Fairfax Commonwealth’s Attorney Steve Descano (D) announced Monday that he would not be seeking cash bail for non-violent offenders, formalizing a policy he and his prosecutors have been practicing since Descano took office in January 2020.
“I’ve long said that the laws on the books should match the values in our hearts. Cash bail is unjust, racially biased, and doesn’t make our community safer,” Descano said in a Twitter announcement. “That’s why my office won’t request it and why I call on the legislature to end it.”
In a Washington Post op-ed Descano said, “Simply put, cash bail creates a two-tiered justice system: one for rich people and one for everyone else. People who sit in jail risk losing their jobs for nonattendance, which, in short order, could lead to the loss of their housing, and in some cases the loss of custody of their children. Facing these rippling consequences, many people simply opt to plead guilty in exchange for their immediate release, often plunging them into a cycle of increased contact with the criminal justice system.”
Descano is part of a growing list of Virginia prosecutors who are moving away from cash bail. Norfolk Commonwealth’s Attorney Greg Underwood (D) was among the first to institute the practice in Virginia, according to Republican candidate for the House of Delegates 83rd district Tim Anderson. Anderson is a Virginia Beach lawyer whose practice includes criminal defense.
“There was this push that basically cash bonds keep poor people in jail while people with means get out, and now it’s turned into this race thing where it impacts people of color more,” Anderson said. “So, there is a pretty much nationwide push to eliminate bail from the criminal justice equation.”
Bail is a system designed to incentivize people awaiting trial to show up for their court date.
Anderson provided an example: “So I get arrested for a DUI, and I go in front of a magistrate. The magistrate says I get out of jail once I pay $2,500, for instance. And so I pay the court $2,500 I go to court, I’m found guilty or not guilty, it doesn’t matter, and then at the end of the case, when it’s all over, I get my $2,500 back.”
“If I don’t go to court, I skip, then I lose my $2,500,” he said.
“But nobody really has money anymore to post bail,” Anderson said. Instead, people reach out to a bondsman who pays the bail using insurance funds, and then at the end of the case, the bondsman gets the $2,500 bail he paid back. For that service, the bondsman charges the defendant a fee that is ten to fifteen percent of the bail.
“What people are looking at is basically, this is just really a way for insurance companies and bondsmen to make money off the criminal justice system,” Anderson said.
Anderson agrees that cash bail unfairly benefits wealthier people.
“Literally, there are people right at this minute that are sitting in jail pre-trial that can’t pay the bond that the court requires them to pay, and they’re sitting in jail,” Anderson said. “But somebody who may have the means would be out of jail, and that is happening right now in the Commonwealth, for sure.”
Without cash bail, non-violent defenders are released on an unsecured bond — a promise to show up for court.
Anderson said, “Look, as a criminal defense lawyer, I probably don’t have a lot of heartburn over people charged with non-violent misdemeanor not having to post bond.”
But Anderson said that people that commit more serious non-violent crimes like stealing a car should have some sort of incentive like bail or ankle bracelet monitoring. The advantage of cash bail, according to Anderson. is that it doesn’t cost the government anything. Bail is its own incentive, and bail bondsmen are privately incentivized to make sure their client appears in court.
In the Washington Post op-ed, Descano wrote, “We rely on a comprehensive suite of pretrial services to pair individuals with the interventions and supervision that will allow for pretrial release while keeping the community safe and incentivizing that person to show up to court.”
Hampton Roads-area bail bondsman Rodger Hopkins said, “There are movements all across the country. They love saying people are languishing in jail, that you just have tens of thousands of people languishing in jail simply because they can’t afford bail, but that is false.”
Hopkins said that in some other states including North Carolina, bail is often set absurdly high, but in Virginia, if someone can’t find a bail bondsman to pay their bail, it’s because they don’t have a co-signer and the traditional social stability that will make sure they come back to court. Legally, bondsmen are only allowed to charge a fee that is 10-15 percent of the bail, and bondsmen offer payment plans.
“The Norfolk Commonwealth’s Attorney, he thinks that bail bondsmen make a living off indigent people and people of color and so forth, folks that can’t afford to get out. [So,] they just let everybody out on their own.”
Hopkins said because of the lack of bail in Norfolk, the Norfolk police have a huge list of wanted persons.
“If you have a bail bondsman bonding people out, we’re going to find them,” Hopkins said.
State Senator Chap Petersen (D-Fairfax) said that making a blanket policy banning cash bail is a bad idea. Petersen is a lawyer with experience in criminal justice.
“To simply say that every single person that comes before the court, somehow we’re going to guarantee that they come back somehow through pretrial services, I just think that’s a little bit naive,” Petersen said.
He does agree that cash bail has been abused, with unnecessarily high bails set for defendants. Petersen said that ending cash bail for local community members who have committed minor, non-violent offenses might work, but there’s no good solution to make sure people from out of state or country appear in court.
“Ending cash bail is a nice slogan,” Petersen said. “It’s not at the end of the day the most effective way to keep a community safe.”
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