By Daniel Berti/ Capital News Service
When someone is charged with a crime, prosecutors and judges want to make sure the defendant shows up for court. So they usually require the person to put up cash bail — money the defendants forfeit if they skip town.
But now, many officials — from local prosecutors to the state attorney general — are rethinking that practice. They say that cash bail penalizes low-income defendants and that GPS monitoring and other technology are just as effective as a monetary incentive to return to court.
“Virginia’s current system of cash bail too often determines who has money, not who is dangerous, and we can’t have a justice system that determines fairness and freedom based on wealth and means,” Attorney General Mark Herring said in calling on state lawmakers to address the issue.
Legislation to reform the bail system failed in this year’s General Assembly. But commonwealth’s attorneys in a handful of localities are plowing ahead on their own, recommending that nonviolent defendants be released on an unsecured bond or personal recognizance — basically, by giving their word that they will show up for court.
Charlottesville is a textbook example of this new approach. Authorities there say it is working.
In most circumstances, Charlottesville officials haven’t used cash bonds since 2000. Prosecutors instead prefer to release defendants back into the community without having them pay money.
Commonwealth’s Attorney Joe Platania said cash bonds don’t enhance public safety and don’t treat low-income offenders fairly.
“We haven’t seen a negative impact related to community safety by using a system where we don’t rely on cash or secure bonds,” Platania said. “If they’re not going to go out and hurt anyone or be a danger to the community, it doesn’t make sense for them to pay money to be released.”
Charlottesville officials use risk assessment tools to determine whether pretrial defendants will be a threat to the community or likely to miss their trial date. If a defendant doesn’t fall into either of those categories, prosecutors typically recommend the judge release the person on unsecured bond or personal recognizance.
Defendants released on unsecured bond have to pay the bond only if they fail to appear for trial. Personal recognizance means defendants are released on the basis of a promise that they will return to court.
In cases where defendants are accused of violent or serious crimes, prosecutors ask that they remain behind bars until they’re slated to appear in court.
“If we feel someone is a threat to themselves or the community, we ask that the person be held until their trial,” Platania said.
In most Virginia localities, judges and prosecutors routinely recommend cash bonds. Defendants who can’t pay go to jail.
According to the Vera Institute of Justice, a nonprofit advocacy groups, 47 percent of people in Virginia jails in 2015 were awaiting trial and had not been convicted of a crime. That was true of 65 percent of people held in jails nationwide in 2016, according to the U.S. Department of Justice.
Charlottesville began reforming cash bond practices under Dave Chapman, who served as commonwealth’s attorney from 1993 until 2017.
According to Chapman, Charlottesville’s criminal justice system transitioned from cash bail when the Virginia Pretrial Services Act was enacted in 1995.
“It’s just one of many things we’ve done in Charlottesville to try and eliminate the way in which poverty affects the case of a person who is indigent,” Chapman said. “If a locality has access to pretrial supervision services through a community corrections agency and doesn’t make use of it fully, they’re missing the boat.”
As of January 2018, there were 33 pretrial agencies serving 75 percent of Virginia’s localities, according to the Virginia State Crime Commission. Thirty-four localities in the state didn’t have access to a pretrial agency.
Chapman said that he supported recent efforts to reform cash bonds.
“The reality is, we’ve been doing this for years in Charlottesville,” Chapman said. “I would urge localities that are just getting into the field to come to Charlottesville and take a look at what OAR does and how they do it because it’s a model that can be replicated.”
OAR-Jefferson Area Community Corrections is a nonprofit based in Charlottesville that provides cost-effective alternatives to incarceration, including pretrial supervision and risk assessment screenings.
Executive Director Ross Carew said the organization conducts interviews, investigations and criminal background and reference checks after a defendant is arrested. The group uses a tool called the Virginia Pretrial Risk Assessment Instrument to make an initial bail release decision and to determine the supervision level for defendants placed on pretrial supervision.
“We look at all the different factors that could make somebody a risk to not show up to court, or to get in trouble during that period of pretrial,” Carew said. “All of that information is used to inform the court so they can make a risk-based release decision.”
Carew said holding a defendant in jail is more expensive than placing the person on pretrial supervision where the average length of supervision is 116 days. It costs about $94 per day to hold someone in Albemarle-Charlottesville Regional Jail and about $3 a day to keep someone on pretrial services, officials say.
The discussion around cash bond reform has gained momentum in Virginia in the past year.
Last April, Richmond Commonwealth’s Attorney Mike Herring announced that his office would no longer seek cash bonds for defendants awaiting trial.
In November, Arlington County Commonwealth’s Attorney Theo Stamos said she would no longer seek cash bail for people accused of most low-level misdemeanors. Scott Miles, who was elected commonwealth’s attorney in Chesterfield County that month, said he would not seek cash bail for pretrial defendants.
After Mark Herring, the state attorney general, called on lawmakers to reform the cash bond system, Democrats introduced two bills in the General Assembly seeking to start that process.
SB 1687, filed by Sen. Jennifer McClellan of Richmond, and HB 2121, sponsored by Del. Jennifer Carroll Foy of Prince William County, would have required Virginia’s Department of Criminal Justice Services to collect data about the use of bail in all Virginia localities. Both bills were killed in committee.
Elizabeth Murtagh, Charlottesville’s public defender, said pretrial services are a far better option for her clients than being held in jail on bond. Murtagh’s clients typically fall below the state poverty line.
“Getting locked up is one of the most disruptive things to a family that I can think of. If you’re helping to provide for your family, that’s a problem if you get locked up,” Murtagh said. “It has a huge ripple effect.”