Berkshire DA under fire for dangerousness hearings

Two years ago, shortly after she was elected district attorney in Berkshire County, Andrea Harrington said she was going to sharply curtail the use of cash bail.

“A cash bail system is basically un-American,” she said on WGBY-TV’s Connecting Point. “It’s discriminatory against people who are impoverished. Two people accused of the same crime with the same kind of evidence – if one person can come up with $500 to be released pre-trial and the other person cannot because of their financial circumstances, to me that’s clearly inequitable and it’s not fair and it really doesn’t keep our community safe.”

In that same interview, Harrington also made clear that if her office felt a defendant was a danger to the community or to someone in the community it would present evidence of that danger to a judge and seek to hold the person that way.

“That way we’re able to distinguish between people who should be behind bars because they’re dangerous and people who are innocent until proven guilty,” she said.

Harrington appears to have followed through on her pledge. Defendants today are rarely being held on bail, but now advocates and defense attorneys are accusing her of using dangerousness hearings to lock their clients up prior to a trial. 

In separate reports by New England Public Media and the Berkshire Eagle, the defense attorneys and advocates suggest Harrington has substituted one discriminatory practice for another. While bail hearings are way down, the number of dangerousness hearings has increased dramatically – tripling in District Court and rising fivefold in Superior Court, according to the reports.

“It doesn’t get much more of an infringement on civil liberties,” defense attorney Michael Hinkley told New England Public Media. “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.”

If a defendant is declared dangerous, he or she can be held for 120 days in District Court cases and 180 days in Superior Court cases – and even longer during COVID.

It’s quite possible that dangerousness hearings went up in Berkshire County when bail hearings went down because prosecutors – and judges – were implementing bail improperly previously. In a 2017 decision on a bail issue, the Supreme Judicial Court was critical of prosecutors for incorporating claims about the defendant’s dangerousness into a request for bail.

“Using unattainable bail to detain a defendant because he is dangerous is improper,” the court held. “If the Commonwealth wishes to have a defendant held pretrial because he poses a danger to another person or the community, it must proceed under the [statute dealing with dangerousness.]”




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