WINCHESTER — Jailed on drug and failure to appear in court charges related to a Sept. 18 overdose, Brittany Gore asked Judge Ian R.D. Williams to free her to take care of a disabled person for whom she is the sole caregiver.
“I’ve been locked up for almost 30 days. I just got here from another jail,” Gore said by video from the Northwestern Regional Adult Detention Center in Frederick County during a Jan. 30 bond hearing in Winchester General District Court. “I was wondering if I could get a PR (personal recognizance) bond.”
In Virginia, defendants who get personal recognizance bonds or unsecured bonds are released on a promise to appear in court. They’re on the hook for the bond if they don’t show up.
The other option is a secured bond. Defendants must pay the bond, which is reimbursed when they appear in court. If they can’t afford the bond, they pay a non-refundable fee — 10 percent of the bond — to a bondsman who posts the bond. If the defendant absconds, the bondsman, or bondswoman, is on the hook.
However, the co-signer for the bond, usually a friend or relative of the defendant, can be sued civilly by the bondsman to recover the money. Or the bondsman can track down the absconder, or use a bail enforcement agent, also known as a bounty hunter, to capture them.
Williams, the presiding judge in Frederick and Winchester general district courts, gave Gore a $5,000 unsecured bond that she’ll be liable for if she doesn’t attend her next court appearance on June 5.
“You don’t have to pay or get a bondsman,” Williams told a grateful Gore. “Don’t make me look bad.”
Gore, who was homeless when she was arrested, went free, but some people who can’t afford to pay a bondsman remain jailed for weeks and months awaiting trial contributing to jail overcrowding. Last month at Northwestern, about 350 of the approximately 600 inmates in the jail, or 58 percent, were awaiting adjudication of their cases. Those considered a danger to the community or a flight risk are being held without bond. The jail doesn’t keep statistics on how many inmates are being held because they can’t afford to make bond.
Overcrowding and cost concerns — it costs $29,200 annually to house an inmate at Northwestern — and questions about the morality of imprisoning people charged with nonviolent offenses like Gore have led to calls around Virginia and the nation for abolishing or reforming the bail bonds system.
“To come up with money for release, far too many people and their families are lured into exploitative arrangements with bail bond corporations that typically charge a nonrefundable fee of 10 percent of the full bail amount,” said Selling Off Our Freedom, a 2017 report by the American Civil Liberties Union and Color of Change, an online racial justice organization. “With little accountability, the for-profit bail industry has thus created a way to profit from usurping the role and function of the courts, trapped families in debt while escaping scrutiny for consumer practices, made armed arrests and surveilled people without meaningful oversight by police and evaded insurance regulators.”
The report said less than 10 insurance companies underwrite the majority of the roughly $14 billion in bonds issued annually in the U.S. In an October letter to 22 insurers, U.S. Sen Cory Booker, D-N.J,, and U.S. Sen. Sherrod Brown, D-Ohio, asked for more oversight of bail bond agents. They said bondsmen earn more than $2 billion annually in profits from bond premiums and fees.
“As a result of these costs, consumers in the bail industry frequently find themselves trapped in a cycle of debt and fees related to their payments, often for long after the original charges with the courts have been resolved,” Booker and Brown wrote. “We are concerned that many of our nation’s insurance companies may be pursuing profits at the expense of economic security for vulnerable families and the goals of public safety.”
Busted and broke
Winchester defense attorney William A. “Beau” Bassler, an attorney since 1998, said that when he did court-appointed work, he had a small percentage of clients who were jailed for months because they couldn’t afford $200 or $300 for a bond.
“Oftentimes you had to advance the case and plead guilty, just basically lay down for it, because they were just sitting in jail,” he said. “Whereas, if they had the money, they would have been able to bond out and wait until their trial date and maybe they would’ve won at trial.”
Nonetheless, Bassler said he supports the bail bond industry. He said only a small percentage of defendants can’t afford bonds, and bondsmen save the taxpayers money by ensuring defendants appear in court rather than having police track absconders down.
Bassler said it’s also less expensive to have bondsmen help people post bond for their friends or relatives rather than lawyers. “In the practical world that we live in, the attorney is just not there,” he said.
However, Illinois, Kentucky, Maine, Massachusetts, Nebraska and Oregon, Washington, D.C., and Wisconsin all don’t have cash bail or bondsmen, according to aboutbail.com, an industry-sponsored website. New Jersey eliminated cash bail in 2017, with judges choosing between keeping defendants deemed a flight risk or a danger in jail or releasing them on their own recognizance. California eliminated bail last year and the change was scheduled to take effect in October, although the powerful bail bonds industry helped get a referendum on the ballot to try to reinstate it.
In Virginia, Michael N. Herring, Richmond commonwealth’s attorney, announced in April that his office would stop seeking cash bonds. If defendants — all of whom must undergo a pre-trial assessment by probation officers — are deemed a flight risk or a danger to the public, prosecutors ask judges to hold them without bond. All other defendants are released on their own recognizance or under pre-trial supervision, a monitoring system similar to probation. Herring told the Richmond Times-Dispatch that cash bonds are ineffective.
“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,” he said. “It just doesn’t work out that way.”
