Berkshire County joined a national movement this month when its district attorney implemented a no cash bail policy.
Democrat Andrea Harrington announced February 22nd that her assistant DAs had been instructed not to seek cash bail. She framed the move – which fulfilled promises made during her 2018 campaign – by describing a “immoral” criminal justice system with separate tracks for the rich and poor.
“People talk a lot about the criminalization of poverty as a critique on the criminal justice system, and the way that that critique plays out every day in courts in Berkshire County and across Massachusetts are when people are held who have not been found to be guilty of a crime – they’re accused of a crime – but it’s pretrial and people are held for non-violent offenses on low level bail of under $500 because they can’t afford to pay the bail,” Harrington told WAMC.
ADAs will now have to justify requests for cash bail in instances where defendants are considered a flight risk or dangerous.
“Money bail is on its way out," Jon Wool told WAMC. "I think most people who have watched criminal justice systems evolve see that its days are numbered and should be.”
Wool is the Director of Justice Policy at the New Orleans office of the Vera Institute of Justice – an independent national nonprofit that has been working on criminal justice issues since the 1960s.
“I think one has to start with the federal system, which has outlawed the detention based on a person’s inability to pay money for at least three decades, and so every place in the country in the federal courts, money can’t be set in amount that leads to a person’s detention,” said Wool.
Wool says from Washington D.C. to New Mexico, state and local systems are also working to eliminate cash bail, which he describes as “the main driver of excessive incarceration at the local level.”
“The state of New Jersey, beginning in 2017, virtually eliminated money bail in all its forms and has had excellent results – a reduction in unnecessary incarceration by about 30 percent over those two years with declining crime rates, both violent crime and overall crime rates,” he said.
In California, efforts to eliminate money from the bail system have met opposition from the bail industry. Wool says for-profit private companies working alongside the criminal justice system are motivated by revenue, not public interest.
“Bail bondsmen have their livelihood depend on putting a price on people’s freedom, and reaping the benefits when people are able to pay," he told WAMC. "But they don’t bear the burden of the cost that all taxpayers pay on jails that are larger than they need to be, larger than anywhere else in the world, of course, incarcerating people who aren’t dangerous, who are simply unable to pay the price.”
Beyond that, Wool says cash bail can make communities more dangerous – strictly on the basis of who can afford it.
“When somebody is truly dangerous, money bail allows them to decide whether they can get out or not," said Wool. "When a judge sets a money bail, it’s an order to release the person. And if they have the money, they get to go home, and when somebody is too dangerous to be in the community, we’ve given up the opportunity to ensure that they are in fact detained.”
“The purpose of bail is to guarantee appearance," counters Jeff Clayton. "And it shouldn’t be used in every case, but when a judge has concerns that somebody’s not going to show up for court, they should impose an appropriate bail.”
Clayton is the Executive Director of the American Bail Coalition. He sees bail as a constitutional right and a vital tool for judges. The prevailing alternative to no money bail is preventative detention, which gives judges broad authority to detain defendants. Clayton says this poses a threat in and of itself, saying it will give the government more power to detain more people.
“I think the no money bail movement has hit a crescendo, and I think people are beginning to second guess whether replacing cash bail with this other system is better or whether we have to look for other alternatives," he told WAMC. "And what one public defender told me is we should have more doors out of the jail not fewer ways out, and for that reason we should keep bail but also find other alternatives for people – and that’s probably where it’s going to end up going.”