By Ned Oliver
(VM) – A circuit court judge in Fairfax appears to be the first in Virginia to rule that keeping an indigent defendant in jail in lieu of a cash bond is unconstitutional, writing that it violates the Due Process Clause by forcing poor people awaiting trial to remain confined in jail while the wealthy walk free.
“The inherent arbitrariness of the use of the cash bond is as palpable as it is counterproductive,” Judge David Bernhard wrote last week in the opinion, which addressed the case of a man who could not pay a $2,500 cash bond on a DUI charge and was held in jail for at least five days even though he was unlikely to serve jail time if found guilty.
The opinion is not binding and only speaks to the facts of the case in which it was issued, but could be read as a message to lower court judges in Fairfax to reconsider how and when they use bonds.
Andy Elders, the deputy public defender in Fairfax and the policy director of Justice Forward, called it important because it lays out an argument for why cash bond is unconstitutional and serves as “a clear nod to the legislature to say, ‘Hey, are we going to deal with this or what?’”
Bernhard has been outspoken on the issue and notes in his opinion that he has not imposed cash bond conditions on defendants since he was appointed to the bench in 2017, citing a 2013 study by the Virginia Department of Criminal Justice Services that found detaining defendants pre-trial for even a short amount of time made them more likely to lose their residence and jobs while increasing their likelihood of committing new criminal offenses.
His opinion cites remarks by former Richmond Commonwealth’s Attorney Mike Herring made when he announced that his office would no longer seek cash bond. At the time, Herring said he’s never received nor heard of training that would help him assign a monetary value to an individual’s risk or likelihood of appearing for their court date.
“So, 20 or however many years ago when I was a junior commonwealth’s attorney and the judge looked down at me and said ‘Mr. Herring, what’s your recommendation on bond?’ I literally pulled it out of my ass,” Herring said. “I’d think, ‘OK, it’s a felony, seems like it ought to be four figures, $3,500 sounds right.’”
Like Herring, Bernhard wrote that position does not mean he is in favor of releasing people who pose a danger to society — only that money should not play a role in pre-trial release decisions.
“Removing cash from the equation merely has allowed the Court to focus on risk, unclouded by the false comfort that cash terms may somehow warrant the dangerous safe for release,” he wrote.