Marc Abrams, Winchester commonwealth’s attorney, and Ross Spicer, Frederick County commonwealth’s attorney, disagree. “If you’re putting up a lot of money, I think you’re more likely to show up,” Abrams said.
Abrams and Spicer said they prefer to decide on seeking bail for defendants on a case-by-case basis and avoid asking for bond for nonviolent defendants who aren’t likely to skip out on their court date.
“If an attorney comes to us with a case where someone is locked up on a relatively minor charge and their financial situation is such that they can’t afford bail, we will look at that case and either resolve the case earlier than it would’ve been resolved, or frequently we’ll come to an agreement as to bail that will allow the person to be released prior to his or her trial,” Spicer said.
Spicer said it’s overly broad to exempt defendants from bond based on what they’ve been charged with. He also noted that pre-trial assessments regarding bond are primarily based on answers given by defendants. Probation officers may not have all the necessary information before scoring whether a defendant is a flight risk or dangerous. Spicer said it’s up to Virginia lawmakers, not prosecutors, to decide whether to eliminate or reform the bail-bond system.
In an October news release and letter to the Virginia Crime Commission, Virginia Attorney General Mark R. Herring no relation to Michael Herring) — called on the legislature to enact reforms. Mark Herring noted it costs about $3 per day in Virginia to monitor someone in pretrial supervision compared to $85 per day to keep them in jail.
In the 2017-18 fiscal year, Herring said 28,000 Virginians were released under pretrial supervision with 94 percent showing up for their next court date. But despite being under supervision, Herring said about two-thirds were required post secured cash bonds. Herring said Virginia is at risk of violating the Eighth Amendment prohibition on “excessive bail” and the 14th Amendment’s guarantee of equal protection under the law.
“Virginia has no real methodology to determine an appropriate amount of bail and numerous studies have shown that people who cannot afford bail are more likely to be coerced into taking plea deals, even when they are innocent, because of their desperation,” Herring wrote to the commission. “While pretrial detention is certainly appropriate for violent or high-risk offenders, there is more we can do to properly handle low-risk offenders who cannot afford a cash bail bond and who have been determined by a screening tool to not be a threat.”
Reform efforts, though, died in the House of Delegates in the current session. Two bills designed to provide more statistics on how bail is set based on a defendant’s income, race and sex, were defeated.
Del. Chris Collins, R-Frederick County, a defense attorney who frequently practices in Frederick and Winchester circuit courts, voted against the House bill leaving the Courts of Justice Committee, of which he is a member. Collins said the tens of millions of dollars it would have cost for the computer systems to collect the bail data was cost prohibitive.
Collins, an attorney since 2004 and a Frederick County Sheriff’s office deputy from 1997-2003, opposes eliminating the bail bond industry. He said if judges could only choose between keeping people locked up or releasing on their own recognizance, more defendants would be locked up due to judges erring on the side of caution.
Collins said bondsmen provide another level of scrutiny of defendants and another incentive for them to show up in court. And Collins said judges have been understanding when he’s represented indigent clients who couldn’t afford low bonds. “We don’t have individuals rotting away in jail because they can’t post $100,” he said.
Paying bonds and developing them
Teresa Copenhaver and Paul Pennington are well aware of the call to eliminate their industry and say it’s misguided. The two own Elite Bail Bonds, a small company that opened in Winchester in 2015 and has an office in Martinsburg, W.Va.
Copenhaver and Pennington said the image of bondsmen as just out for a buck is unfair. They said they support laws to punish unscrupulous bondsmen who take advantage of clients such as those who charge exorbitant fees.
“Bonds have done their job for years and years and years,” Copenhaver said. “It’s not broke, it doesn’t need to be fixed, but, hey, we may need to tweak it a little bit.”
Pennington said the average bond in Virginia is between $2,500 and $3,000. In addition to paying 10 percent of the bond, the person who signs for the bond can pay up to 12 different fees, which add up to about $535. But Elite only charges fees for clients who abscond: a $75 per hour recovery agent fee, 57 cents per mile for driving to make the recovery, and a $50 surrender fee.
Pennington said he and Copenhaver are careful about who they post bonds for, and skips are rare. Elite has never had to forfeit a bond.
Copenhaver and Pennington said clients sometimes miss court for legitimate reasons. Some are addicts or alcoholics and miss court because they’re hospitalized or imprisoned in another jail. Some have revoked or suspended licenses or can’t afford a car so they have problems getting to court.
Other than the absconder who rammed his car with a vehicle while trying to flee, Pennington said most clients are cooperative and call if they’re in danger of missing court. Pennington, a Maryland corrections officer from 1994 until retiring in 2015, said he and his staff treat clients and their families with empathy and respect.
“It’s not our job to judge them,” Pennington said. “We’re there to provide a service.”
Families of clients are often stressed out and unfamiliar with how the legal system works when they show up at the Elite offices or at jail to make bond. Copenhaver and Pennington said they try to be supportive and educate them about the process.
They say they’ve worked out payment plans for poor people — interest cannot be charged on the 10 percent bond fees in Virginia — given clients rides to court, and helped them get jobs.
“Of course we’re in business to make money,” Pennington said. “But we’re also in business to help people.”