Harrington implements no-cash-bail policy for most defendants in county courts

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PITTSFIELD — People facing criminal charges in Berkshire County district courts no longer will be required to post bail while awaiting trial — provided that they are not deemed flight risks.

Following through on a promise she made on the campaign trail, Berkshire District Attorney Andrea Harrington has directed prosecutors to stop requesting that such defendants be held in lieu of bail. The policy officially was announced Friday.

"This is a movement that is going on across the entire country," Harrington told The Eagle. "Cash bail is not an effective way to get people to return to court. We know that there are better ways of getting people back to court."

In Massachusetts, the purpose of bail is to make sure that a person accused of a crime will come to court for pretrial proceedings related to their case. While bail isn't a form of punishment, because the defendants haven't yet been convicted of a crime, it can result in them being detained for long periods of time if they are unable to pay. Recent state legislation requires that a defendant's financial state be considered when setting bail, but Harrington decided to take that a step further by limiting bail requests to the rare exception when a defendant is a known flight risk. For those who are a flight risk, there are no reasonable conditions of release that would prevent them from fleeing before trial.As for the defendants who pose a threat to public safety, that's what the dangerousness statute is for, Harrington said. When prosecutors believe that an individual accused of a crime is a threat to himself or others, they will request a dangerousness hearing, and, with judicial approval, the person can be held for up to 120 days without bail. In the past week, Harrington's office made at least two dangerousness requests, she said.

"I can't say how that compares to the prior administration, because the data isn't there," she said. "My sense is, we will be seeking to hold people as a danger in more cases than in the past."

The additional requests will not be enough to overwhelm the system, she said.

As a second prong of the new policy, the office will ensure that it is collecting data on who is being held on bail, when it is requested.

A 2015 study by MassInc., a nonprofit research organization, found that the median bail for black defendants in Berkshire county was set at $5,000, while for white defendants it was $1,000.

To ensure that those defendants who are deemed a flight risk are treated equitably, prosecutors will be required to complete a document justifying the need to require bail. These forms, which Harrington's office developed in consultation with a bail reform group, will include demographic and other information. The documents will be reviewed by supervisors as a learning tool.

While the policy rolls out, Harrington's office will continue to partner with members of law enforcement and probation officers to determine the best route to take with specific individuals who might have had previous interactions with the system, she said.

"One of the biggest things that has impressed me since becoming the district attorney is the amount of work law enforcement puts into their investigations, and I have a whole new respect for that," Harrington said. "Ultimately, [bail] is a legal decision. It is up to the district attorney."

Pittsfield Police Chief Michael Wynn declined to comment last week on the policy, as the department hadn't yet been formally notified of the change. Messages left for North Adams police and Berkshire County Sheriff Thomas Bowler were not returned Friday. The Massachusetts Police Association requested additional time to review the formal policy before commenting.

In Superior Court cases, where convictions often result in longer sentences, prosecutors will request that defendants charged with violent crimes, fentanyl trafficking or firearms offenses be held without bail as a danger, Harrington said. For people who are not held on serious charges in Superior Court, prosecutors will continue to request high bail, with the presumption that because the consequences are greater, they are more of a flight risk than District Court offenders, she said.

The office also will work with Superior Court probation in coming up with alternatives to cash bail, she said.

The movement

The United States is one of two countries that relies on cash bail to hold defendants pretrial; the other is the Philippines. In the U.S., Kentucky, New Jersey, California and the District of Columbia have made moves through their legislatures to reduce or eliminate cash bail in a majority of cases.

Individual districts have taken it on as well.

In Philadelphia, District Attorney Larry Krasner instituted a data-driven reform policy 50 days into office. Despite 1,750 defendants being released without cash bail in 2018, the policy didn't lead to an increase in recidivism rates or the rates of individuals who showed up for court, according to a report released this month.

"I think it's certainly on the forefront of what the DA's offices are doing across the country," Colin Doyle, staff attorney at Harvard Law School's Criminal Justice Policy Program, said of Harrington's policy. "Whether someone is in jail pretrial or released shouldn't depend on the money they have in their bank account."

Through the Criminal Justice Policy Program, Doyle compiles research on bail statutes nationwide. On Monday, the group will release a nearly 100-page "bail guide" for state and local policymakers.

In the guide, the group urges lawmakers to consider implementing new, less-restrictive methods of ensuring that defendants show up to court.

"Eliminate cash bail. That's kind of been the rallying cry," Doyle said. "And for obvious reasons."

On any given day, there are just under 5 million people being held on cash bail in the United States, "most of them on bail they can't afford," Doyle said.

Those who are held pretrial have been found to be more likely to commit crimes in the future when they're released, according to Doyle.

While incarcerated, people are more likely to lose their jobs, housing — and, potentially, custody of their kids, he said.

"The average jail stay is 25 days," he said. "It's not a long time, but it is enough time that it really disrupts their life."

Many of those who oppose the elimination of cash bail fear that it will result in people not showing up for court and an increase in violent crime, but data show that's not the case, Doyle said.

"There doesn't seem to be any kind of link between money bail and increase in violent crime," he said. "It seems to go in the other direction."

