Bond hearings are often the single most important aspect of a criminal case. That statement would likely make even an experienced criminal attorney raise an eyebrow, but I've learned it's true. Can you imagine if you were thrown in jail today? What would happen to your kids? Who would pay the rent? How long is your employer going to keep your job? It’s not an exaggeration to say that holding someone on no bond can do serious and irreparable harm to their life. The stakes at bond hearings are incredibly high.
That stands in sharp contrast to how the system and the players in the system treat bond hearings. In Virginia Beach, there is no public defender present at arraignments (called first appearances in some other states). A defendant can waive having an attorney and go forward with a bond hearing, but they are usually (and wisely) discouraged by judges from doing so. The result is that many people sit in custody for several days if not even longer before having a bond hearing.
That’s a massive problem because studies have shown that people who sit in jail for even a handful of days are far likelier to reoffend when they do get out. According to the Virginia Department of Criminal Justice Services, the 2 year recidivism rate for defendants rated as low risk increases 35% for those held in jail 4-7 days before bonding out and increases 51% for those held for 8-14 days. In other words, delaying bond hearings for even a few days can change the course of someone's life. That's not good for them, and it's definitely not good for the community. If the ideals that we claim are important such as the presumption of innocence and due process are going to mean anything, we have to do better. That starts with putting systems in place so that legitimate bond hearings are happening at arraignment rather than after defendants have already served several days behind bars.
The problems with bond don’t end there. Even when bond hearings are held in a timely manner, too many people are being denied bond. In United States v. Salerno, the then Chief Justice of the U.S. Supreme Court William Rehnquist wrote, “In our society, liberty is the norm, and detention prior to trial or without trial is the carefully limited exception.” I wholeheartedly agree with those words, but the reality on the ground doesn’t match the lofty rhetoric. In Virginia, we use what is called the Virginia Pretrial Risk Assessment Instrument (VPRAI) as a tool that gives judges a recommendation for what type of bond if any should be granted. In 2015, 43% of defendants screened on the VPRAI were recommended for no bond. 43%! No reasonable definition of “carefully limited exception” can be squared with keeping that percentage of people in jail before any evidence has been presented against them. (The VPRAI has recently undergone revisions and is supposedly going to recommend more bonds; we shall see). The scary thing is that those statistics don’t tell the whole nasty story of the current bond situation. According to this NBC news article and several studies, more than 10% of people in jail have a bond but can’t afford to post it. Of those people, more than 90% have a bond of $5,000 or less. In other words, we’re keeping people in jail for the sole reason that they’re too poor to get out.
Some cynical people might say something along the lines of, “Well, then they shouldn’t have committed a crime.” But even the strongest believers in law and order can’t justify the consequences of keeping this many people in jail before trial. Research has consistently shown that whether a person receives a bond has a massive impact on whether he’s ultimately convicted and the severity of the punishment he receives. According to the Virginia DCJS, defendants held in jail during the entire pre-trial period are more likely to be convicted; four times as likely to be sentenced to jail, three times more likely to receive longer sentences, and twice as likely to receive long prison sentences. This squares with my experience as a defense attorney. The sad truth is that a lot of criminal defendants accept guilty pleas to get out of jail in cases where they had possible defenses. When incarcerated clients do have trials, it's often much more difficult to put together an effective defense because the client isn't available to track down witnesses and other important evidence.
The bottom line is that you can’t believe in the presumption of innocence, equal protections, and due process and also believe in keeping this many people in jail before trial.
The good news is that we have a solution. Pre-trial services is essentially pre-trial probation. A defendant has to check in with a pre-trial officer. Pre-trial officers conduct drug screenings when court ordered, check criminal records, help to coordinate treatment, and send reminders about court dates. The statistics show that pre-trial is tremendously effective. Statewide in Virginia for 2015, 96% of defendants placed on pre-trial appeared for their trial date. 95% had no arrests while on pre-trial. The overall compliance rate was slightly lower because defendants had other issues such as positive drug screenings, not showing up for appointments, not showing up for treatment, etc. But even when factoring in those cases, the compliance rate is extraordinarily high. The overall compliance rate is around 85%. We can’t realistically hope for much better than that. It’s impossible to completely eliminate people committing new crimes or failing to appear for court. The only way that we can guarantee that every person on bond will appear for court and stay out of trouble is to keep every single person in jail. That would be a moral disaster and completely unconstitutional. We can and should be satisfied when we have a system that results in 95% of people showing up for court and staying out of trouble.
Another way to improve the system is by increasing the use of unsecured bonds ( also called non-cash bonds or PR bonds). Statewide in Virginia for 2015, a little over 2/3 of bonds were secured bonds meaning that a person has to pay money before being released from jail. That percentage is way too high. According to Virginia DCJS, there was no statistical difference between pre-trial success rates for those on unsecured versus secured bonds. In fact, people on unsecured bonds were slightly more likely to be successful on pre-trial. There certainly could be some bias in those numbers because low risk defendants are more likely to be released on unsecured bonds, but the numbers are still eye opening. At a minimum, I think it’s safe to say that the percentage of PR bonds should be increased significantly especially in cases where the defendant is being placed on pre-trial. The money saved can help both defendants and crime victims by being applied toward restitution and treatment.
I want to emphasize that this is not a partisan issue. I'm suggesting common sense solutions that are supported by real facts. Conservatives and liberals can both agree that keeping people in jail solely because they’re poor is a bad thing. It's obvious that a system that makes it more likely that people become repeat criminals is counterproductive. Everyone can agree that a system that encourages innocent people to plead guilty is frightening. This is not about politics, it’s about ensuring faith in our justice system.
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