10/22/2018 Release from the Office of Attorney General Mark R. Herring:

RICHMOND (October 22, 2018) — Attorney General Mark R. Herring today called for reforms to Virginia’s cash bail system, citing potential policy and constitutional concerns and the availability of alternatives that can keep communities safe and ensure defendants show up for court without simply penalizing and jailing low-income Virginians because of the inability to come up with hundreds or thousands of dollars to post bail.

In a letter and legal memo to the Virginia State Crime Commission, which is currently studying Virginia’s pretrial process, including the cash bail system, Attorney General Herring expresses his desire to work with the Crime Commission and legislature on the issue, outlines some of the constitutional concerns raised by Virginia’s current cash bail system, and shares 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.

Attorney General Herring announced his support for cash bail reform Sunday evening during a 1,200-person assembly of Virginians Organized for Interfaith Community Engagement (VOICE), a non-partisan coalition of almost 50 faith communities and civic organizations in Northern Virginia working together to strengthen middle and low-income communities.

“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,” said Attorney General Herring. “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.

“It’s clear there are much more efficient ways to meet our goals. Last year about 28,000 Virginians were released under pretrial supervision instead of sitting in jail. Ninety-four percent of them showed up for their court date and 94% stayed out of trouble. It costs about $3 a day to keep someone on pretrial services, versus about $85 per day if they are jailed, so if we make smart reforms we could be talking about millions in savings while still meeting our public safety goals.

“The realities of the way bail works in practice in Virginia could also raise constitutional concerns, especially when bail is set arbitrarily or without counsel, rather than in consideration of an individual’s circumstances.

“At the federal level we’ve seen a real coming together of conservatives and progressives around a smarter, more effective way to handle bail and pretrial detention. I think it’s time for a similar conversation in Virginia about whether there are better, smarter ways to keep our communities safe while keeping low-risk, non-violent people from entering the cycle of debt, unemployment, and re-offense that can often be triggered by even a short time in jail.”

Nationwide more than 450,000 Americans are in jail awaiting trial, many because of an inability to pay for bail. It is estimated that people in jail awaiting trial account for 95% 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% of the national rate and nearly half of Virginia’s jail population was awaiting trial.

The Virginia Community Criminal Justice Association found that pretrial services can be both an effective and cost-effective alternative to allowing low-income defendants to sit in jail awaiting trial. The VCCJA found that in 2017, 27,896 pretrial services cases were successfully closed with 94% of participants remaining arrest free pending trial, and 94% successfully reporting to court for their hearings.

In a 2012 study, the Virginia Department of Criminal Justice Services found that “too many lower risk offenders remain in jail for lengthy periods of time due to their inability to post a secured bond,” and that “dangerous defendants with financial resources buy their freedom while low-risk defendants languish in jail simply because they do not have the financial resources to secure their release.” This disparity of treatment between low-income defendants and wealthy defendants causes concerns about compliance with the 8th Amendment’s prohibition against excessive bail, and the 14th Amendment’s Equal Protection clause. Additionally, Virginians’ 6th Amendment right to an attorney may be implicated when bail is set without counsel present. These concerns are further outlined in Attorney General Herring’s memo on cash bail shared with the Crime Commission.

Attorney General Herring’s memo also outlines some important principles to consider when evaluating potential reforms:

  1. Considering ways to encourage or require use of the Virginia Pretrial Risk Assessment Instrument (VPRAI) to help pretrial services providers objectively calculate a defendant’s likelihood of failure to appear and danger to society. The VPRAI was the first research-based statewide pretrial risk assessment in the country. The VPRAI tool consists of eight factors that are weighted to create a risk score and defendants are assigned to one of five risk levels ranging from low to high.
  2. Whether the state should establish, by law or by court rule, a presumption in favor of release on the least restrictive means based on a defendant’s risk factors.
  3. Consider whether counsel for defendants or commonwealth’s attorneys should be present when bail decisions are made by a magistrate.

Attorney General Herring’s call for cash bail reform is supported by a legislative, community, public safety, and faith leaders in Virginia.

“I commend Attorney General Mark Herring for applying a common sense approach to bail reform. Many defendants cannot afford to post cash bail, creating a justice system where individuals are incarcerated simply because they are poor,” said Congressman Bobby Scott (VA-03). “Unfortunately, too many of these individuals end up losing their jobs, and eventually their homes, because they are locked up awaiting trial. Some defendants are eventually sentenced to no jail time at all or to a sentence that could have been served on weekends, allowing them to preserve their jobs and homes. The economic instability inflicted on these individuals with our current bail system too often leads to unnecessary recidivism. There is no public safety rationale for jailing people because they do not have money. A bail system should be based on risk and not wealth. Our current bail system only further increases mass incarceration, drives up costs to the taxpayer, and unnecessarily breaks up families and communities. The reforms proposed by Attorney General Herring will save Virginians millions of dollars, which can be invested in evidence-based initiatives proven to actually reduce crime and make our communities safer.”

“As a former magistrate judge and public defender, I understand both sides of the cash bail issue,” said Del. Jennifer Carroll Foy (2nd District, Prince William.) “Our current cash bail system disproportionately impacts low-income individuals and people of color, while jeopardizing public safety and leaving local governments to pick up the tab. We must prioritize public safety by preventing those who are dangerous or pose a flight from paying their way out of jail, while low-risk individuals languish behind bars because they are too poor to pay. I applaud Attorney General Herring for leading Virginia towards a smarter, fairer, and more effective criminal justice system.”

“Pure and simple, cash bail is a tax on being poor,” said Rev. Dr. Keith Savage, President of VOICE (Virginians Organized for Interfaith Community Engagement) and 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. As a pastor working with VOICE, I have seen how people have lost their jobs and families have been ripped apart, yet for all that the community was not made any safer. Meanwhile, a wealthier person faced with the exact same charge pays bail and never sets foot in a jail cell. Virginia can do better, and the God of justice calls us to do so.”

“Attorney General Herring has highlighted some areas of substantial concern with regards to Virginia’s current system of bail,” said Alexandria Commonwealth’s Attorney Bryan Porter. “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. I look forward to the Crime Commission’s report and to the Attorney General’s leadership on this important issue.”

Reform of the cash bail system is the latest in a series of efforts and initiatives by Attorney General Herring to reform and strengthen Virginia’s criminal justice system by making it more fair, equal, just, and safe. He previously launched a series of regional trainings on 21st century policing skills like de-escalation and recognition of implicit bias. He also hired the state’s first Local Jail Re-Entry Coordinator to help sheriffs and regional jails start or expand re-entry services that help ex-offenders successfully transition back into their communities without committing further crimes. He also launched a program called “Give It, Get It: Trust and Respect between Teens and Law Enforcement,” to promote positive dialogue between young people and law enforcement, and to reduce the fear and potential risk during interactions.

Cash bail reform efforts at the federal level have brought together Senators from across the political spectrum. Senators Kamala Harris (D-California) and Rand Paul (R-Kentucky) have proposed bipartisan legislation to encourage state-level innovation in reforming cash bail. The effort has been endorsed by a diverse set of organizations including the NAACP Legal Defense Fund, Association of Prosecuting Attorneys, and National Organization of Black Law Enforcement Executives (NOBLE).