points; DA Rollins should:
 

1. “fully implement her promised ‘Decline to Prosecute’ policy. She must honor her campaign platform of presumptive non-prosecution of the 15 misdemeanors and low-level felonies.”
   
   
2. “improve record-keeping and data collection.” The ACLU further recommends, “Prosecution statistics should be analyzed and reported out on a week-to-week basis. Data should include but not be limited to prosecution statistics for each court, status of each case and next court date, bail requests, charge breakdowns, plea offers, final disposition, as well as race and ethnicity data. This will ensure that DTP charges are being dismissed, and help identify trends, problems, and costs of prosecution.”
   
   
3. “work with Suffolk County residents, community organizers, health care advocates, drug treatment specialists, anti-poverty activists, local small business owners, youth and youth workers, and others to develop a robust network of community-led alternatives to prosecution.”
   
   ​We know that DA Rollins has met with a coalition of community groups working in these domains and her office has been provided with additional names, but there has been limited follow-up to advance community-led alternatives.
   
   
4. “work with the Boston Police Department, the Massachusetts State Police, and all other municipal and university law enforcement agencies in Suffolk County to ensure that people are not being charged unnecessarily or in a racially disparate manner.”

We are publishing this digest late. We are now well into week 11 without substantive office policy. The charges DA Rollins pledged to decline continue to be criminally prosecuted; people continue to be held on cash bail in response to ADA requests; and the only data we have is the data our volunteers collect.

All told, Suffolk County’s district courts continue to churn through minor cases and disrupt people’s lives with time in jail, punitive conditions, and unnecessary arrest warrants for court absences.

We have now published seven weeks of data analysis. As of our date of publication, DA Rollins has already been in office for eleven weeks. Her first quarterly Town Hall is next week. We hope she will take some time to address our continuing advocacy points:

1. Publish SCDAO data;
2. Issue policy on core substantive campaign pledges (ICE, bail, and charges to decline); and
3. Train ADAs on substantive policy changes and hold them accountable if they deviate from office policy.

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We’re waiting. And we’ll be watching.

[1] This week we again removed cases from our dataset representing status hearings, diversion check ins, restraining orders, probation violations, or other types of hearings that were not initial arraignments. We again note that the total number of hearings observed is not the total number of arraignments which transpired in those courts. For a more comprehensive count of arraignments, you can view sparse information about all criminal cases, by court and date of filing, at masscourts.org. Select the court, use the “case type” tab, select the relevant date(s), and select both “criminal” and “criminal cross site” as the case type. For the same period (February 13th to February 19th), a search on MassCourts reveals 116 cases out of BMC Central, 55 cases out of Roxbury, 67 cases out of Dorchester, and 23 cases out of East Boston, for a total of 261 cases filed this week in these courts. We note that this number also does not reflect the total number of cases arraigned in these courts; courtwatchers also observe arraignments of older dockets with some frequency.
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[2] Because of limited capacity of the CourtWatch MA team, we again did not verify every case against the limited available charge information on masscourts.org. We have verified the charge in any case where the courtwatcher left the charge blank, did not hear the charge, or noted that reading the charge was waived in court. It is of course possible courtwatchers misheard the charge(s) in any given case; we reiterate that our data collection is not a substitute for open government. We remain cautiously optimistic that District Attorney Rollins will release data tracked by the Suffolk County District Attorney’s Office going forward, as she pledged during her campaign.

[3] Courtwatchers write down demographic information (age, race, gender) based on observation alone; we recognize that this is an imperfect way to determine markers of identity. We ask courtwatchers to note this information because (1) courts are unlikely to disclose this information even if we requested every docket; and (2) the system operates based on an individual’s outward perception and expression, regardless of their stated identity, so demographic observations are a reasonable methodology for this particular project. We again reiterate that courtwatchers can select as many racial demographic markers as apply.​

At the outset, we want to acknowledge that our team is behind in releasing digests. CourtWatch MA is an all-volunteer effort and we are working diligently to make all of our data analysis public as soon as possible.
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From February 6th to February 12th, our courtwatchers observed 201 cases at arraignment across three divisions of Boston Municipal Court (BMC Central, Roxbury, and Dorchester).[1]

This week, 44.8% of the cases we observed involved only charges that Suffolk County District Attorney Rachael Rollins has pledged to decline to prosecute, either by dismissing at arraignment or diverting through a non-criminal proceeding, program, or outcome. As we’ve seen every week since we began observing, this means almost half the cases we observed this week involved only crimes that District Attorney Rollins has identified as low-level, non-violent crimes rooted in poverty, mental illness, and addiction.

