PITTSFIELD — Last month, I joined 82 present and former prosecutors, law enforcement officials, Department of Justice leaders and judges from 33 states in filing an amicus curiae ("friend of the court") brief in Daves v. Dallas County, a case in the U.S. Court of Appeals challenging the constitutionality of cash bail. I then began implementing a series of policies and practices within the Berkshire County district attorney's office to replace the unjust and ineffective use of cash bail with a safer and more equitable model to ensure individuals who commit non-dangerous offenses return to court. Berkshire County will be a model for the safe and effective elimination of the cash bail system.
A wealth-based cash bail system is unfair and un-American. Detaining people pretrial who pose no danger to the community based solely on their financial condition not only erodes the presumption of innocence but also undermines the integrity of the criminal justice system.
The most glaring example of the failure of the cash bail system stems from the well-documented correlation between race and wealth in America, an injustice that is endemic here in our community. A 2015 study by MassInc., an independent, non-profit research organization, found that in Berkshire County, the median bail amount for black defendants was set at $5,000, while the median bail amount for white defendants was $1,000.
FUNDAMENTALLY UNFAIR
People who are held pretrial on cash bail for minor, non-violent offenses face devastating consequences. They often lose their jobs and housing, cannot provide or care for their families and are denied critical treatment for the mental health and substance use issues that may have led to their charges. People who are held pretrial in the House of Correction do not have access to programing and are often denied treatment.
More importantly, detained defendants are more likely to plead guilty for reasons that have nothing to do with their underlying guilt just to expedite their release from jail. Berkshire County women who are jailed an hour away in Chicopee are even more cut off from their families and legal counsel and disadvantaged in mounting their defense due to this distance. These practices violate fundamental notions of fairness, and they are counterproductive to providing therapeutic treatment and services that create a healthy and safe community.
During the campaign, I promised voters that I would modernize the Berkshire County district attorney's office by enacting policies based on fairness and proven data. The data on cash bail overwhelmingly demonstrates that it drives up incarceration, creates devastating outcomes for those detained and their families, and does nothing to enhance the health or safety of communities. After rigorous study, both the American Bar Association and National District Attorney's Association have recommended release over detention whenever possible. In light of the extraordinarily high cost of incarceration in Massachusetts, we simply cannot afford to be holding people when it serves no purpose.
Jurisdictions that have moved away from cash bail have actually experienced lower failure-to-appear rates. Since Kentucky passed a law in 2011 requiring the pretrial release of all individuals considered low- and moderate-risk for reoffending or flight, it has seen the number of people arrested while on release decline every year. And in his first year in office, Philadelphia District Attorney Larry Krasner ended requests for cash bail for a variety of misdemeanor and felony charges. A new study found that Krasner's policy resulted in fewer pretrial detentions and did not lead to additional criminal conduct. And defendants released on recognizance successfully showed up for court in similar numbers as compared to those released during the previous administration.
Cash bail does not keep our communities safe. I believe in our justice system and that those who commit crimes will ultimately be held accountable but, under Massachusetts law, the only reason a defendant can be required to post cash bail is to assure their reappearance in court. Philadelphia provides critical evidence however, that cash bail has no discernible effect on whether an individual will show up to court.
Cash bail also is not necessary to keep our community safe. Many argue that it is needed to keep those who present a danger to the community off the streets. Yet, Massachusetts has a separate law — commonly called the "dangerousness statute" — that refutes this claim. This statute allows courts to hold defendants without bail based on a demonstrated threat to the safety of another or the community and provides a fair process that leaves the ultimate decision about detention in the hands of a judge. As a matter of safety, my office will continue to be aggressive in both our requests for dangerousness hearings and the litigation of those hearings when pretrial detention is in the interests of public safety. We will also continue to seek pretrial detention of people charged with drug trafficking as well as offenses involving violence, threats of violence, or firearms (or a history of such crimes).
SPECIFIC USES OF BAIL
I promised voters I would modernize the Berkshire County district attorney's office by instituting policies based on fairness and evidence. In keeping that promise I've instructed prosecutors to only seek bail when the defendant is a flight risk and no other reasonable conditions to ensure their appearance in court exist. Furthermore, I have implemented a system to track bail requests. This will provide us with the data needed to ensure consistency and transparency.
I will also continue to fight for adequate funding for pretrial services that have objectively proven to be effective, like the District of Columbia's pre-trial supervision program, in which 88 percent of defendants remained fully compliant with the terms of their pretrial release in 2016. Finally, I will work with the courts and legislature to develop new, effective methods to ensure defendants appear in court, such as Gov. Baker's proposed legislation to require courts to develop a text message service to remind defendants of upcoming court dates.
I ran on a promise to lead in building a healthy, safe community not through convictions alone but through smart solutions that result in justice. That begins with a smart bail policy that addresses the underlying reasons why people commit crime, treats everyone fairly, and protects our community.
Andrea Harrington is Berkshire County district attorney.
