Gavel

Commonwealth’s Attorney Michael Herring recently announced that his office will no longer recommend that cash bond be required of people accused of crimes in Richmond. This means that city prosecutors will stop injecting money into the non-binding recommendations they make to judges considering whether a person accused of a crime should be held in jail or released while the case is pending. Instead, prosecutorial recommendations will be reduced to the binary of “hold” or “release [with supervised conditions].” Undoubtedly, this move was meant to bring Richmond in line with the growing list of cities around the nation that have “ended money bail” in an attempt to prevent people from being held in jail simply because they are too poor to pay for their freedom. (It may be helpful to note that “bail” and “bond” are different but related concepts: Bail is release from custody under certain conditions, while a bond, a.k.a. a written promise to pay a specific sum, is a type of condition.)

It is encouraging that Herring has brought Richmond into this conversation about the problems with money bail. Still, a closer look at bail practices in Richmond and Virginia reveals that despite Herring’s good intentions, unilateral action by one player in the legal system is unlikely to bring about real change in a city and state where the pretrial incarceration rates exceed the national average.

First, this new policy is simply not the end of cash bond in Richmond. Here, as everywhere else in Virginia, bail decisions are first made at a magistrate hearing. These hearings happen behind closed doors, usually at the local jail. Not only are prosecutors not present for these hearings; the accused is also without the benefit of an attorney. Magistrates, who are not judges, are left to make bail determinations with little guidance, and often choose cash bond amounts not based in what a person can realistically pay.

At other times, magistrates set no bond amount, instead opting to hold people because Virginia law allows a magistrate to deny release whenever he or she believes there is probable cause to think someone is a danger or won’t appear. This is regardless of the level of the alleged offense and results in people charged only with misdemeanors being held with no ability to get out. Because the policy change at the commonwealth attorney’s office will have no effect on Richmond magistrate hearings, where cash bond and all other bail options remain, people will still have to contend with the life-altering consequences that can come from spending even one night in jail.

Moreover, questions remain about precisely when during the case Herring’s new policy will come into play and what effect it will have on judges. In Richmond, people detained after their magistrate hearings typically appear before the judge the next morning, though in other Virginia locales the wait can be longer. These appearances, conducted via video, are non-adversarial — meaning, they are not appearances where both the prosecution and defense argue before the judge decides if someone who has not even been convicted of the charges gets out of jail. So, while this is the earliest point where the new policy could kick in, it is only a matter of informal practice in Richmond that judges ask for the prosecutor’s position on release at this time.

Not only can the practice of Richmond judges vary, there’s no legal requirement that judges ask at all. (Outside Richmond, many judges never discuss bail during a person’s first post-magistrate appearance.) Even if Richmond prosecutors intend to stop making cash bond recommendations at this appearance, there is no guarantee judges will seek their input, let alone follow it. And, at this stage, whether a judge follows a prosecutor’s recommendation or independently decides to continue holding someone, practice in Virginia does not allow for an immediate challenge to that decision; instead, the defense must request a formal hearing at a future date while the client continues to languish in jail, increasingly exposed to harms like job loss, eviction, or lack of access to necessary medications.

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, especially if, without proper guidance, Richmond prosecutors begin to increase their recommendations to hold people pretrial. (To facilitate an impact assessment of the new policy, Herring should commit to publicly release any data his office has on pretrial detention in Richmond, and to track and release the same going forward.) Meanwhile, those in favor of bail reform around the city and state should continue to urge officials to seriously think about what steps must be taken to fix Virginia’s broken bail system.

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.

Adeola Ogunkeyede is the director of the Civil Rights & Racial Justice Program, based out of the Richmond office of the Legal Aid Justice Center, and a former New York public defender. Her program works to challenge the criminalization of poverty in low-income communities of color across Virginia. Email her at adeola@justice4all.org.

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