Elie Honig, former director of the Department of Law and Public Safety at the New Jersey Division of Criminal Justice, led the effort that resulted in statewide bail reform more than two years ago.

That effort was met with massive opposition, primarily from members of the bail bondsman industry, who claimed that the reform would result in spikes in crime.

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That proved not to be the case, he said. One year into the reform, violent crime had decreased by 5.6 percent, he said. It looks like it will have gone down even more in 2018, Honig said.

Unlike Massachusetts, before recent reform, all New Jersey defendants had been held on a monetary bail. There was no procedure to hold them without bail as a danger, he said.

Now, less than half of 1 percent of defendants — those who are flight risks — are still held on cash bail. A majority of people are released with pretrial conditions like mandatory curfews and probation-reporting requirements. Individuals who judges deem to be a danger to the public — about 6 percent of defendants statewide — are held without bail, he said.

"We got tons of opposition, especially in the early parts of the implementation," Honig said. "Bail bondsman are gone. They fought us like mad."

"Now, two years in, there's a like-it-or-not acceptance," he added. "There are all sorts of positive assessments. Even those who objected have sort of gotten over it at this point."

In Massachusetts

Massachusetts has made moves to limit the instances in which cash bail is used to ensure that indigent individuals are held pretrial, but most of the 11 district attorneys continue to seek monetary bail. But some district attorneys are working to eliminate it in their jurisdictions.

Middlesex District Attorney Marian Ryan announced in January 2018 that her office no longer would request cash bail in nonviolent, low-level cases in District Court.

Like Harrington, newly-elected Suffolk County District Attorney Rachael Rollins campaigned on a bail-reform platform.

While Rollins hasn't yet implemented an official policy, she still aims to divert some of the most low-level, nonviolent offenders away from the criminal justice system and "minimize the use of cash bail to the greatest extent possible in the remainder," spokesman Jake Wark told The Eagle on Friday.

"She and her team have been finalizing specific policies toward that end that we expect to get to the court staff soon," Wark said.

Harrington, too, is finalizing specifics on the policy, including working with the probation department to come up with a thorough list of pretrial release conditions for defendants.

"I applaud DA Harrington for taking this step," said Daniel S. Medwed, university distinguished professor of law and criminal justice at Northeastern University. "Nationwide, there is a progressive movement afoot to end cash bail altogether, given the sense that it `punishes poverty' — people too poor to make bail will be detained pretrial, lose jobs, feel pressure to plead guilty and so on, while those who can afford bail can mount a vigorous defense without those obstacles."

"It's a progressive trend and it's a very good idea," added Anne Goldstein, a law professor at the Western New England University School of Law. "Whether or not someone is released pretrial makes a tremendous outcome on the rest of their case."

David Rossman, director of criminal law clinical programs at the Boston University School of Law, acknowledges that the new policy makes sense, but he is curious whether it will increase the number of defendants who are held without bail as a danger.

"The policy is only going to be as efficient as the people who put it into practice," he said. "Dangerousness hearings have a higher standard of holding people than bail."

Going forward, Rossman would like to review how often prosecutors in Berkshire County are requesting dangerousness hearings and whether judges are granting every request or continuing to follow the higher standard.

Going further

A majority of people who miss court dates aren't doing so because they are trying to evade the criminal justice system, and there is nothing to indicate that eliminating cash bail would make them show up less, Doyle said.

"Of the mechanisms to ensure people show up to court, money bail is not an evidence-based practice," Doyle said. "The simplest one is text to phone or email reminders."

More than 10 years ago, Multnomah County, Ore., reduced its missed-court appearance rates by 31 percent by implementing automated phone reminders, according to a report by the county's Local Public Safety Coordinating Council.

A similar study in New York City found that text message reminders increased appearance rates by 26 percent, Doyle said.

"It's so simple. Your dentist's office, your doctor's office, sends you a reminder," Doyle said. "Your court system sends you an arrest warrant if you miss a court date."

In January, Gov. Charlie Baker refiled Protect Communities from Dangerous Individuals legislation. The proposed legislation requires courts to develop a text message service to remind defendants of their upcoming court dates.

Harrington pledged to work with the courts and Legislature to create and implement the new methods to communicate with defendants. She will continue to advocate for the Legislature to implement statewide reform as well.

But until then, she said the office will work with the probation department and defense attorneys to ensure that every defendant is aware of their next hearing, she said.

"It can be very difficult to keep in contact with people who have criminal matters pending, because a lot of those folks are struggling," Harrington said, referring to addiction, homelessness and other issues. "CPCS [Committee for Public Counsel Services] is very successful about getting clients to court, and that's because they put a lot of effort into communicating with their clients."

Honig called Harrington's approach to take on bail reform on a district level "an interesting approach." In order to ensure that the reform is permanent, though, it needs to be taken on by the Legislature, like in New Jersey, he said.

"I guess I'd say that's another way to get it done. It's not as clean a solution," he said. "Its an indirect way to get the same results."

"If the state takes it on, then it's the law," he said.

Haven Orecchio-Egresitz can be reached at horecchio@berkshireeagle.com, @HavenEagle on Twitter and 413-770-6977.


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