Shortly after taking office, Berkshire District Attorney Andrea Harrington announced a policy shift. Prosecutors would stop requesting bail in most nonviolent cases. Now, a couple of years later, only a few defendants are held on bail. But there’s been a sharp increase in the use of another legal maneuver to keep people behind bars before trial.
Holding people because they can’t afford bail is un-American. That’s what Harrington said in an interview two years ago on NEPM’s Connecting Point.
“It’s discriminatory against people who are impoverished,” Harrington said. “That’s clearly inequitable and it’s unfair and it really does not keep our community safe.”
Cash bail is still used in some cases. For instance, those held on bail this month in Berkshire County jail include people charged with child rape, human trafficking and arson. But according to defense attorneys, prosecutors request cash bail far less often now.
Mohammed Memfis, a Williams College senior, helped start CourtWatch, criminal justice reform program, in Berkshire County. He said the DA’s new policy was definitely welcome.
“Cash bail is a harmful system,” Memfis said, “that disproportionately and negatively impacts racial minorities and low-income people.”
As part of his work with CourtWatch, Memfis observed hearings in two Berkshire County District Courts. He remembers being surprised how often another mechanism was used to hold people before trial.
“There’s been a spike in the use of dangerousness hearings,” Memfis said.
Under Massachusetts law, a DA can request a dangerousness hearing for certain crimes, including those involving physical force. A judge decides whether a defendant is a danger to an individual or to the community and whether the only way to ensure safety is to hold the defendant behind bars pretrial.
“But when you start using dangerousness hearings — well, then people are still going to end up in jail and behind bars when they actually don’t need to be and when they don’t pose any sort of risk,” Memfis said.
According to the Massachusetts Trial Court, in fiscal year 2018 — before Harrington took office — there were 53 dangerousness hearings in Berkshire County’s District Courts. In fiscal year 2020, the first full year of the new bail policy, there were 151 — nearly three times as many.
In Superior Court, the increase was nearly fivefold. There were seven dangerousness hearings in fiscal year 2018 and 34 in fiscal year 2020.
‘Balance safety with reform’
After announcing the end of cash bail, Harrington made no bones about using the statute.
“My office has been very aggressive in requesting that the courts hold people that we feel are dangerous. And we present live testimony, we prepare our officers, we present exhibits, and we’ve been very effective at that,” Harrington said in the Connecting Point interview in May 2019.
Harrington declined to be interviewed for this story. In an email, her office said they “balance safety with reform by eliminating the use of cash bail and requesting that dangerous individuals be held pretrial pursuant to the dangerousness statute.”
Some criminal defense attorneys in Berkshire County said they’re concerned about the jump in the number of dangerousness hearings.
“It doesn’t get much more of an infringement on civil liberties,” said Michael Hinkley, a defense attorney who works mostly in Pittsfield District Court. “That is, people are being held by the government. They haven’t been found guilty, they haven’t been adjudicated guilty and — in some cases — they’ve been held longer than the law allows given the pandemic.”
By law, a person can be held as dangerous up to 120 days in a District Court case or 180 days in Superior Court, which handles more serious cases. But after COVID-19 hit, a Supreme Judicial Court ruling allowed people to be held as a danger even longer because jury trials were suspended. Some courts still aren’t holding jury trials.
‘Times that it’s being used when it should not be used’
Attorney Gregory Barry represents people in District and Superior Court. He was a prosecutor under Harrington’s predecessors. He said in the past few years he has seen more requests for people to be held as a danger than he has ever seen before.
“When I was an assistant district attorney, I always took it very seriously before I asked for somebody to held as a danger, because I knew I was going to be depriving someone of their liberty,” he said.
Barry said there are definitely times when a defendant should be held as dangerous. But, he said, it should be used sparingly and that setting conditions for release could be used instead.
“Certainly if there is a restraining order in effect, or a ‘stay away,’ or a GPS monitoring or a curfew — those are all things that would assure the safety of a victim that could be asked for, as opposed to just asking to be held in jail without any right to getting liberty,” Barry said. “So I certainly feel there are times that it’s being used when it should not be used.”
Barry said when someone is held as a danger — especially during the pandemic with few jury trials — some clients may admit to something they didn’t do, hoping the judge will sentence them to time served and release them.
“Some people, they’re going to plead guilty to a crime whether or not they did it, because they have to get out of jail,” Barry said. “Being held in jail can have the consequence of losing your job, your house, or sometimes family members abandon you.”
Dangerousness hearings for domestic violence cases
The Berkshire DA’s office said it uses dangerousness holds most often in “serious domestic violence cases because the most dangerous time for a victim is after a court appearance.”
Hema Sarang-Sieminski is policy director of Jane Doe Inc., a statewide coalition against sexual and domestic violence. She said there is a lot known about what constitutes a high risk of severe harm or homicide in a domestic violence situation.
“In those cases, of course, dangerousness hearings can and should be utilized to support and protect survivors,” Sarang-Sieminski said.
At the same time, she said, if the goal of moving away from cash bail is to reduce the impact on low-income communities of color, then similar care needs to be shown when deciding whether someone is dangerous or not.
“I’m concerned when I see an increase in the use of those hearings, as we move away from cash bail, it feels like the needs and perspectives of survivors are being used as a way to circumvent deeper conversations about racial equity that we need to be having,” Sarang-Sieminski said.
The DA’s office said in an email that it requests a dangerousness hearing in about 3% of District Court cases.
Attorney Shannon Plumb defends clients in Pittsfield and Northern Berkshire District Courts. She said sometimes she can negotiate for a release with conditions — such as no alcohol or drugs — but often a defendant slips up, and ends up in jail, pre-trial, anyway.
“I see this as a real problem, because it was put forward as, ‘We were going to recognize defendants’ rights and we were going to recognize the issues with cash bail.’ But, in the same breath, they’re ... going forward with all these dangerous requests, that sometimes don’t end up to be a dangerous hold per se, but they end up getting all these conditions and all these pretrial limitations on the defendant that they wouldn’t normally get,” Plumb said. “And quite frankly, if there was a cash bail in place, they would have already had cash bail and they wouldn’t necessarily have had all these conditions. So, I see it as a smokescreen.”
A “backdoor” way, she said, to have people held pre-trial.
Sheriff Thomas Bowler runs the Berkshire County Jail. He was a Pittsfield police officer for 24 years and most of that time he was a detective in major crimes. He said courts should hold onto all of their options: detaining someone as dangerous or on bail.
“Why not utilize both? Because there are certain circumstances, obviously, where individuals may not meet the criteria for being held on dangerous, but the community is not as safe as it should be if they’re out in the public. So keep them here on bail,” Bowler said.
Peggy Kern is a criminal justice advocate who co-founded CourtWatch in Berkshire County with Mohammed Memfis. She supported Harrington’s candidacy in 2018, along with the DA’s move to end cash bail. But she said she is “very concerned about the increase in dangerousness hearings.”
Kern said she hopes the community is given more detailed information on how the statute is being utilized.
“I want to know what the charges are. I want to know the racial breakdown of people who are being held pretrial. I would love to know if there is an internal policy in the DA’s office around when it is appropriate,” Kern said. “There are a lot of questions that we just don’t have answers to at this point.”
We put those questions to the Berkshire DA’s office. They didn’t answer them. In an emailed statement, the office said their top priority is “to ensure the safety of the public and the victims.”