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Amending The Valor Act And Rethinking Bail Practices In Massachusetts

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The Congressional Medal of Honor, the highest award for valor in action against an enemy force given to an individual serving in the Armed Services of the United States, is shown in this undated photo.
Associated Press
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WGBH Legal Analyst and Northeastern Law Professor Daniel Medwed joins WGBH's Morning Edition each week to discuss legal decisions and appeals within the court system, state legislature, and congress. Below is a transcript of this week's conversation. 

Joe Mathieu: State Senator Michael Rush is working to amend something called the Valor Act, which protects veterans accused of violent crimes from punishment. Here to talk to us about this and more is WGBH News Legal Analyst and Northeastern University Law Professor Daniel Medwed. Good morning, Daniel, welcome back.

Daniel Medwed: Good morning, Joe.

JM: This is one of the stories we're covering today. Because a man from New Bedford accused of assaulting his girlfriend was cleared of charges because he was a veteran. The victim's attorney called this law a "get out of jail free card," and now we're understanding that it could be amended. Is that an accurate analysis, "get out of jail free"?

DM: I wouldn't call it a get out of jail free card, but maybe a get out of jail at a discount. Because what it does, this is a law that was passed when Governor Deval Patrick was in the State House. And it was designed to give trial judges wide latitude, discretion to award rehabilitation or counseling to veterans in lieu of jail. You still have to do something, rehabilitation or counseling, and it only applies to district court or municipal court cases — low-level cases. So it's not for free, you still have to do something, but it is a discount.

JM: So he wants to create exceptions, essentially, for violence against an individual?

DM: Excellent. Right now there are very few exemptions in the Valor Act, basically just crimes against the elderly and certain recidivists, or repeat offenders. What Senator Rush wants to do, as well as a few other legislators, is expand the blanket of exemptions to cover all cases that could involve crimes against people. There's also some talk of making sure there's an exemption for some drunk driving cases, because it could apply to drunk driving cases.

JM: Daniel Medwed, we turn to bail reform this morning. Defendants must also post bail in order to be released from jail while they're waiting for trial, this is pretty common. Last week, the Middlesex County District Attorney Marian Ryan announced she would no longer be seeking cash bail in cases involving low-level nonviolent crimes. How does bail typically work, to start off here?

DM: In Massachusetts, it's typically cash bail. You have to put up money, a check or a credit card, and then you forfeit that money if you don't show up at trial. What's happening with Marian Ryan is really interesting. There's a growing recognition across the country that current bail practices disproportionately impact people of limited financial means. If you don't have the money to post bail, you might stay in jail, you'll plead guilty to a crime you maybe didn't commit to just get time served as part of your deal and get out, or maybe you'll remain behind bars, lose your job, lose your home. So Marian Ryan has pledged that in her office, it will no longer seek cash bail for low-level crimes, property, larceny, simple drug posession cases, and that could affect about 200 cases per week in Middlesex county.

JM: How would this actually change bail practices then, for Middlesex County?

DM: I think what would happen, and this is really interesting, is that if a judge is thinking about releasing somebody, as opposed to keeping them in jail pending trial, the person would be released on his or her own recognizance, with no insurance, no guarantee designed to get them to come to court.

JM: So this could be a significant impact?

DM: It absolutely could be.

JM: Similar trends are occurring nationwide. Why is it so popular now? Why now?

DM: It's a great question. At this time of unprecedented political strife and turmoil, this is an area where there can have some bipartisan appeal. On the one hand, you have progressives concerned about the poor and people of color. There's some data suggesting that African Americans pay on average 35 percent higher bail than whites. Then on the other hand, you have conservatives who are worried about the money. The costs of incarcerating people pre-trial who aren't really flight risks, who aren't really menaces to society.

In fact, there was a bipartisan bill filed in Congress last year, jointly sponsored by — get this — Kamala Harris, Democratic senator from California, and Rand Paul, Republican Libertarian senator from Kentucky. This is an area of the law where you can find a just, fair, and cost-effective solution.

JM: Cats and dogs living together. Always a pleasure to cover some of this stuff with you, Daniel, because these stories can impact a lot of different conversations that we're having, whether it's bail reform or in this case the Valor Act. Do you think these amendments, getting back to to where we started, will in fact have support on Beacon Hill? You seem like you're speaking basic logic here.

DM: I think so. The Valor Act has a lot of terrific purposes. It recognizes that military veterans suffer from unique traumas, PTSD, that could lead to low-level criminal activity, and we should have some accommodations for them. But on the other hand, when it comes to crimes of violence, perhaps we shouldn't give them, not a get out of jail card, but a get out of jail at a discount card.

JM: Got it. Daniel Medwed, WGBH legal analyst and Northeastern law professor.

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