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Fairfax Judge: Cash Bail Is Unconstitutional

Court building
Though a Fairfax Judge ruled cash bail was unconstitutional, that decision alone won't lead to structural change across the state. (File Photo of Henrico Courts Building: Crixell Matthews/VPM News)

A Fairfax judge ruled earlier this month that cash bail is unconstitutional. But the opinion doesn’t mean defendants who can’t afford to get out of jail can now go free.  

In his November 6 opinion, Fairfax Circuit Court Judge David Bernhard wrote, “The inherent arbitrariness of the use of the cash bond is as palpable as it is counterproductive.”

It may be the first time a Virginia judge has issued an opinion opposing the practice. 

Bernhard was hearing the case of a man who was being held at a Fairfax jail because he couldn’t pay the $2,500 cash bond on a DUI charge, an offense that was not likely to result in jail time. 

Bail or a bond is the money a defendant pays to get out of jail while they await trial. The court holds onto that payment to ensure the defendant’s return. Critics say cash bail favors the wealthy, disadvantages low-income and poor people, and isn’t any more effective than a text message reminder. 

Bernhard concluded that cash bail violates the due process clause of the U.S. Constitution. 

He noted a study by the Virginia Department of Criminal Justice Services on the damaging impact cash bail has on indigent defendants. Even if low-risk defendants spend as little as two days in jail, the study says they’re more likely to lose employment and housing and more likely to commit new crimes when they’re released. 

Bernhard said it’s because of this study that he hasn’t imposed cash bail conditions since he took the bench in 2017. 

Bryan Kennedy is a Fairfax public defender and policy director with Justice Forward Virginia, a group that advocates for criminal justice reform and ending cash bail. 

Although he agrees with Bernhard’s opinion, he said it won’t accomplish the broad changes Justice Forward Virginia seeks.

“One circuit court judge in one circuit, writing an opinion that won’t apply to anyone else but him, unless another judge finds it persuasive,” Kennedy said, but, he thinks it’s a sign of an incremental shift taking place.

“I think there’s an increasing number of judges in Virginia who are of that opinion,” Kennedy said.

A big hurdle to reform is that there’s no way to know the scope of the problem. There’s scant data on the number of people in Virginia who are in jail because they can’t afford to post bail. And lawmakers in recent years have abandoned legislation to require jails to collect that data. 

The Virginia Crime Commission is finishing a data projectthat followed statewide arrests during July 2017 to evaluate the effectiveness of alternatives to cash bail, broadly referred to as pretrial services. A report on that project is expected to be released ahead of the 2021 legislative session.

In 2018, Virginia Attorney General Mark Herring called for reforms to Virginia’s cash bail system, citing constitutional concerns and the availability of alternatives that cost significantly less than incarceration. 

The Virginia Bail Association agreed reforms were necessary, but opposed non-financial alternatives, arguing financial conditions of release were more effective. They often cite a 13-year-old Department of Justice study that looked at pretrial practices of the 75 largest counties across the country. The study found that bail bonds had a 18% failure to appear rate, compared to 30% with pretrial services. 

Dave Bourne, President of the Virginia Bail Association, says Virginia’s bail industry is a well-regulated industry that ultimately saves taxpayer dollars. 

“The state of Virginia is not a state that sets these excessive bail amounts. We don’t set $50,000 bonds on DUI defendants,” Bourne said. It’s one of the lowest jurisdictions in the U.S.”

But as Judge Bernhard noted in his opinion regarding the man with the $2,500 bail amount for a DUI: “For him, any bail causes detention, due to his lack of financial resources.”

Whittney Evans is VPM News’ features editor.
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