Virginia Lawyers Weekly VA Lawyers Weekly
State Attorney General Mark R. Herring has joined calls for reforms to Virginia’s cash bail system, saying too many low-risk criminal defendants are locked up awaiting trial because they cannot afford to post a bond.
Herring cited policy and constitutional concerns and the availability of alternatives that can keep communities safe and ensure defendants show up for court.
In a letter and legal memo to the Virginia State Crime Commission, now studying Virginia’s pretrial process including the cash bail system, Herring said he shared some common goals and principles, such as working towards a system that bases bail decisions on a defendant’s risk of flight and risk to the community, not just the money in his or her bank account.
Herring announced his support for cash bail reform Oct. 21 before a non-partisan coalition of faith communities and civic organizations in Northern Virginia known as VOICE.
“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,” Herring said, according to a news release. “I want to keep dangerous people in jail and I want people to show up for court, and it’s clear that there are better, more effective ways to achieve that. It doesn’t make much sense, nor does it make our communities safer, to make a low-risk, non-violent person sit in jail, while more violent or dangerous people can go free because of their wealth.”
Herring joins a growing list of judges, prosecutors and activists who have called for cash-bond reform in Virginia and nationwide. Fairfax County Circuit Judge David Bernhard determined on taking office last summer to stop setting bonds on nearly all defendants who did not pose a danger or flight risk. Richmond Commonwealth’s Attorney Michael N. Herring announced this year he would stop seeking cash bonds for criminal defendants.
Nationwide more than 450,000 Americans are in jail awaiting trial, many because of an inability to pay for bail, Herring’s office said. It is estimated that people in jail awaiting trial account for 95 percent of the growth in America’s prison population since the year 2000. A 2016 study by the Prison Policy Initiative found that pretrial detainees in Virginia increased from fewer than 3,000 in 1978 to almost 9,000 in 2013. The Vera Institute of Justice found that, in 2015, Virginia’s jail incarceration rate was approximately 150 percent of the national rate and nearly half of Virginia’s jail population was awaiting trial.
“Pure and simple, cash bail is a tax on being poor,” said VOICE President Rev. Dr. Keith Savage, pastor at 1st Baptist Manassas. “In Virginia, we needlessly spend millions of dollars warehousing people in jails before they even have a trial for the sole reason that they cannot afford bail. Not because they are a threat to the community, but because they are poor,” he said in the Herring news release.
Alexandria Commonwealth’s Attorney Bryan Porter said Herring highlighted some areas of substantial concern. “The Attorney General’s call for reform is a catalyst for getting those of us working in the criminal justice system to think about how we can make pre-trial release decisions in a smarter, more effective and efficient way,” Porter was quoted as saying.
