Time to Reform Practice of Cash Bonds

Earlier this month Richmond Commonwealth’s Attorney Michael Herring announced that his office would no longer recommend requiring cash bond for people charged with crimes. Instead, prosecutors would recommend defendants either be held in jail or be given their freedom until the trial. Too many people are unable to raise cash for the bond, and Herring is concerned that the practice needlessly stuffs the city jail with poor defendants who may be innocent and pose no threat to the community.

Herring is not a social justice warrior. He’s a prosecutor who takes seriously his obligation to put bad guys in jail. But he’s also sensitive to the effect that the criminal justice system has on poor African-Americans. Holding someone in gaol until his (or her, but mostly his) trial interrupts his employment, disrupts his ability to meet his financial obligations, and deprives him of his freedom. The practice also imposes a burden on taxpayers to house, feed, and guard people who have yet to be convicted of a crime.

If the Richmond metro area were undergoing a horrendous crime wave, I might be inclined to err on the side of public safety. But crime continues to decline. As we approach end of April, Police Chief Alfred Durham reports heartening statistics, reports the Richmond Times-Dispatch: Seven fewer homicides, 23 fewer people shot, 42 fewer robberies, 196 fewer burglaries, and an overall 6 percent drop in violent and property crimes compared to the same point last year. This would seem to be a propitious time to implement reforms to the criminal justice system, if it can be shown that reforms are needed.

When thinking about the causes of poverty, I find it useful to adopt two analytical frameworks: individual and institutional. Examining poverty at the level of the individual, we can see that some people are poor as a consequence of poor decisions they have made: They dropped out of school, they got pregnant before they got married, they abused alcohol or drugs, they committed crimes, they were unreliable employees, or they spent more money than they made and put themselves onto a treadmill of debt. And we can also see that institutional forces often work against them. Their schools were terrible. Politicians were corrupt. Jobs were scarce. They ran afoul of a criminal justice system that stacked the odds against them.

If we want to address poverty in Virginia and create a society where people can rise above their circumstances, then we need to adopt both frames of reference, Among other things, that means giving a closer look at the criminal justice system. I have written in the past about how jails and prisons can ease the re-entry of inmates into society by making sure they have such basic job-finding tools as drivers licenses and identity cards. And a strong case can be made that they system of cash bond disproportionately burdens the poor.

Herring’s order to stop recommending cash bond is just the first step, argues Adeola Ogunkeyede, director of the Civil Rights & Racial Injustice Program. While prosecutors may stop recommending cash bond, they aren’t always present when bail decisions are made — magistrates often make bail decisions when prosecutors aren’t around. Likewise, judges can override prosecutors’ recommendations.

In a Richmond Times-Dispatch column today, she writes: “Given this context it remains to be seen whether Herring’s decision to stop his prosecutors from recommending cash bond will reduce the number of people locked in jail pretrial in Richmond.” She concludes:

Moving forward, we encourage Herring to join advocates and communities disproportionately impacted by unjust bail practices — predominantly low-income communities of color — in championing measures that would unequivocally put Richmond on track to lead the way on meaningful bail reform in Virginia.

From what I gather, Herring has already joined the movement. Her remarks would be better aimed at magistrates and judges. More critically, I would like to see Ogunkeyede acknowledge that there is a balancing act between protecting the rights of the accused and protecting the community from the depredations of crime. As social justice warriors often seem to forget, “communities of color” are disproportionately victims of the criminals who live in their midst.

Still, all things considered, it is a fundamental principle of American justice that people are presumed innocent until found guilty. We should explore ways to keep not-convicted people out of jail, especially those accused of non-violent crimes who pose no threat to the public. Herring’s announcement is an important step forward and Ogunkeyede’s column is a worthwhile contribution to the discussion.

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5 responses to “Time to Reform Practice of Cash Bonds

  1. If there is a significant drop in people showing up voluntarily for court dates, or some person out on his own recognizance does something stupid, this may be a short experiment. But it seems worth trying. Just about everything involving money in our society, to use Jim’s phrase, “disproportionately burdens the poor.”

