Of the many encouraging developments in pretrial justice recently is the growing number of prosecutors who are publicly acknowledging the limitations of money bail and the value of doing things differently.
Some—like Kim Ogg and Kim Foxx, of Houston and Chicago, respectively—are high profile individuals who have yoked their career to a vision of pretrial justice that is fairer and more effective. Foxx has been aware of the special responsibility that prosecutors have in establishing trust with the people they serve, saying “I think saying our bail system is broken and having the credibility with the public – who already know it – matters, and then it means I can get buy-in to actively work to fix those things.” Others have only recently come to accept change after it was thrust upon them. Two examples of the latter come from Maryland, where last year’s statewide rule change placed money bail at the end of the line, behind non-monetary conditions of pretrial release. Faced with several months of positive results, Baltimore County prosecutor Scott Schellenberger told the Daily Record, “The sky has not fallen.” The Frederick News-Post reported that Frederick County State’s Attorney Charles Smith, also an initial opponent of the change, conceded that he had seen “marginal good changes with no differences in failures to appear.”
In January, the New York Times reported that district attorneys in Manhattan, Brooklyn, and the Bronx were revising their policies to limit the use of money bail, especially for people charged with non-violent misdemeanors. “If we are not asking for jail, then we should not be asking for bail,” said Bronx DA Darcel Clark. Brooklyn District Attorney Eric Gonzalez went a step further, reversing a long-standing policy of automatically requesting policy, even when prosecutors seek jail time of less than a month.
Fair and Just Prosecution, a network of newly-elected prosecutors committed to “promoting a justice system grounded in fairness, equity, compassion, and fiscal responsibility”, has also gotten involved in pretrial issues. The organization gathered nearly 70 current and past prosecutors from 30 states to collectively file an amicus brief supporting a challenge to money bail in Harris County, Texas. Miriam Krinsky, executive director of Fair and Just Prosecution and a former federal prosecutor for 15 years, noted, “a new generation of prosecutive leaders…is increasingly speaking out regarding the need for a justice system that doesn’t treat individuals differently based on economic status.”
Ending money bail has even become a winning campaign issue. Larry Krasner ran for district attorney of Philadelphia on a promise to end cash bail for people charged with nonviolent crimes. He not only won handily, but subsequently received support from the city council in the form of a resolution supporting the reduction of reliance on cash bail. Atlantans elected Mayor Keisha Bottoms, who made bail reform a centerpiece of her campaign, and in February the city council passed a change to the city ordinances, eliminating cash bonds as a barrier to secure release, following an arrest for violation of city ordinances.
As more prosecutors call for the end of money bail, the challenge is to effectively implement a new model of pretrial release and detention. Prosecutors must contend with longstanding cultures favoring bail. In a Slate article recounting the disconnect between San Francisco’s top prosecutor opposing money bail while line attorneys still request money bail, Adam Foss, founder of Prosecutor Impact—and PJI board member—stated in the article, “to get [policy] to trickle all the way down to the line of prosecutors who are making those decisions on the fly is a difficult if not impossible thing to do unless every person in the office is onboard with the culture.”
David Labahn, a former deputy district attorney in Orange and Humboldt Counties and CEO of the Association of Prosecuting Attorneys, issued a call in the Sacramento Bee for California to “support making pretrial release decisions based on validated risk assessment tools and, when necessary for public safety, pretrial services.” Moves away from money bail must be replaced with the thoughtful adoption of accurate, transparent and unbiased assessment tools, as well as a commitment to least restrictive conditions of release. Prosecutors are uniquely situated to influence and advocate for these changes. We are encouraged to see more and more of them accepting this responsibility.