Our digest again focuses on the data courtwatchers collected about cases that exclusively involved charges from DA Rollins’ Decline to Prosecute list.[2]

​Reminder: under the umbrella of cases that DA Rollins pledged to decline to prosecute, we categorize cases that are dismissed outright as dismissals. Cases that are conditionally dismissed – with court costs, community service hours, or a treatment program – and therefore require a subsequent appearance in court are diverted cases. We remain concerned about the impact of imposing conditions which require time, money, or transportation on poor and working class people facing charges.

There were 90 cases involving ONLY charges on the decline to prosecute list this week.

• 42.2% of these cases (38 cases) advanced as criminal matters.
• 38 of these cases were dismissed at arraignment.
• 14 of these cases were diverted at arraignment
• Therefore, a total of 52 cases, or roughly 57.7%, were declined within the meaning of DA Rollins’ campaign pledge.

After six weeks of monitoring and analysis in three BMC courts, we again see that DA Rollins has not made significant strides to progressively implement her list of charges to be declined.

We want DA Rollins to succeed in implementing her bold campaign pledge to decline to prosecute these minor offenses that comprise almost half of all criminal court dockets every week in the BMC courts where we observe.

Our First 100 Days project aims to hold her accountable precisely because we are excited at the prospect of transformation for our courts and our communities. More than 60 days into her administration, we remain concerned about when policies will be issued and implemented.
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Both in the press and in meetings with community members, DA Rollins’ office continues to promise that much-anticipated changes are coming. Compared to the rollout of policy by her peers—whether Larry Krasner in Philadelphia, Wesley Bell in St. Louis, or Andrea Harrington in Berkshire County, MA—DA Rollins has fallen behind.
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We are more than halfway through the First 100 Days. Her office remains without policy, even though DA Rollins has spoken publicly about the fact that as a District Attorney she is not hampered by any legislative body and can act swiftly as an executive to enact her vision.

For the sixth week in a row, the majority of dismissals were driving cases – 23 of the 38 cases (60.5%) that were dismissed. The other 15 cases dismissed at arraignment were incidents of trespass (9), shoplifting (1), disorderly conduct (2), wanton or malicious destruction of property (1), and drug possession (2).

In 3 of these dismissed cases, the person had spent time in jail, only to subsequently have their case dismissed entirely:

• In a trespass case, the man being arraigned had a default on the charge from January, but still the ADA asked for a dismissal conditioned on eight community service hours already completed. The judge dismissed in view of that prior service and without further conditions, but specified that the dismissal was post-arraignment because this person has a history of multiple trespass charges. A post-arraignment dismissal means charges will appear on a person’s records and they will have to answer ‘yes’ if they are ever asked if they have been charged with a crime.
• In a shoplifting case, the ADA asked for release on personal recognizance, but the judge dismissed it outright.
• In a drug possession case, the young Black man being arraigned had been enrolled in detox and the Salvation Army treatment program, but had a seizure while there and was transferred to a hospital for care. He was taken into custody because probation did not realize that he had entered into the treatment program. The ADA asked to dismiss pre-arraignment, which the judge approved.
  
  

We have coded these cases as outright dismissals because the individuals were not required to report back to court on a future date and the charges were dismissed. However, the fact that a judge in one case counted prior community service as “time served” and the dismissal was post-arraignment complicates this categorization.

As we discussed at length last week, while it’s appropriate that these cases were dropped, any time spent in detention is harmful. ADAs should stop bringing these charges altogether, or at the very least, ask that judges dismiss these cases outright.

