Last month, Richmond’s Commonwealth Attorney Michael Herring came out with a new policy to end cash bonds for criminal offenses in the city of Richmond.

His reasoning is that it is unfair, and since the 10% bond premium paid to the bail bondsman does not deter defendants from re-offending, cash bonds should be ended. Quoting from the Richmond Times, “It strikes me as unfair, and it doesn’t ensure anything,” Herring said. “If I’m convinced that I need to offend, then I’m not going to keep my peace because I’ve paid 10 percent of a $5,000 bond. It just doesn’t work out that way.”

It’s obvious Herring is offering a red herring. No one has ever claimed the 10% bail premium leads to fewer instances of defendants re-offending. It’s an absolutely ridiculous assertion.

The clue to what is more likely his motive for ending cash bail was his use of “unfair”. The typical bail reform soundbite is that it is unfair to have some defendants remain in jail because they are unable to come up with the 10% bond premium. Rather than find a way to accommodate the indigent defendants (which is why pretrial services was created), their solution is to end all cash bail. Ending cash bail is the true agenda of the bail reform movement, regardless of the negative consequences it brings to our criminal justice system.

Also, the big point Herring is avoiding is how ending cash bail will affect the number failure-to-appear (FTA) cases in the Richmond courts. Studies have consistently shown secured bonds significantly outperform all other public forms of bail in this aspect. For example, a 2004 study entitled The Fugitive: Evidence on Public Versus Private Law Enforcement from Bail Jumping, found “the data consistently indicate that defendants released via surety bond have lower FTA rates than defendants released under other methods”¹.

The reason for this is the relationship the defendants have with their friends and loved ones, who, along with the bondsman, are typically financially responsible for the bond. It seems obvious Herring is going out his way to avoid this inconvenient fact.

As a bondsman, I could offer numerous anecdotal examples of defendants who have either skipped court or were about to skip court where the cosigner ensured the defendant attend court or were instrumental in retrieving the fugitive.

I had one case where the father cosigned for his son. After his son fled to another state, the brother of the fugitive informed me on his brother’s location which resulted in an immediate apprehension. I later spoke with the informant-brother. He told me the only reason he gave me the information was because he did not want to see his father pay the bond and believed it was wrong for his brother to take advantage of their father. These types of scenarios can never happen with any type of public bail mechanism. It also costs the taxpayer nothing.

Later in the article, Herring states, “I think it should increase the number of persons managed or supervised in the community… I hope we decrease the number of pretrial detainees.”

These two statements encapsulate what is wrong with the bail reform agenda. With the understanding that managing or supervising defendants actually means assigning them to pretrial services, Herring’s first statement calls for placing more defendants in Richmond’s pretrial services agency. His second statement places “hope” that it will relieve the Richmond’s jail population of defendants despite the overwhelming evidence to the contrary.

I’ve witnessed and written extensively on how pretrial services degrades our criminal justice system, exploits and entraps defendants, and destroys the principle of ‘innocent until proven guilty’ because it places defendants on probation prior to being tried. When Herring recommends increasing Richmond’s pretrial services’ workload, it comes across as a politically expedient soundbite rather than a serious proposal to an issue.

Given that Virginia’s Pretrial Services Agency’s own study admitted that opting for public bail mechanisms and reducing cash bonds actually increased the pretrial jail population, Herring’s hope that this will help alleviate the defendant population in the Richmond City Jail is unfounded and irresponsible.

Before proceeding down the path of removing cash bail, perhaps the following questions should be asked of Michael Herring:

1. You’re proposing an increase in the number of defendants supervised by pretrial services. Do you have an estimate of how many defendants will be added to Richmond City’s pretrial services’ workload, as well as the added cost?
2. Have you had any discussions with pretrial services to ensure they are equipped to manage more defendants?
3. If you were arrested and given the choice of either a $2000 secured bond or pretrial supervision while awaiting trial, which would you choose and why?
4. What are the real and potential costs to the defendant assigned to pretrial services?
5. If being incarcerated prior to trial is the same as being incarcerated as a punishment after being tried and found guilty, is being supervised under pretrial services the same as probation?

Richmond’s Commonwealth Attorney Michael Herring’s new policy will further degrade the Richmond’s criminal justice system resulting with an increase in the number of FTAs, higher costs to the taxpayers, and an increased workload for the courts and law enforcement. The worst blow from this will be felt by Richmond’s poor and minorities, where they will be increasingly ensnared in the criminal justice system by pretrial services.

Notes

1. Helland and Rabarrok, The Fugitive: Evidence on Public Versus Private Law Enforcement from Bail Jumping, Journal of Law and Economics, the University of Chicage(2004), pg 96. Web. 14-May-2018