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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.

This story originally appeared at VirginiaMercury.com.

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(10) comments

SuperNova

Too bad you won’t do anything for anyone who has been a victim of this in the past. It’s sick that you can honestly say you thought of someone’s bond out of your ass. These are human life’s we are talking about.

Citizen52

That was certainly a crass and insensitive remark from a State elected official but Mr. Herring has changed his legal opinion. He has probably evolved over time to understand that it is unfair except in cases where the defendant poses a safety risk.

Stoptheinsanity

What a pathetic judge. Just make drinking and driving legal.

Bigfoot

LOL. How do you get this out of this story? Reading comprehension means something.

hello190

From the article:

“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.

covid2021

RIP

Citizen52

Re-read the article, Big. Reading inference is a higher level of comprehension.

yourenotthebossofme

While curtailing or eliminating cash bond based on an accused's poverty and/or the potential risk to the community is a good thing, doing so has no legal basis in the Constitution, the Eighth, or the Fourteenth Amendment. Bail/bond practices were well established before the Consitution was written and well understood by the Constitution's framers. They left it as a matter of policy to state/local authorities or a matter of judicial discretion in individual cases. Any state legislature is free to pass a law prohibiting bail/bond at any time if that is what is desired by citizens of a state.

Soily

Liberals better be careful with this kind of thinking. Financially torturing their victims is liberal standby in keeping the masses in line. It's like fining famers $100,000/day for violating a questionable wetland determination. Even when you know the technical determination is wrong, it will take weeks to prove it so you can't fight it and risk bankruptcy if an activist court rules against you. Punishment should fit the crime and everyone deserves the ability to defend themselves whether you are a drunk bum or a farmer netting $80,000/year.

AlfredP

i think judges should be held liable for their actions

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