Over the past six weeks we have seen very few outright dismissals for most of the charges on DA Rollins’ list. Even when a handful of cases involving drug possession or trespass or shoplifting charges were dismissed, usually many more of those charges remained criminal cases. For example, this week only 2 out of 15 possession charges were dismissed and 2 were diverted. That means 73.3% of this week’s possession cases proceeded as criminal matters.

Years of public health research has confirmed that “[t]he risk of overdose death after release from correctional facilities has been shown to be more than 10 times the risk in the general population.” And yet ​the police have the most resistance to dismissing possession and possession with intent to distribute cases, which besides driving offenses are also among the most populous charge categories on DA Rollins’ list to decline. These decisions are especially important to shifting the punitive culture of the courts. Abundant public health research identifies the risks and costs of trying to prosecute our way out of the opioid crisis, and DAs who chose to follow science instead of fear-mongering have seen dramatic, life-saving results.
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A majority of driving cases (73.2%) were declined this week at arraignment. Undocumented people are particularly vulnerable when arrested and arraigned on driving charges. It is our hope that declining to prosecute all driving charges will disincentive arrest so driving matters can be handled civilly like they are in many predominantly white suburbs.

We categorize any dismissal that included conditions requiring a future court appearance as a diverted case in an effort to more accurately represent the data we collect.

This week 14 cases were diverted. Every disposition involved at least one condition, like treatment; a court fee; community service; or probation. ADAs usually refer to these cases as “conditional dismissals,” but individuals were generally required to report back to court at least once on a future date to prove compliance with the condition. Additional appearances cause stress and strain on families that could be avoided by outright dismissals.
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Much like dismissals, half of the diversions were driving cases – 7 of the 14 (50%) cases diverted this week. For driving cases, judges usually gave the person an option of returning with proof of license/registration/insurance, paying a fee between $50 and $150, completing community service, or enrolling in driving school.

The case of larceny under $1200 which was referred to probation for a diversion evaluation was charged against a 20-year-old high school student. A legislative Task Force is currently evaluating raising the age of juvenile court jurisdiction to include emerging adults ages 18 to 20, consistent with a vast body of neuroscience research about brain development among juveniles and young adults. Especially because this individual is so young and should be encouraged to focus on school, additional conditions and obligations may do more harm than good. DA Rollins should reconsider whether diversion is truly preferable to dismissal in all cases, but especially a case like this.

We also note that, though DA Rollins emphasized during her campaign the need to get people access to services, not hand down sentences, we often see punitive conditions (court costs and community service hours) to address what DA Rollins has identified as root causes in many cases like these: poverty, addiction, and mental illness. Especially in theft cases, where poverty or addiction may be a primary driving factor of the underlying conduct, imposing even a $150 fee can prolong someone’s court involvement and compound their hardship, keeping them off the path to stability or recovery. In other cases, defense attorneys may file motions to waive such fees and prosecutors may agree or recommend to the judge that the fees be waived.
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Finally, as we have said before, completing community service within the requisite timeframe may mean people need to call out of or cancel work, miss classes, or arrange childcare. Though many judges allow individuals to do community service at a place of their choice, some mandate that individuals serve through the state-run program that requires manual labor and is only offered on certain days.

It’s important to note that this kind of community service has no restorative value and is imposed before a person has been convicted of any wrongdoing. Pre-arraignment community service is simply a punishment for being arrested.

 In 17 cases that advanced as criminal matters, the person being arraigned was released on personal recognizance. In many such cases, the court also imposed conditions—especially common was a stay away or no contact order for the place of the incident or a person involved. Sometimes a person is required to stay away from their own home or a major transit hub through which they have to commute.

In 4 cases exclusively involving charges DA Rollins pledged to decline this week, bail was set. Bail amounts ranged from $100 to $400. In 2 of these 4 cases, the individual being arraigned was facing charges of drug possession and/or possession with intent to distribute. We’ve seen repeatedly that the Suffolk County District Attorney’s Office continues to treat drug charges like these as a serious crime, even though they are among the charges to be declined.

