Chittenden County State’s Attorney Sarah George will no longer request cash bail in the pretrial cases she oversees, in an effort to further equalize a justice system that she believes punishes the poor and benefits the rich.
George took up the practice in January, but it received little notice until she issued a press release about it this week.
She said it’s not fair that some people are in jail only because they can’t afford to post bail. Others who are wealthier get to walk free while awaiting trial.
In announcing the policy change, she said the criminal justice system is “built on systemic racism and classism” that Vermonters need to recognize.
“Because they didn’t have this arbitrary amount of money, they were sitting in jail pretrial,” she said. “And that’s, you know, losing their jobs and losing their housing and potentially losing their kids and disrupting the stability of relationships within their community.”
George is now the second state-level prosecutor in the country to discontinue requesting bail. San Francisco District Attorney Chesa Boudin did so in January. Some states, like New Jersey and Alaska, have greatly reduced the use of cash bail.
She said the effort gained more urgency when Covid-19 hit in March. Across the country, there’s been an effort to release prisoners wherever feasible to make room for social distancing in cramped quarters where outbreaks have taken hold.
In Vermont, bail is intended to ensure that a defendant shows up for court appearances and doesn’t flee the state. If someone is considered a flight risk, or has failed to appear at court appearances in the past, that will signal to a judge or prosecutor that bail should be considered. Under Vermont law, the defendant actually has to post only 10% of the bail amount — so, $1,000 bail would require posting $100. However, for some suspects, even the 10% requirement is difficult to meet.
Bail is not used to keep people accused of violent offenses from being in the community. If a great deal of evidence points towards guilt of a violent crime, George said, her office would request a hold on that person, so they didn’t have any opportunity to post bail at any dollar amount.
“This has nothing to do with public safety,” George said. “People are really quick to say, ‘Oh, we’re just letting violent people out of jail.’ Well, if that’s what you think, we’ve been letting violent rich people out of jail the whole time.”
George pointed to research that shows that bail doesn’t prevent someone who is a flight risk from showing up in court, which is why she doesn’t think it’s an effective flight deterrent. Bail is returned to the defendant once he or she returns to court for trial. If they miss a court hearing, that money is typically forfeited to the state.
“There are some people who are just not going to show up for court whether they have to pay cash bail or not,” George said.
Though George’s office is no longer requesting bail for suspects, judges can set bail themselves if they think the accused person is likely to flee. This has happened multiple times since George adopted her no-bail policy, and she says every time her team was able to work with the defense to get that ruling overturned.
James Lyall, executive director of ACLU Vermont, said his organization has been encouraging the Vermont Legislature to adopt a statewide no-bail policy for years.
“Vermont should be proud to have a state’s attorney who is walking the walk on bail reform. Most people agree that no one should be imprisoned simply because they can’t afford bail, and yet that’s exactly what happens to scores of low-income Vermonters every day,” Lyall wrote in an email to VTDigger.
“Unfortunately, other state’s attorneys continue to send Vermonters to prison solely for lack of funds, and it’s past time for the Legislature to recognize the fundamental injustice in that and to intervene,” he wrote.
He thinks ending cash bail is a smart criminal justice policy that can help Vermont lower its prison populations.
Others disagree. Essex County prosecutor Vincent Illuzzi said his rural county borders New Hampshire and Canada, and cash bail is a helpful deterrent to flight.
When he’s had defendants flee to New Hampshire, it can be a tedious process to extradite them back to the Green Mountain State.
“There’s a lot of reasons to resolve the case in a timely fashion,” Illuzzi said. “Witnesses come and go, memories fade, evidence gets lost.” And when that happens, cases can fall apart, he said, which is why having the option of cash bail is helpful to finalizing a case.
Still, Illuzzi recognized that cash bail can be arbitrary. In one case, he was prosecuting a Canadian on charges of smuggling drugs into Vermont, and bail was set at $100,000. The person was able to post bail and hasn’t been seen since, and the case was dismissed, he said.
But in the majority of his cases, Illuzzi said, cash bail is rarely requested. He turns to other methods first, like establishing a curfew for the defendant or allowing family to take custody of that person until trial. Illuzzi said he uses cash bail 5% of the time, and it remains an essential tool.
“Cash bail is an option seldom used,” Illuzzi said. “But when used, it’s often required.”