Virginia Attorney General Bail Reform Proposal – Read Between the Lines

In a letter to the Virginia State Crime Commission this month, Virginia Attorney General Mark R. Herring outlined his vision of bail reforms which include the expansion of government run pretrial services and limiting judicial discretion.

Virginia’s top cop seems to have followed the lead of other jurisdictions across the country in moving toward some significant bail reform.  Despite 110 national civil rights groups calling for an end to the use of pretrial risk assessments, instead General Herring would expand the use of such assessments.  Despite concerns of the expansion of electronic incarceration and over supervision of low level offenders, he instead calls to expand pretrial services to all jurisdictions in Virginia, thereby guaranteeing a new generation of electronic incarceration by the state that trammels individual liberties and eroded the presumption of innocence.

Jeff Clayton, Executive Director of the American Bail Coalition, responded to AG Herrings report to the commission in an open letter addressed to Virginia State Crime Commission dated November 6, 2018…

Dear Senator Obenshein,

We are writing in response to a letter sent to you by Attorney General Herring, explaining what he considers to be the area of focus for what we can assume will be a continuing policy and legislative conversation on bail reform.  We are writing jointly as a national trade association of insurance corporations who underwrite bail agents nationally and in Virginia and also the statewide association of licensed bail agents within Virginia.

First, we would submit that Virginia’s bail law is constitutional, and reforms are not needed in order to avoid “Equal Protection Concerns.”  Both the U.S. Courts of Appeal for the Fifth and Eleventh Circuits have recently held that the use of bail schedules is constitutional, as is the use of monetary bail, provided that the defendant is allowed adequate due process to argue his or her case for a bail reduction, including alternatives.  In ODonnell v. Harris County, Texas II (Houston, Texas, enclosed), the U.S.  Court of Appeals for the Fifth Circuit upheld a federal judge having held the bail system unconstitutional because of lack of adequate due process (defendants were told not to speak before a magistrate and there was no meaningful review of bail for some time after).  The Court however allowed the continued use of a bail schedule, required a 48-hour review of bail, including requiring the defendant to fill out an affidavit of indigence.

In Walker v. Calhoun, Georgia (enclosed), the new standing order on bail was held constitutional by the U.S. Court of Appeals for the Eleventh Circuit because in that case there was a bail schedule but also required review within 48 hours or then an automatic release from custody.  Virginia’s bail system does not suffer from any of these infirmities in our judgment, and we believe the system is absolutely constitutional.  We are dismayed that the Attorney General would accuse the system of being potentially unconstitutional, but then fails to cite which locality is operating such a system and then further calling into question whether his office would defend the constitutionality of Virginia law, which we feel is his duty.  We also feel any solutions proposed by the Attorney General would not remedy the issue he raises, so we are left stunned that the system is unconstitutional but there is no posited way to fix it.

The Attorney General then cites post-conviction precedent for the proposition that jailing someone who cannot pay a fine is just like bail.  Those cases do not apply in the bail context.  Bail is governed by the Eighth Amendment.  In addition, the Attorney General cites the federal statute, but the federal government has implemented a no-money bail system by virtue of the Bail Reform Act of 1984 and has no right to bail.  Instead, it relies on a system of preventative detention, which, like Maryland, has nearly tripled the pretrial population since implementation. Further, both Federal Courts of Appeal that looked at these issues held that there arises impermissible discrimination based on poverty only if the right to due process is denied.  Only then does the system discriminate.  The safe harbor in both ODonnell and Walker (and which frankly formed the basis of nearly all of the settlements in these bail cases from Varden v. City of Clanton, Ascension Parish, Dothan, City of Dodge City, etc.) was that all persons will be heard on a bail set by a bail schedule within 48 hours.  Virginia’s system does not suffer from these deficiencies, and we think if the Attorney General believes that Virginia’s system lacks such due process thereby creating impermissible discrimination on the basis of poverty, then legislation should be proposed to fund the courts, prosecutors’ offices, and defenders to require such appropriate and adequate due process.

