CASH BAIL score suspects using a “validated risk assessment tool” based on the probability of FTAs, the seriousness of the crime, and the likelihood of recidivism. 68 Those regarded as “low risk” or “medium risk” will be released on personal recognizance, 69 while higher risk individuals may or may not be released with supervision following a “preventive detention hearing.” 70 In North Carolina, the pretrial release pilot program allows “judg-es to set an unsecured bond,” 71 but the new pretrial release policy involves only “people charged with low-level offenses.” 72 North Carolina law declares that bail can be set only if the court determines that the accused will use his liberty to fl ee, pose a danger to the public, destroy evidence, suborn perjury, or intimidate a witness. 73 Also, in recent years, several of the jurisdictions that have considered legislative proposals to either alter or abolish their money-bail systems include New Jersey, Maryland, Kentucky, Colorado, and New Mexico. 74 In New Jersey, pretrial justice reform has virtually abolished money bail. In 2014, New Jersey lawmakers “passed an overhaul of the state’s bail system.” 75 New Jersey’s Bail Reform Law took effect in 2017. 76 By using a pretrial risk assessment called the Public Safety Assessment (PSA), judges decide whether defendants are detained before trial based on an analytic risk assessment of fl ight or danger to the community. 77 The Pretrial Justice Institute awarded New Jersey an “A” grade, as the state’s pretrial jail population declined by 20 percent after one year under the newly re-formed system. 78 In addition to the substantial jail population reduction, implementing the PSA has resulted in lower crime rates in New Jersey. 79 Also, the District of Columbia already has a cashless bail system, as local courts in D.C. eliminated cash bail in the early 1990s. 80 The Pretrial Services Agency for D.C. asserts that in 2015, 90 percent of released defendants appeared in court for all scheduled trial dates. 81 In 2017, the district’s courts released 94 percent of defendants without cash bail — 88 percent appeared for “every court date.” 82 Another example of how pretrial services have altered an entire judicial system is Lucas County, Ohio. In 2016, by participating in the Safety and Justice Challenge through the MacArthur Foundation, Lucas County was able to meet its goal of “advancing fair practices and reducing the jail popula-tion.” 83 Using the PSA, the county reduced its jail population by 22 percent after only one year. 84 In addition to a sizeable jail population reduction, implementing the PSA has also result-ed in lower crime rates. Thus, pretrial releases without bail “doubled” while recidivism “was cut in half.” 85 In New Orleans, a 2018 pilot program showed that individuals released pretrial without cash bail made court appearances “at the same rate as other defendants.” 86 Through the Safety and Justice Challenge, New Orleans has reduced unnecessary incarceration by using the PSA. 87 Conversely, in Atlanta, releasing numerous low-level offenders on personal recognizance rather than requiring cash bail has not had a completely positive outcome. According to statistics collected over a limited time, while the number of city jail inmates has been reduced, as the average daily jail popu-lation decreased last year from 439 in February to 249 in July and 137 in September, 71 percent more defendants skipped www.vsb.org bond in 2018 compared to 2017. 88 Virginia’s Bail Bond System In Virginia, a defendant held in custody pending trial has the right to be admitted to bail pursuant to Virginia Code § 19.2-120, unless the defendant is determined to be a fl ight risk or danger to the public. 89 In addition, a defendant has the right to request a bond hearing before a judge, 90 who considers a num-ber of factors in deciding whether a defendant is detained, re-leased, or offered a bond. 91 If the bond is approved, the defen-dant can either post the bond money directly with the court or seek the aid of a bondsman. The bondsman agrees to pay the full bond amount to the court if the defendant does not appear in court for all hearings. In exchange, the defendant typically pays a nonrefundable fee 92 to the bondsman. However, if the defendant is unable to afford either the bond amount or the fee, they will remain in jail until the case is decided. 93 Virginia Code § 19.2-123 is commonly referred to as the “Bail Reform Act.” This statute requires a judicial offi cer to consider releasing a defendant on personal recognizance 94 unless charged with a capital offense. 95 There are a number of criteria used by the judicial offi cer to determine whether to release the defendant on recognizance. Criteria for release on recognizance include: (1) the nature and circumstances of the offense; (2) the accused’s family ties; (3) employment; (4) fi nancial resources; (5) length of residence in the community; (6) record of convictions; (7) record of appearance or FTA at court proceedings; and (8) any other relevant information available to the judicial offi cer. 96 In addition, the judicial offi cer will impose further conditions of release on recognizance upon a determination that the appearance of the accused cannot be reasonably assured. 97 Call for Bail Reform in Virginia A long-standing practice “under fi re” by bail reform advo-cates and critics of cash bail in Virginia is setting bail bonds for defendants in an effort to ensure their “good behavior” and court appearance. 98 In October 2018, Virginia Attorney General Mark Herring (AG Herring) called for reform to Virginia’s cash bail system, asserting that the current bond system “unfairly advantages the wealthy,” while forcing too many low-risk, nonviolent offenders to languish in jail pending trial because they are unable to afford hundreds or thousands of dollars in bail. 99 AG Herring explained that the widespread practice in Virginia places an undue burden on the indigent, who risk losing jobs, connections with family support services, and driver’s licenses while they are in jail, thus raising possible constitutional concerns. 100 Essentially, AG Herring asserted that Virginia’s bond system causes unequal treatment of indigent defendants compared to those with suffi cient fi nancial resources, such that it may violate the equal protec-tion rights of the indigent. 101 Moreover, AG Herring said that detaining defendants who pose little fl ight risk or danger to the community wastes taxpayer money when alternative methods Cash Bail continued on page 53 27 CRIMINAL LAW SECTION | Vol. 68 | August 2019 | VIRGINIA LAWYER