Descano joins a growing number of prosecutors and judges in Virginia and across the nation who have stopped asking defendants to put up money to get out of jail and ensure they continue to show up for court hearings.
They say cash bail unfairly burdens the poor, who often cannot afford it and end up languishing behind bars as a result. Jailed defendants sometimes lose jobs, housing and child custody rights and may be more susceptible to plead guilty simply to avoid those consequences.
Some studies have also shown that pretrial detention increases recidivism.
“It creates a two-tiered system of justice — one for the rich and one for everybody else,” Descano said. “It exacerbates existing racial inequities.”
Descano said his office will continue to recommend no bond for defendants who pose a risk to the community or are a possible flight risk. For defendants who are released, Descano said, many will be enrolled in pretrial services to ensure they meet certain conditions — such as drug testing — while awaiting trial.
Descano also called on Virginia’s General Assembly to enact legislation to end cash bail during its next legislative session in January, when it is expected to take up the issue. Descano said the move is necessary because many judges in Fairfax County and elsewhere continue to set cash bonds for defendants.
Descano’s announcement comes the month after Fairfax County Circuit Court Judge David Bernhard ruled that holding an indigent defendant in jail in lieu of a cash bond is unconstitutional, although the ruling applied only to that particular case. Bernhard had previously announced he would not order cash bail in most cases.
Arlington County Commonwealth’s Attorney Parisa Dehghani-Tafti (D) has also stopped seeking cash bail, while Loudoun County Commonwealth’s Attorney Buta Biberaj (D) has limited its use. Prince William County Commonwealth’s Attorney Amy K. Ashworth (D) has also promised to end the practice. All were elected in the same election in November 2019 that put Descano in office.
Last year, Alexandria Commonwealth’s Attorney Bryan Porter (D) announced he would not seek cash bond in most misdemeanor cases.
After a defendant’s arrest, he or she can file a motion seeking bond. A judge can then decide whether to grant it and what amount to set bail at, often based on a recommendation from a prosecutor.
The Prison Policy Initiative calculates that pretrial detention has been a major driver of mass incarceration in the United States, increasing the jail population by 63 percent since 1983.
Despite the moves to end cash bail, some prosecutors and judges argue it is an effective measure for getting defendants and their families to participate in their cases.