Herring also said jailing defendants who pose little flight risk or danger to the community is a waste of taxpayer money when cheaper pretrial supervision is available to effectively ensure that defendants show up for court. He spoke to the group VOICE, a coalition of faith communities and civic organizations.
Herring can’t set bond policy in Virginia but is an influential voice on criminal justice issues in the state. He said he is prepared to work with the Virginia Crime Commission, which is studying the issue, and the General Assembly to craft legislation that would flesh out his bond-reform ideas. He said the state Supreme Court or local judges and prosecutors could also take action.
“It doesn’t make any sense to have someone who has wealth or means and who may be dangerous be released back into the community, while someone who is far lower risk sits in jail simply because they couldn’t afford it,” Herring said in an interview. “It really should be about assessing who is at risk of not showing up for court or is at risk for violence.”
Herring joins a growing list of judges, prosecutors and activists who have called for cash-bond reform in Virginia and nationwide.
This year, Richmond’s top prosecutor announced he would no longer seek cash bonds. Fairfax Circuit Court Judge David Bernhard also revealed over the summer that he had stopped setting bonds on nearly all defendants who didn’t pose a danger or weren’t a flight risk.
He appears to be the first judge in Northern Virginia to embrace the idea.
Some prosecutors and the bail bond industry have pushed back on the trend, saying bonds, if used properly, provide a good incentive to ensure people show up for court and a reason for bail bondsmen to round them up if they skip out on appearances.
Cash bonds have been a major driver in the increase in mass incarceration in recent decades. In Virginia, the Prison Policy Initiative (PPI) estimates that pretrial detainees increased from fewer than 3,000 in 1978 to almost 9,000 in 2013.
Nationwide in 2018, PPI calculates that 465,000 people were being held in jails awaiting trial. It found in a 2016 report that this group accounted for 99 percent of growth in the jail population over the past 15 years.
The Justice Policy Institute found that poor defendants pay $1.4 billion a year to the commercial bail bond industry. And some studies have shown that people who are incarcerated before trial are more likely to plead guilty simply to get out of jail.
In Virginia, a magistrate determines whether someone arrested is held, released or offered a bond. A defendant’s attorney can then file a motion to request a bond hearing before a judge.
The judge weighs a number of factors in deciding whether to grant bond and how large it should be, including the defendant’s criminal record, the severity of the offense, flight risk and a person’s potential danger to the community.
If approved, the defendant can put up the bond money directly or seek the help of a bondsman. The 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 bondsman a fee — usually 10 percent of the bond amount.
Herring said the disparate treatment of those with means and the poor in Virginia’s bond system may be a violation of equal protection concerns.