Virginia: Richmond Commonwealth Attorney Herring: Bye-Bye Constitutional Right to Bail, Hello Preventative Detention/Bail Reform

Richmond Commonwealth Attorney Michael N. Herring scraps the Constitutional Right to Bail in Richmond – introduces “discussed policy” to detain offenders at-will.

April 24 2018

Richmond Commonwealth Attorney Michael Herring yesterday made the announcement that he is implementing a new policy in Richmond—prosecutors will make a bi-polar decision to lock someone up and throw away the key or release them for free on a government program that is supposed to somehow provide incentives to return to court.

“Prosecutors in the city of Richmond, which has one of the busiest criminal court dockets in the state, will no longer seek cash bail bonds for defendants awaiting trial.” – Richmond Times Dispatch

There are a few critical problems with the no money bail system coming to Virginia. 

Bail is a constitutional right.  To suggest that someone can never request, and have imposed, a financial condition of bail would be unconstitutional.  Does Herring’s policy go that far?  We don’t know because he doesn’t actually have a written policy.  He has a “discussed” policy, according to him.   We reached out to Mr. Herring for information regarding his new program, and he replied that “I don’t have responsive documents or records to send to you. This is a policy discussed and adopted in our office.”  So then, Mr. Herrings office has no written policy on the new policy which Mr. Herring states is a more fair policy.

“Herring said prosecutors in his office are now instructed to make a good-faith assessment of a defendant’s risk to the community.” – Richmond Times Dispatch

So, what happens when the right to bail is denied in favor of preventative detention or release for free for the rest? 

Well, as we’ve seen in every system that has preventative detention and no bail, detention becomes the norm.  In New Jersey, for example, prosecutors are now seeking detention in 44% of all cases, and detaining about 1 out of 5 defendants without the possibility of bail.  While jail populations did drop, the drop the year prior to bail reform was larger than under bail reform.

In the federal system, preventative detention has increased by over 300% since 1984.  What does Herring’s policy tell prosecutors to do when they can’t seek bail—release everyone or detain everyone?  Well, there isn’t a written policy, so we don’t know.  Herring promises to “monitor” what is going on because he is “sensitive” to preventative detention, but it doesn’t look like he’s going to worry about it until it happens.  More sound policy?

Deciding risk in criminal justice has been a hot topic since ProPublica found that risk a popular risk assessment tool was biased against African-American defendants.  While the tool predicted equally across racial groups, when it got it wrong, it was more damaging to African-American defendants—44.9 % of African-American defendants who did not recidivate were labeled by the risk assessment tool as recidivators.

In Virginia, these non-transparent risk computers are used statewide in the context of pretrial release and we’d like to know what Herring’s view on this issue is since he is advocating this shift in Richmond.

When we asked him what information he has that suggests that the new risk system he is going to implement is going to work better and be free of bias – once again – no documents, no policy.   In other words, Herring does not have any information on whether the Virginia risk process he is going to have prosecutors rely on is biased or not.

Jurisdictions that have gone to the risk-based system and moved away from bail have left their criminal justice systems in shambles.

In Harris County, Texas, 40% of defendants are failing to appear in court.  Police in New Jersey are reporting that people are getting out over and over and over again on repeat crimes, with judges having only set bail in 44 in over 40,000 cases last year in New Jersey.  In Lucas County, Ohio, the risk-based system backfired—jail costs went from $27.7 million in 2015 to an anticipated $34.2 million in 2018 during the time period when the risk-based bail system was implemented.

We’ll be watching to see if Herring’s grand bail experiment will work.  Of course, we don’t know what he is telling his prosecutors to do since his policy is nothing more than water cooler talk apparently.

Will they, like other states, substitute preventative detention in some of these cases, or is Herring telling prosecutors to simply throw open the jail doors?  I guess we won’t know until later since he didn’t put pen to paper.

Based on what we’ve seen in other states, we’ll bet that repeat criminals will thumb their nose at the new system – and Herring’s experiment will prove that there’s a constitutional right to bail for a reason—it works.


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