In the remaining 17 cases, we don’t know the final release decision or case outcome because the arraignment was continued—i.e. postponed to a future date or time (5 cases), the person being arraigned remained detained (despite the judge deciding to release them on personal recognizance on the pending charges) in order to resolve a warrant in another court (1 case), the person did not appear for arraignment and a warrant was issued (8 cases), the person had their bail revoked on a prior case and was held for transport to another court (1 case), or the courtwatcher wasn’t sure what happened (2 cases).

We note that people not showing up for arraignment happens rarely, and that courts don’t have to verify that a person actually received a summons before issuing an arrest warrant—a disturbing practice we hope DA Rollins will push to change. Our observed non-appearance rate among these minor charges was 8 cases out of 90, a rate of just 8.9%.

Our data collection on bail may undercount people who have already paid bail at the police station. Courtwatchers have not always been able to reliably document when someone has already posted bail, and in what amount, if they freely walk into court. This is not always explicitly addressed on the record.

Bail is set at the police station by court clerks. How bail amounts are decided is not transparent to the public and bail is set with very little oversight.
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In two of the cases this week in which bail was set at arraignment, the judge simply reaffirmed what the bail magistrate had already imposed, which the person had already posted.

In 15 of these cases, the person being arraigned was in jail at the time of arraignment. Among those 15 individuals,

• 3 were released on personal recognizance,
• 3 had their cases diverted, and
• 5 had their cases dismissed.
  
  

The remaining 4 people were assessed bail (1), held for transport to another court for an open warrant (1), held for transport to another court for an open warrant with bail revoked on a different case (1), or the case was continued (1).

In other words, 11 people spent time in jail and ultimately were not prosecuted or were released; they were detained without an ability to shower, change clothes, see their kids, walk their pets, take their medications, or communicate with their jobs or families—only to have a judge determine there was no good reason to detain them.

Further, this means in 73.3% of cases in which a bail magistrate declined to release someone this week, the judge released the individual or diverted or dismissed that person’s case. After 6 weeks of observing this phenomenon, our data support our assertion that clerks set bails too often and too high at police stations.
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While clerks make decisions to set bail at police stations independently of the DA’s office, we hope that District Attorney Rollins will both express her contempt for pre-trial detention and implement a strong policy that avoids pre-trial detention at all costs.

​This week courtwatchers observed many cases where the person being arraigned did not appear, and therefore racial demographic observations were impossible. Courtwatchers noted demographics in only 64 of the 90 decline to prosecute cases

​Black defendants are once again astronomically overrepresented compared to the population (this week by a factor of 2:1), while white defendants are starkly underrepresented.

Each week we see a number of cases rooted in social or administrative issues that are frequently dismissed and which DA Rollins should consider adding to her pending list of charges to be declined. For example, 6 cases observed this week were for drinking in public, a minor ordinance violation; 3 cases this week were for juror failure to appear. All 9 of these cases, representing roughly 5% of all criminal cases observed this week, were dismissed. Without question, these cases should not be prosecuted.
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If a person misses court, even on a minor charge, ADAs continue to ask for judges to issue a warrant. A minor charge plus a missed court date should not subject someone to arrest or even jail. At the very least, ADAs should dismiss these charges pre-arraignment; ideally they should stop bringing these charges altogether.

As stated above, 38 cases involving only charges to be declined were not dismissed or diverted. Those cases should also be declined, and we hope that this will change in the weeks to come.

Courtwatchers observed 4 cases involving charges from the decline to prosecute list in which an ADA asked for bail. We again emphasize that ADAs should always recommend release on personal recognizance in cases when the person is not a flight risk and should never request bail for charges on the do not prosecute list.

Courtwatchers documented 30 cases this week involving charges from the decline to prosecute list in which ADAs asked for conditions instead of dismissing the case outright. Further, courtwatchers documented 17 decline to prosecute cases in which ADAs asked for release on personal recognizance—intentionally continuing the case as a criminal matter.

