News  Berkshire DA’s Office Continues To Facilitate The Safe Release Of Non-violent Inmates To Protect Public Health

Pittsfield — The Berkshire District Attorney’s Office continues to work proactively to facilitate the safe release of non-violent offenders from incarceration. These efforts are critical to public health and safety in light of the risks posed by an outbreak of COVID-19 among the incarcerated population on our taxed medical community, on inmates, and on correctional officers and staff.

Correctional staff and inmates continue to test positive for COVID-19 at an exponential rate throughout the state.

CommonWealth Magazine estimates that the infection rate in state prison is two and a half times higher than the statewide rate. Infectious disease experts are sounding the alarm because of the risk it poses to health. Positive COVID-19 cases in Essex County jail ballooned overnight. More than 300 correctional officers and prisoners tested positive while testing in jails is limited.

The risk of overwhelming our medical staff because of COVID-19 is genuine as Massachusetts has yet to hit the surge in case numbers as predicted by health officials.

The Berkshire District Attorney’s Office proactively contacted CPCS and the private bar to encourage them to file motions for release in appropriate cases and we have been filing our recommendations with the court on a case-by-case basis.

The Supreme Judicial Court issued an order on April 4 establishing guidance to criminal justice agencies making determinations regarding incarceration in light of the COVID-19 pandemic. It provides certain defendants held pre-trial the presumption of release.

That order included specific provisions District Attorney Andrea Harrington requested to protect victims and the community, specifically from domestic violence, child abuse, and other violent crime. The order establishes a full list of charges that exclude a defendant from presumptive release, including any allegations of domestic violence and violation of restraining orders.

Berkshire County has the third lowest percentage of individuals being held pre-trial in the state (behind Dukes and Hampshire) because of policies we initiated. We use pre-trial detention for only those who pose a danger to victims, individuals, and the community. We negotiate reasonable conditions of release to ensure non-violent defendants return to court.

The Berkshire District Attorney’s Office began working with defense counsel prior to the SJC order and during negotiations with the Special Master by identifying 19 individuals we expected would quality for presumptive release and encouraging defense counsel to file motions. Of those, 11 defendants ultimately filed motions for release.

The SJC has held that all defendants are entitled to file motions for release with the trial courts. To date, defense attorneys have filed 45 motions with Berkshire County courts.

The Berkshire District Attorney’s Office assented to 16, opposed 20, and took no position on six. The court approved the release of 22 people from custody, denied 15, and eight motions are still pending.

The court granted the release of six defendants over the Berkshire District Attorney's objection and denied one release over the prosecutor's agreement.

The Berkshire District Attorney’s Office is currently working with one defense counsel to secure outside care for an inmate in place before defense files a motion.

The individuals released were being held on bail established by a judge or clerk magistrate or were already released on bail and had it revoked for a technical violation. None of the individuals being held pre-trial were deemed dangerous by the court.

We believe eight of the 22 released qualified for presumptive release per the SJC ruling. One violated conditions of release by failing a drug test, another had bail revoked because of a new charge for drug possession, and a third violated a no contact order by sending a letter in the mail. Five other individuals were being held pre-trial because they could not pay the bail – two for $5,000, one for $3,000, and two for $2,500 – or otherwise they would have already been released.

The rules of professional conduct prevent the Berkshire District Attorney's Office from making additional, extrajudicial comments about specific cases. Each defendant is still entitled to a fair trial to answer to the charges.

Our work on these motions and our pre-existing pre-trial policies will ultimately ease the foreseeable increased pressure on our health care system while ensuring public and victim safety.