In addition, a closer read of the Attorney General’s cite to Bell v. Wolfish is that it instead stands for the exact opposite—that the presumption of innocence does not apply in the setting of bail.  Instead, it is an evidentiary presumption that must be overcome at trial.  Said Justice Rehnquist, writing for the Court:

The presumption of innocence is a doctrine that allocates the burden of proof in criminal trials; it also may serve as an admonishment to the jury to judge an accused’s guilt or innocence solely on the evidence adduced at trial, and not on the basis of suspicions that may arise from the fact of his arrest, indictment, or custody, or from other matters not introduced as proof at trial. Taylor v. Kentucky, 436 U. S. 478, 436 U. S. 485 (1978); see Estelle v. Williams, 425 U. S. 501 (1976); In re Winship, 397 U. S. 358 (1970); 9 J. Wigmore, Evidence § 2511 (3d ed.1940). It is “an inaccurate, shorthand description of the right of the accused to ‘remain inactive and secure, until the prosecution has taken up its burden and produced evidence and effected persuasion; . . . ‘ an ‘assumption’ that is indulged in the absence of contrary evidence.”

Taylor v. Kentucky, supra at 436 U. S. 484 n. 12. Without question, the presumption of innocence plays an important role in our criminal justice system.

“The principle that there is a presumption of innocence in favor of the accused is the undoubted law, axiomatic and elementary, and its enforcement lies at the foundation of the administration of our criminal law.”

Coffin v. United States, 156 U. S. 432, 156 U. S. 453 (1895). But it has no application to a determination of the rights of a pretrial detainee during confinement before his trial has even begun.

That said, we do agree with the Attorney General that the right to counsel under the Sixth Amendment is an important right in the setting and review of bail, and people should have their day in court when it comes to bail.  We hope that the further study and better definition of that problem can be done so that the legislature can look to fill any gaps in that system.  The right to counsel is fundamental, and we do not want people to remain in jail when, if they had competent counsel, a judge would see otherwise and reduce or eliminate their requirement to post a bond.

Second, the Attorney General’s criticism of the current system is that he appears not to trust judges to do their jobs.  Instead, we trust the judges to do their jobs.  Judges set what they believe to be appropriate bail based on all of the statutory factors, in many cases already considering a risk assessment tool, something that Virginia is nationally known for employing.  If a bail is not otherwise excessive, then, yes, it may serve to detain someone in jail.  Nonetheless, we think the system of judicial discretion to set bail that is currently in place should not be disturbed.  We should not embrace the system of preventative detention and release, and in fact the Attorney General notes that Maryland’s change of the rules to go to this concept completely backfired.  In fact, in a recent news article, Washington County, Maryland has increased its jail population of those held without bail from 565 prisoners in 2016 (before the reform) to up to 947 right now, a 68% increase.  Removing judicial discretion to set bail forces a system of preventative detention, which will be likely to upset the balance in the bail system.

Third, the Attorney General assumes, without evidence, that all persons for whom a bail is not posted cannot “afford it.”  Instead, bail is typically a third-party provided benefit that most often does not depend on the resources of the defendant.  It is more akin to a test of your ties to the community, and whether the community believes in you.  In addition, many defendants will be going for a plea deal involving time served, and that calculation is never backed out of the equation, even though it is a significant amount of jail time that would otherwise be served and perhaps for longer durations.  Further, many are suffering alcohol abuse, substance abuse, addiction issues, mental health issues, and co-occuring disorders that the system is not addressing, the family of whom could choose to bail them out but choose not to do so due lack of alternatives for them.  In addition, there are many other reasons that defendants are held in jail.  Certainly, there are some for whom bail will not be posted.  But there is no right to “pretrial release” in America—there is instead a right to reasonable bail, a bail that is not excessive under the settled law on this continent for over 400 years.  The right to bail doesn’t guarantee release, and judges get motions for bail reductions all the time, and they decide these cases based on the facts and circumstances of each case.