    I think Ms. Ogunkeyede has a point. Yes, some bail decisions are made by magistrates but in those cases – I think, not my area – it is easier to reverse if the judge is willing to do something else.
    In those instances will the local prosecutor stand by silently, or actively advocate for trusting the defendant to come to court without a cash bond? Fair question.

  2. Dear Jim,

    Why was posting bond first established? We should try to understand the history and rationale of posting bonds and the likely results before embarking on such an experiment. What if the Left wants to abolish prices on items and make everything a matter of “donation”, i.e. trust, should we do it? I think this and the enfranchising of felons is going to go very badly. We have denigrated our ancestors to such an extent that we are getting to the point where even cannibalism and incest will be tried since we have so convinced ourselves of their foolishness with all sorts of taboos. The past two or three generations have done a complete “mind dump” on all traditional knowledge and experience. I guess this is the horror of “beginning the world anew.” A land-use version of this was the totally zoned city and suburb with “separated uses,” complete with auto dependence. At the time, the Forward Thinkers promised it would be “Progress.” Seems like one can sell just about anything as long as your audience is convinced it is all part of “Progress,” becoming self-aware “gods.” And such thinking goes back to the Revolution, in one form or other. And everyone is just so free and easy with their opinions, too.
    It doesn’t have to be this way, but with the proud it does. Full disclosure: My wife and I foolishly posted the bond of someone who later “jumped.”

    Sincerely,

    Andrew

  3. I don’t think I fully understand the law with respect to this – although posting bond seems like it has been around awhile.

    It’s also true that a lot of things disproportionately affect the poor – but that should not mean it’s okay for govt policies and the criminal justice system to join that crowd especially when ultimately it means people lose their jobs or end up costing taxpayers money for unemployment/entitlements/prison.

    Finally, people DO make bad choices – but it’s not just the poor that do – it’s just that the poor are closer to the edge when they do…. we have lots and lots of folks who have bad credit or have lots of traffic tickets that are not “poor”.

  4. My understanding of this area is pretty much limited to watching reruns of Dog, the Bounty Hunter. However, I think the following are points to consider:

    1. More affluent people are assigned higher bonds. While that doesn’t help somebody who can’t afford any bond price I think there is an effort to make the bond big enough to hurt.

    2. Bonds are largely posted by bail bond outfits. While these organizations certainly have a reputation for shadiness they also provide a service. Mainly, they lend a large percentage of the bond price to people accused of crimes and go find those people if they don’t show up for trial. Effectively, the accused finance their own potential retrieval. Isn’t the alternative more marshals, police, etc to track and find the people who inevitably decide not to show up for trial?

    I certainly get the idea of “innocent until proven guilty” and putting people in jail based only on being accused is something of a violation of that principle. However, “ensuring the domestic tranquility” is also a goal of government and putting dangerous people back on the street seems to violate that principle.

  5. Let us start with the basic premise that it is really expensive to be poor, to wit, the prices charged in inner city markets, the cost of bond. etc.

    That being said, it is my experience that the people you least expect to be able to post bond somehow manage to come up with it if they are innocent, were only riding in the car where the drugs were found, or otherwise have a case where it’s reasonably certain that the Commonwealth won’t be able to prove its case beyond a reasonable doubt. Otherwise, they just sit in jail and collect jail credit against the time they are reasonably certain to get from the judge. There are many cases in which the attorney, with the agreement of the client, doesn’t even bother to file a bond motion. Further, the guy who jumps bond is usually not the guy who is innocent. The innocent (or at least less guilty) guy is usually confident (albeit sometimes mistakenly, but that’s another discussion) that the system will exonerate him.

    Consideration of the issue of cash bonds usually gets hung up in high blown principles instead of what happens on the ground. No matter what system you have that is consistent with the notion of innocent until proven guilty, there will be costs associated. The question is: who bears the cost? Is it the taxpayer who must fund the pre-trial services department that takes the place of the bondsman in supervising the defendant? What is the cost of running a drug court that puts the man back on the street? Are the demonstrably better than jail?

    It’s fine to have the discussion, but politically, on both sides of the aisle, there is not much percentage in spending a lot of time on these issues.

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