Judges have been setting cash bonds for defendants awaiting trial for so long, they’ve become a part of the criminal-justice system as familiar as the scales of justice or the crack of a gavel opening court.
But for about a year, Fairfax County Circuit Court Judge David Bernhard has been quietly doing away with this cornerstone of the courts. In his courtroom, nearly all defendants not deemed a danger to the public or a flight risk have been allowed their freedom without putting up thousands of dollars.
Bernhard appears to be the first judge in Northern Virginia to embrace a growing criminal-justice reform movement in the state and across the country concerned that the decades-old system disadvantages the poor.
Those who are against cash bonds say they create a two-tiered justice system. People of means can afford bonds and be released, while the indigent often cannot and end up languishing behind bars — sometimes with disastrous impacts.
“They may lose their job and that may cause them to lose their housing. It’s a cascading effect,” said Bernhard, a former defense attorney. “And most people who can’t make the cash bond, it’s because they don’t even have a thousand dollars to their name.”
Bernhard made his stance public just weeks after Richmond’s prosecutor announced that he would no longer request cash bonds and a group of liberal state delegates sent a letter pressuring the Prince William County prosecutor to follow suit.
The moves have drawn pushback from some prosecutors and bail bondsman, who argue that cash bonds, used properly, can provide a powerful incentive to ensure defendants show up for court dates and an effective way to make sure they are rounded up if they don’t.
“We live in a tri-state area, so if a defendant misses a hearing, local police are not reaching out to law enforcement in other states to find the person, but we will,” said Joey Tropea, vice president of Freedom Bail Bonds in Fairfax City. “With a surety bail, a loved one also has a vested interest in ensuring that person appears in court.”
After a person is arrested and taken to jail in Virginia, a magistrate determines whether a defendant is held, released or offered bond. A defendant’s attorney can then file a motion to request a bond hearing before a judge.
The judge decides whether to grant bond and how much, often based on a prosecutor’s recommendation. A judge looks at the offense, the defendant’s criminal record and whether the person is dangerous or a flight risk, among other factors.
If approved, the defendant can put up the bond money directly or seek the help of a bail bondsman. The bail bondsman promises to pay the court the full bond amount if the defendant does not show up for all hearings. In exchange, the defendant or a family member typically pays the bail bondsman a fee — usually 10 percent of the bond amount.
Bail bondsman will typically try to track down defendants who skip court, to recover their money. Defendants who can’t afford the bond are usually held in jail until trial.
The Prison Policy Initiative (PPI) calculates that 465,000 people nationwide were being held in jails awaiting trial in 2018. The group found in a 2016 report that this group accounted for a whopping 99 percent of growth in the jail population over the past 15 years.
In Virginia alone, PPI said pretrial detainees increased from fewer than 3,000 in 1978 to almost 9,000 in 2013. The Justice Policy Institute found that poor defendants pay $1.4 billion a year to the commercial bail bond industry.
“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 said. “But what they really need is mental-health treatment or drug treatment.”
In lieu of cash bond, Bernhard said he often recommends defendants to pretrial services, an agency that monitors defendants and ensures they meet conditions, such as drug testing, set by a judge while awaiting trial. Bernhard said the agency is a good alternative because it’s not motivated by profit, like the bail bonds industry.
Bernhard said that he does not think the number of defendants who skip out on court hearings has increased since cash bonds were eliminated. But he said he has asked for data to more closely examine the issue.
Cash bonds have become an increasing focus of legislators and court officials across the country. New Jersey eliminated most cash bonds last year, leading to a 20 percent drop in its jail population but also warnings about the costs of putting more people in pretrial monitoring.
Maryland also enacted similar reforms in 2017 that led to decreases in its jail population. The District was a pioneer in bond reform and has been releasing nearly all defendants before trial for a quarter-century without cash bond. Prosecutors from Philadelphia to Florida have also announced that they will no longer seek cash bonds.
But local prosecutors don’t appear ready to follow those leads.
“I do believe that in many, many cases cash bail is not appropriate. You want to avoid the situation with someone who lacks resources,” said Fairfax County Commonwealth’s Attorney Raymond F. Morrogh. “But if you eliminate cash bond, what if they don’t appear? Nothing undermines the public’s faith in the system than when people continually fail to appear. To me, it’s a balancing process.”
In Prince William County, Commonwealth’s Attorney Paul B. Ebert said that he has worked to make the system equitable but that tossing out cash bonds all together is not the answer.
“We have overcrowding in jail, and one of the ways we can do this is bond them out as quickly as possible,” Ebert said. “I think we are pretty progressive here. I don’t intend to change it, unless someone can convince me otherwise.”
The American Civil Liberties Union of Virginia, which has been pushing for bond reform, applauded Bernhard’s move.
“Bond doesn’t lead to people being safer,” said Executive Director Claire Guthrie Gastañaga. “It puts people in jail who don’t have the wherewithal to pay bail.”