In terms of solutions, the Attorney General is advocating for the status quo.  If the Virginia Risk Assessment system was fixing all of our problems in the last twelve years it has been used, as noted in the 74% of localities served by pretrial services, then why is there still a problem to be solved?  On the contrary, 115 national civil rights groups, including the NAACP and ACLU have recently called for an end to pretrial risk assessments in the United States of America, largely due to concerns of magnifying racial disparities in the system.  We have attached a copy of that letter.  Other research has conclusively proven that risk assessments do little to reduce pretrial incarceration and have little impact on reducing failures to appear or new crimes while on bail.  One other scholar blames the use of assessing risk on the modern generational expansion of the correctional and penal state.  Expanding risk assessment will not fix whatever problem the Attorney General may be looking to solve, and will prove a fruitless bureaucratic expansion in search of a problem that is not there to be solved.

Advocating for a “presumption of least restrictive” form of release is the second solution posited by the Attorney General.  Yet, Virginia law already requires this insofar as the bail set must be “reasonably fixed to assure the appearance of the accused and to assure his good behavior pending trial.”  This is another way of saying that a judge cannot pile on more than is necessary to assure good behavior and or to guarantee appearance.  In other words, the Attorney General is once again advocating for what Virginia already has in place.  In addition, the least restrictive bail has been the standard under the Eighth Amendment for all time as the U.S. Supreme Court noted in Stack v. Boyle.  Bail is “excessive” in violation of the Eighth Amendment when it is set at a figure higher than an amount reasonably calculated to ensure the asserted governmental interest.  If the only asserted interest is to guarantee that the accused will stand trial and submit to sentence if found guilty, then “bail must be set by a court at a sum designed to ensure that goal, and no more.” Virginia’s law specifically contains the “reasonably fixed” language, which is exactly what the Supreme Court has said requires a setting of bail that is no more than necessary to accomplish the appearance or assurance of good behavior.  Virginia already handles this issue.

Recommending that Commonwealth Attorneys forgo bail is also wrong-headed.  We believe local prosecutors, if they are present in the initial bail settings, should have discretion to recommend bail in cases where they think it is appropriate and that should not be an administrative decision made by the Attorney General.  As noted, removing the tool of setting bail and forcing a system of preventative detention will not work as we have seen in Maryland and at the Federal level.  It seems also an unbelievable recommendation that the legislature should fund the mass hiring of some unknown but likely large population of judges, prosecutors and defenders to conduct the contested bail hearings, when the Attorney General instead plans to then direct the mass of Commonwealth Attorneys so hired to instead roll over and agree with the defenders in all cases whatsoever.   This is no solution to whatever problem the Attorney General is attempting to solve.

Finally, the Attorney General argues that there should be a presumption of release for “low-risk defendants.”  Of course, he does not define with any particularity who the low-risk defendants are, i.e., whether the crimes they are accused of are low-level or whether, despite being charged with serious crimes, they are at a low-risk of either failing to appear or committing a new crime while on bail.  It is counter-intuitive, but nationally those accused of lower-level crimes are more typically more likely to fail to appear in court and more likely to commit a new low-level crime.  Those charged with higher level felonies, nationally have a lower risk of failing to appear or committing a new crime.  Recognizing this, it is important to realize that designating a particular class of offenders by type or class of crime (i.e., petty theft) is likely to target a population that is probably high risk of committing another petty crime and failing to appear.  The risk assessment process, of course, calls for divorcing the alleged crime from predicting the outcome, instead using a variety of factors.  Any definition of low-risk must embrace this distinction.  At bottom, we instead feel that judges are imposing the least onerous conditions of bail that they can to meet the statutory and constitutional purposes, they are weighing the facts and circumstances of each case, and they are making appropriate decisions.

That said, we as an industry have made many suggestions for bail reforms, including making sure there is adequate due process, and we would request that we be part of the process that leads to any reform. We are important stakeholder in Virginia’s system of criminal justice, and we believe we can also be part of the solution to any specific problems that arise.


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