GENERAL INTEREST Blacks and other minorities, and the present system is, in reality, state-imposed racial discrimination. When a defendant is acquitted or the charges dismissed, as occurs in a substantial percentage of cases, the end result is that an innocent defendant may wind up spending far more time in jail than if he or she had been convicted. In addition, he or she will always sustain great personal and family losses, that may not be repairable. I am personally aware of a heart-wrenching case where a falsely accused young woman of color lost her job and was evicted from her home, in a case where she was charged with a crime and arrested and required to remain in jail because she could not meet the cash bail requirement. The case against her (after several adjournments) was dismissed. For her, life as it existed was completely destroyed. When her nightmare in jail ended, she was homeless and without employment. I do not think her case was a rare exception. The jailing of indigent defendants awaiting trial clearly leads to this type of tragic result. Virginia Code Section 19.2-80 sets forth the statutory authority for imposing bail. That Section only provides that in any case in which an arresting officer does not issue a summons, “a law enforcement officer making an arrest . . . shall bring the arrested person without unnecessary delay before a judicial officer. The judicial officer shall immediately conduct a bail hearing and either admit the accused to bail or commit him to jail.” Thus, Section 19.2-80 specifies only for “bail or jail.” Code Section 19.2-123 contains the conditions upon which a judicial officer may impose pre-trial release of one accused of a misdemeanor or felony. These conditions expand what is meant by “bail” in Section 19.2-80, in that they allow for “bail or jail,” but Section 19.2-123 provides for conditions not tied to cash: (1) placing the accused in custody of a designated person or organization, (2) placing the person on restrictions, (3) and for a number of additional authorized conditions for release that are specified that may be imposed if deemed necessary to assure appearance at trial, and to monitor a defendant’s pre-trial conduct. Importantly, there are no directions as to when and under what conditions www.vsb.org judges within the Commonwealth should select any specific terms for release. Further, and disturbingly, neither Section 19.2-80 or Section 19.2-123 speak to presumptively releasing a person on their own recognizance if the individual poses no risk to the community, and where there is little risk that the individual will fail to appear for trial. When a defendant is acquitted or the charges dismissed... the end result is that an innocent defendant may wind up spending far more time in jail than if he or she had been convicted. Judge Bernhard’s decision that “the imposition of the cash or surety bond . . . would only be the product of resort to custom, instinct and arbitrary action, and thus would be an unconstitutional application of the Virginia statutory bail bond scheme, in derogation of the Due Process Clause of the United States Constitution,” is a great victory for all who insist that Equal Justice Under Law must prevail in Virginia. It is, however, only a very important and much needed “stop gap” remedy. The Constitutional infringement presented by use of cash bail must be fixed by the General Assembly. It is urgent that the General Assembly move with all deliberate speed to abolish Virginia’s antiquated, unconstitutional cash bail system. We welcome opinion editorials from Virginia lawyers on topics relevant to the legal profession and justice. Please send your submission to Deirdre Norman at dnorman@ vsb.org, or call (804) 775-0594. Clarence Dunnaville Jr. is a well-known attorney, civil rights veteran, legal reformer, author, and activist for justice. He is the inaugural recipient of the Virginia State Bar’s annual Clarence M. Dunnaville Jr. Award, created in honor of his unceasing devotion to improv-ing diversity and equality in the Commonwealth. GENERAL INTEREST | VOL. 69 | FEBRUARY 2021 | VIRGINIA LAWYER 33