Finally, we saw 1 case in which an ADA successfully requested that bail on a prior case be revoked for a person facing new charges of trespass, threats, drug possession with intent to distribute, and resisting arrest. Because his bail was revoked, this man will now be held for 60 days without the possibility of release. We acknowledge that the ADA did not request bail on the new charges, but he did demand that this man facing charges exclusively on the decline to prosecute list spend 2 months in jail pre-trial, without any safety valve for release. DA Rollins should monitor this practice among her ADAs and prevent this from happening again. Just as we advocate that bail should never be set on a charge to be declined, bail should likewise never be revoked in connection with a docket involving this set of charges.
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In all cases, we hope ADAs seek the least burdensome outcome that will resolve the case. For all 15 charges DA Rollins has identified, we believe cases should generally be dismissed without conditions.

Despite public posturing on quick reforms and public pledges on specific policies—an ICE security policy in place within 30 days; a memo last month on charges to be declined; bail policy—there have been no publicly issued policies.
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We have long-passed DA Rollins’ own benchmark of six weeks, the time it took DA Larry Krasner in Philadelphia to issue his first policy memo. We are publishing this digest late; we are now well into week 9 without any office policy.

DA Rollins has done little to disrupt the status quo in Suffolk County’s district courts, which continue to churn through minor cases and disrupt people’s lives with time in jail, punitive conditions, and unnecessary, knee-jerk arrest warrants for court absences.

The Suffolk County District Attorney’s Office is still actively prosecuting people for the 15 crimes DA Rollins pledged to decline. DA Rollins knowingly continues to criminally prosecute these cases. It is difficult to square her public statements with the reality of what is happening in our courts. In many cases folks face court costs or community service hours to resolve their cases and are given future court appearances to prove compliance.

We have now published six weeks of data analysis. As of our date of publication, DA Rollins has already been in office for more than eight weeks. She ran on a platform of transparency and she has spoken candidly about supporting CourtWatch and the push for accountability, yet we have seen (1) no published data from the SCDAO; (2) no policy; and (3) no training for ADAs. Further, we know that her office is not presently tracking data to be able to remedy the harm done over her first 2 months.

DA Rollins recently announced that her office will be holding quarterly town halls to share reports out of the office, answer community questions, and take suggestions. The first town hall is scheduled for March 28, 2019.
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This effort at transparency and community engagement is a positive step, but if DA Rollins aims to run a transparent office she must: (1) publish SCDAO internal data, (2) publicly issue office policy, and (3) put in place a plan to make policy retroactive by revisiting all prosecutions her office undertook over her first two months.
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We’re waiting. And we’ll be watching.

[1] This week we again removed cases from our dataset representing status hearings, diversion check ins, restraining orders, probation violations, or other types of hearings that were not initial arraignments. We again note that the total number of hearings observed is not the total number of arraignments which transpired in those courts. For a full count of arraignments, you can view sparse information about all criminal cases, by court and date of filing, at masscourts.org. Select the court, use the “case type” tab, select the relevant date(s), and select both “criminal” and “criminal cross site” as the case type. For the same period (February 6th to February 12th), a search on MassCourts reveals 111 cases out of BMC Central, 72 cases out of Roxbury, and 97 cases out of Dorchester, for a total of 280 cases filed this week. We note that this number also does not reflect the total number of cases arraigned in these courts; courtwatchers also observe arraignments of older dockets with some frequency.

[2] Because of limited capacity of the CourtWatch MA team, we again did not verify every case against the limited available charge information on masscourts.org. We have verified the charge in any case where the courtwatcher left the charge blank, did not hear the charge, or noted that reading the charge was waived in court. It is of course possible courtwatchers misheard the charge(s) in any given case; we reiterate that our data collection is not a substitute for open government and we are very hopeful that District Attorney Rollins will release data tracked by the Suffolk County District Attorney’s Office with some regularity going forward.

[3] Courtwatchers write down demographic information (age, race, gender) based on observation alone; we recognize that this is an imperfect way to determine markers of identity. We ask courtwatchers to note this information because (1) courts are unlikely to disclose this information even if we requested every docket; and (2) the system operates based on an individual’s outward perception and expression, regardless of their stated identity, so demographic observations are a reasonable methodology for this particular project. We again reiterate that courtwatchers can select as many racial demographic markers as apply.