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Criminal Justice Advocates Say Transparency Needed To Shape Bail Reform

Virginia lawmakers will take a hard look at the state’s bail system this General Assembly. But it might be too early to expect sweeping changes. Supporters and opponents of cash bail say the Commonwealth needs to, first, get a better understanding of what’s actually happening inside Virginia jails.

For 18 years, bondsman Keith Bourne has been bailing people out of jail in Staunton, Virginia. He sees his job as a public service.

“The whole point is to make sure that we get them out, they don’t miss any work, and as little cost to the family as possible,” Bourne said.

It’s January 2nd and Bourne is at Middle River Regional jail to meet new clients. One man has been booked on theft charges and has to pay the court $1500 to get out of jail.

He’s visibly upset, sobbing as Bourne completes his paperwork.

“I need you to remain calm, okay? So they can get you booked in. Quit, okay? It will be fine,” Bourne tells him.

On this day, Bourne’s client is able to scrape together the required 10 percent of his total bail to be released. The bondsman covers the remaining balance, for now.

“I would say I maybe have one or two a week that don’t have the money,” Bourne said. “And then I try to work with them.”

Bourne does that by, sometimes, giving them more time to come up with the full amount later or holding on to their car title. If the defendant shows up to court, the bail bondsman gets their money back.

The defendant forfeits what they pay the bondsman.

Shining a light on the process

The amount of bail is determined by a magistrate-- a judge with limited authority. Magistrates often consider factors like the severity of the crime and the defendant’s flight risk. But they have the discretion to deny someone bail or set their bail at any amount they choose.

National studies show people of color are often assigned higher bail.

Virginia-specific evidence of this is anecdotal, because the state doesn’t keep track.

Many criticize bail amounts in the Commonwealth for being arbitrary, because there’s no set bail schedule, and the magistrate has so much authority.

Low-earning Virginians get stuck in jail all the time, said Brad Haywood, chief public defender in Arlington County and Falls Church.

“Our office probably argues usually five to ten new cases a day and all the time, even if a bond is reduced, it won’t be enough to the point where they can actually pay it and they end up sitting their until their trial date,” Haywood said.

Last year, Florida lawmakers took action to start tracking a defendant’s experience through every step of the criminal justice system.

Haywood says without this type of information, it’s difficult for policy makers to understand the scope of the problem.  

“The reason we don’t have the information we need to make the changes that we ought to make, is because of how difficult it is to get the information,” Haywood said. “Even jails. The people who are most directly responsible, people who are being held with a cash bail they can’t post, they don’t even know.”

Delegate Jennifer Carroll Foy (D-Prince William), unveiled a proposal this week to require jails to collect detailed data on the bail process and provide it to the state.

“We want that sunlight to disinfect what’s happening to defendants, people, citizens, who are being held, pretrial, without being found guilty of a crime. And they should not be. Because we all know the collateral consequences of losing their housing, their kids, their job,” Foy said. “And we want to do what’s right and responsible.”

The rub, however, might be the part of Foy’s bill that calls for judicial officers to err on the side of pretrial release, rather than confinement. According to a study by the Virginia Crime Commission, about a quarter of people arrested in the Commonwealth are held without bail entirely. And releasing more alleged offenders back into the community could be a tough sell in Virginia, a state in which many policy-makers have traditionally valued a tough-on-crime approach to law enforcement and criminal justice.

Whittney Evans is VPM News’ features editor.