Virginia’s current cash bail system prioritizes money over safety and is in clear need of reform, Virginia Attorney General Mark Herring told a gathering of Northern Virginia faith communities at Fairfax High School on Oct. 21.
Herring and Virginia Gov. Ralph Northam both decried the Commonwealth’s requirements that defendants post a deposit in order to be leave jail while awaiting court proceedings as unfair when addressing Virginians Organized for Interfaith Community Engagement, a nonpartisan coalition of about 50 churches, mosques, synagogues, and educational and community groups.
Representing more than 180,000 families in Fairfax, Arlington, and Prince William Counties as well as the City of Alexandria, VOICE focuses on advocacy around education, criminal justice reform, housing affordability, immigration, and transit, according to the organization.
About 1,400 people attended the VOICE for Justice Summit on Oct. 21, according to Rev. Dr. Keith Savage of the First Baptist Church of Manassas, who emceed the event with Herndon Trinity Presbyterian Rev. Rebecca Messman.
While the summit touched on a range of issues, including mental health support in schools and immigration policies that have separated families, criminal justice reform took center stage with Virginia’s governor and attorney general pledging to address the inequities caused by a cash bail system that critics say disproportionately penalizes poor people and people of color.
“I want to keep communities safe. I want people to show up for court, and it is clear there are better, more effective ways of doing this,” Herring said. “…It does not make sense, nor does it make our communities any safer to make low-risk, nonviolent persons stay in jail while a much more violent person is allowed back into the community just because that person has the money to do it.”
Herring announced at the VOICE summit that on Oct. 19 he sent a letter and legal memo that outlines his concerns about cash bail and possible policy solutions to the Virginia State Crime Commission, which is currently studying the state’s pretrial process, including the cash bail system.
Virginia law states that individuals held in custody pending a trial or hearing may be admitted to bail unless there is probable cause to suggest that they will fail to appear in court or that their “liberty will constitute an unreasonable danger” to themselves or the public, according to Virginia Code Section 19.2.
However, the law also gives judicial officers broad discretion for determining the specific terms of a particular defendant’s pretrial release. The nature of the offense, record of conviction, the character of the accused, and their ability to pay bond are all among the criteria that may be considered.
In 2005, Virginia implemented a tool called the Virginia Pretrial Risk Assessment Instrument that weighs factors like a defendant’s criminal history, current and pending charges, and history of failure to appear in court to assign a risk score for individuals eligible for bail.
While the VPRAI adds some level of objectivity to the process, magistrates are still ultimately responsible for setting pretrial release terms, and the hearings are often held without a defense or prosecuting attorney present, according to Herring’s memo to Virginia Crime Commission Chair Sen. Mark Obenshain (R-26th).
“When a judicial officer determines that release on the defendant’s unsecured promise will not reasonably assure the appearance of the accused, alternatives to cash bail bonds are rarely used,” Herring wrote. “Therefore, many people who are eligible for cash bail bonds face incarceration while awaiting trial merely because they cannot afford to pay the bond.”
A 2012 study conducted by the Virginia Community Criminal Justice Association found that 43 percent of the people who remained in jail after being given a secured bond had an average or lower risk level as determined by the VPRAI.
92 percent of those defendants were being held on bonds of $5,000 or less, according to Herring’s memo.
According to a 2016 report from the Prison Policy Initiative, there are 646,000 people in custody in local jails around the U.S. with 70 percent of them being held pretrial.
Those numbers could be higher now. The PPI study found that the number of pretrial detainees in Virginia went from fewer than 3,000 in 1978 to almost 9,000 in 2013.
According to the Vera Institute of Justice’s Incarceration Trends tool, Virginia had more than 13,000 people incarcerated before a trial in 2015, constituting almost half of the state’s total jail population and exceeding the national rate by close to 115 percent.
Pretrial detention disproportionately impacts low-income, minority, and rural defendants, who tend to face greater difficulties in finding the money to post bail, Herring says.
According to the PPI, white men overall have the highest incomes before incarceration, while black women have the lowest incomes.
“The system of money bail is set up so that it fails: the ability to pay a bail bond is impossible for too many of the people expected to pay it,” researchers Bernadette Rabuy and Daniel Kopf said in their “Detaining the Poor” report. “The typical black man, black woman, and Hispanic woman detained for failure to pay a bail bond were living below the poverty line before incarceration… The median bail bond amount in this country represents eight months of income for the typical detained defendant.”
In addition to highlighting to racial and economic inequities, Virginia’s cash bail system raises constitutional and statutory concerns at both the state and federal level, Herring argues in his memo to the Virginia State Crime Commission.
The Eighth Amendment to the U.S. Constitution and Article I of the Virginia Constitution both prohibit the use of “excessive bail. U.S. Code Title 18 Section 3142 dictates that a “judicial officer may not impose a financial condition that results in the pretrial detention of the person,” though there is an exception for people who may flee or pose a danger to another person or the community.
Herring says the disparities in how financially stable and low-income defendants are affected by cash bail also raises equal protection concerns.
While he does not offer a single clear approach, Herring suggests that solutions to the issues raised by cash bail should involve improving the availability of pretrial services in all Virginia localities and establishing a general presumption in favor of releasing low-risk defendants instead of detaining them.
According to a 2014 report by the Center on Juvenile and Criminal Justice, pretrial services with intervention and supervision programs targeted to fit a specific defendant’s needs, such as GPS monitoring, court call reminders, and drug tests and rehabilitation, have been shown to be “more beneficial to the community, to the economy, and to those who have been charged with crimes” than cash bail.
Pretrial services were available in 74 percent of Virginia’s 134 localities as of 2017, according to Herring.
The Virginia Community Criminal Justice Association reported that, in 27,896 pretrial services cases in 2017, 94 percent of participants remained arrest-free pending trial, and 94 percent reported successfully to court for their hearings.
The elimination of cash bail has precedent.
Washington, D.C., has not used monetary bail since 1992, and California became the first U.S. state to abolish cash bail on Aug. 28 when its governor signed a reform bill in the wake of a state appellate court ruling that its system was unconstitutional, though the actual law will not go into effect until October 2019, according to NPR.
Some other states have adopted their own reforms to decrease the use of cash bail, though results in terms of incarceration rate reductions have been mixed so far.
New Jersey, for example, largely eliminated money bail in 2017 by instructing judges to instead determine whether to detain or release defendants by evaluating the risk they might pose to the public. The New Jersey Courts’ Criminal Justice Reform Information Center recorded a 36.4 percent decrease in the state’s pretrial jail population from Aug. 31, 2016 to the same day in 2018.
The Maryland Court of Appeals ruled in 2017 that judges must consider defendants’ ability to pay bail when they set conditions for release and said the “least onerous” release conditions should be imposed unless someone is considered dangerous or a flight risk.
District Court of Maryland Chief Judge John Morrissey said in January that one-fifth of defendants were being held for not paying bail, a decrease from 40 percent prior to the reforms, according to The Baltimore Sun.
However, studies show that pretrial detentions have actually increased in Maryland since its cash bail reforms were put in place, because judges have been holding more people without bond, The Washington Post reported in July.
“A presumption in favor of release for low-risk defendants (rather than a greater emphasis on Virginia’s existing requirement that judges consider a defendant’s ability to pay bond) may help the Commonwealth avoid the resulting increase in pretrial incarceration experienced by other states,” Herring said in his memo.
The Virginia State Crime Commission’s report on the Commonwealth’s pretrial process is expected to be released in early November.
“We will take those recommendations,” Northam said. “We will discuss them with our legislators on both sides of the aisle and continue to work on criminal justice reform, so stay tuned for that.”