While Virginia studies cash bail alternatives, local prosecutors and judges increasingly take reform into their own hands

By: - November 26, 2018 6:08 am

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Richmond Commonwealth’s Attorney Mike Herring says he never got much in the way of training about how much money it takes to make sure someone charged with a crime stays out of trouble and shows up for court, the purpose of cash bail.

“So, 20 or however many years ago when I was a junior commonwealth’s attorney and the judge looked down at me and said ‘Mr. Herring, what’s your recommendation on bond?’ I literally pulled it out of my ass,” he says. “I’d think, ‘OK, it’s a felony, seems like it ought to be four figures, $3,500 sounds right.’”

And that, he says, is the way it’s gone for years: Prosecutors making bail recommendations to judges based on “custom, instinct and anything else arbitrary” and defendants going free if they have enough money to hire a bondsman or languishing in jail if they don’t.

Herring ended the practice in Richmond earlier this year, announcing in April that prosecutors in his office would no longer seek cash bail for defendants. The change made him the first of a small but growing number of prosecutors and judges in Virginia to publicly eschew the system even as it remains enshrined in state law.

His new approach?

“If we think you’re dangerous, you stay in,” he says. “If we think you’re not dangerous, you get out. … But we don’t make a money recommendation because there’s no way to assign a monetary value to risk.”

Arlington County Commonwealth Attorney Theo Stamos announced a modest step in the same direction earlier this month, saying her office will no longer request that judges set cash bail for people accused of low-level misdemeanors.

And on Election Day, voters in Chesterfield County elected Scott Miles, a former public defender who ran on a criminal-justice reform platform that included no longer seeking cash bail for nonviolent offenders.

The impact is localized but far reaching, with the three jurisdictions handling a combined 33,000 criminal filings in their district courts last year, according to statistics maintained by the state Supreme Court.

Judges — who actually set bail — are also reconsidering the practice. In June, Fairfax County Circuit Court Judge David Bernhard told The Washington Post that for about a year he had stopped setting cash bail in cases where defendants weren’t deemed dangerous or a flight risk.

“Up here, I’ve seen a lot of little cash bonds where the magistrate or court has given them a $5,000 bond and they can’t afford it,” Bernhard told The Post. “But what they really need is mental-health treatment or drug treatment.”

So instead, he says he assigns defendants in those cases to the state’s pre-trial services program — a kind of pre-trial probation available in some localities that’s increasingly seen as an alternative to cash bail. It can include regular check-in requirements, GPS monitoring and drug testing — all things advocates say are more likely than bail to make sure someone comes to court and doesn’t reoffend.

The State Crime Commission is in the midst of a first-of-its-kind study of the program. Earlier this month, the commission’s staff outlined how they plan to track the outcomes of hundreds of cases in Virginia courts in an effort to discern what works and what doesn’t.

A commission study group has already recommended that the General Assembly expand the program to every jurisdiction in the state, but Republican lawmakers said they’d like to see the results of the research first, voicing skepticism at what they view as an, expensive, untested and growing bureaucracy.

“All I’m asking is whether pretrial services or any other means of pretrial release, be it bail or unsecured bond set by the court, is more effective than any other in terms of keeping the public safer and making sure people show up to their court dates,” said Del. Todd Gilbert, R-Woodstock, a former prosecutor who sits on the crime commission and the House of Delegates’ Courts of Justice Committee.

He said that while it’s well within prosecutors’ discretion to choose to stop asking for cash bail, he “disagrees with the appropriateness of some of their decisions.”

On the other side of the debate, Virginia Attorney General Mark Herring proposed a package of bail reform measures last month, calling the current system an undue burden on the poor that wastes state resources by unnecessarily jailing people who aren’t dangerous.

Other states have undertaken similar reforms, including New Jersey, which saw a 20 percent drop in its jail population but also a spike in costs for pre-trial supervision programs, according to a study undertaken by the judiciary there.

That kind of statewide action appears unlikely at this point in Virginia, but in the meantime, Herring and others are pressing forward.

Bernhard has said he hasn’t noticed any increase in the number of defendants who aren’t showing up to his court in Fairfax.

Neither has Herring in Richmond.

A review of Richmond District Court records compiled by virginiacourtdata.org showed the percentage of defendants charged with failing to appear in court has remained steady since Herring’s office stopped making cash bail requests.

“No one has come to me and said, dangerous … felons aren’t showing up,” Herring said. “So I’m assuming that it’s mostly knuckleheads not showing up for nuisance level stuff, which is not a good thing, but it’s also not the thing to sound the town alarm bell for.”

But concerns remain.

Stamos, the commonwealth’s attorney in Arlington, said that while she stopped asking for cash bail for minor offenses, she’s unlikely to go further, citing concerns about the impact on witnesses and victims of crimes.

She says witnesses and police are all subpoenaed and required to show up to court and that they should have some guarantees the defendant will as well.

“They’ve taken time off, had to get someone to watch their kid, had to get someone to take their dad to dialysis, I mean, that’s the effect of these kinds of things, and so my concern is for those people,” she said.

Herring says he thinks the state could find ways to overcome those concerns by coming up with better ways to handle people who fail to appear in court, such as a more robust pretrial supervision program and risk assessments similar to those implemented in New Jersey.

“Deal with that problem, don’t maintain the other bad system,” he said.

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Ned Oliver
Ned Oliver

Ned, a Lexington native, has been a fulltime journalist since 2008, beginning at The News-Gazette in Lexington, and including stints at the Berkshire Eagle, in Berkshire County, Mass., and the Times-Dispatch and Style Weekly in Richmond. He is a graduate of Bard College at Simon’s Rock, in Great Barrington, Mass. He was named Virginia's outstanding journalist for 2020 by the Virginia Press Association.