Prosecutors are considering their role in the bail reform movement.
Prosecutors play an outsize role in bail decisions, with their monetary recommendations often anchoring court discussions. But money bail too often leads to the pretrial detention of poor people who present little or no risk to public safety, and reform-minded prosecutors are working to change that. As a recent briefing paper by the Institute for Innovation in Prosecution entitled Prosecutors and Bail: Using Discretion to Build a More Equitable and Effective System notes, “prosecutors can use their discretion to devise and implement policies that reduce the criminalization of poverty and enhance safety for all."
Some recent examples of prosecutors’ new approaches to bail recommendations include:
- In Illinois, Cook County State’s Attorney Kim Foxx has supported pretrial release of people charged with nonviolent offenses who are in custody and unable to post bonds set at up to $1,000. While the move only immediately affects several dozen detained individuals, some 250 to 300 people on average are jailed every day in the county because they can't post $1,000 cash or less. Under a policy set by Foxx in July as part of this ongoing reform, prosecutors will also agree to release on an I-bond, rather than cash bond, individuals charged with retail theft, possession of a controlled substance, and criminal damage to property.
- In Houston, District Attorney Kim Ogg instructed her staff to recommend release for most misdemeanor cases and filed a brief supporting bail reform in a federal lawsuit brought against the county, in which the court held that the county’s system of bail-setting unconstitutionally impacted poor people charged with misdemeanors.
- In Winnebago County, Wisconsin, District Attorney Christian Gossett waived his attorneys’ appearances in cases where, based on the arrest date, the bond hearing would be scheduled for a weekend or holiday, when prosecutors are not available for hearings. As a result, judges do not have to wait for a hearing before releasing without bail individuals who have been charged with lower-level crimes.