As the coronavirus pandemic causes establishments to consider social distancing, jails across the country are also looking at how bail can play a role.
“There’s a lot of layers to it,” said Nate Green, commonwealth’s attorney for Williamsburg-James City County. “When all the coronavirus stuff started coming out and the government and public safety deputy started sending out recommendations on how to handle things, one of the concerns was how difficult it was to do social distancing in jails and prisons.”
Virginia in April reduced the population in jails by 17 percent. It was done partially by reducing the number of low-risk offenders being held without bail.
But as the pandemic continues, those who are being held on secured bonds with no way to pay could find themselves stuck in a risky situation.
Nationally, the majority of individuals in jail are being held for pretrial detention, which means the individual is still waiting for trial, according to a report form the Prison Policy Initiative. Attorney General William Barr on April 6 ordered attorneys across the country against seeking pretrial detentions as they would prior to the pandemic.
Green said that recommendation didn’t really impact WJCC because the district already has a low number of individuals being held with secured bonds.
“Every jurisdiction is different and every jail is different,” he said. “We make a binary decision [on whether] an individual will be a danger to the public or not show up to court if released. If the answer is yes, then we argue we shouldn’t give them bond. My stance is that no amount of money will change the answers to this question.”
As an established policy, WJCC does not recommend or request secured bonds, Green added in an email. In a majority of cases, individuals who have been arrested in WJCC will be released on unsecured bonds pending their trial. Unsecured bonds mean there is no requirement that money be provided in order for the individual to be released pending their trial, he said.
The idea of lowering bond rates doesn’t really fit the district because anyone being held for trial is being held without bond or through unsecured bonds for the most part.
Green said there are only four people who were given a secured bond in WJCC by either the magistrate or a judge and have been unable to post the necessary funds to be released. Three of the four were moved to Eastern State Hospital.
“For our jurisdiction, there haven’t been a whole lot of changes because before the virus we were already making sure people weren’t being held in jail because they weren’t able to pay the bond,” Green said.
He said another layer of complexity to the issue is that in the past, when the district used pretrial to determine someone is safe, it could be based on the requirements of drug testing or counseling. Now those options have become limited.
“There’s a number of treatment options out there that make us feel like they’re safe in the community, but a lot of those treatments have closed,” he said. “It does impact my confidence…but we’re not saying we’re not going to do it now…we just have to monitor the activities of individuals a little more closely now.”
Noah Weisberg, an attorney and co-owner of Weisberg & Weisberg, PLLC, said while most of his clients can afford a cash bail, the courts have been moving away toward other conditions of release prior to the coronavirus.
But the pandemic has definitely changed the way he approaches a trial.
“The reality is a lot of sentencing is getting continued if not, all of them,” he said.
One way to help his clients awaiting trial is to cite the 8th Amendment, which prohibits cruel and unusual punishment.
Weisberg said the Supreme Court in previous cases has ruled contagious diseases would result in unsafe conditions and since it is illegal to have pretrial punishment for individuals, he might be able to push the argument in a bond meeting.
“In bond hearing, I have found the commonwealth attorney we are working with and the judges we are working with are very receptive,” he said.
For their clients who were previously denied bail, Weisberg asked the judge to reassess the conviction and consider an alternative.
Almost all of his clients who were incarcerated with pending charges were released on bail except for one man who hired him three days before the Supreme Court’s COVID-19 order.
“When you have people sitting in jail that long…nevertheless, I think people are sensitive to the notion that is a long time to be waiting for trial when you are presumed to be innocent,” he said. “Perhaps it’s not a violation of the speedy trial, but it’s not right.”
One of Weisberg’s clients, who lived out of state, was charged with a felony, he said. The judge denied her two times even with a GPS tracking monitor agreement but after the coronavirus hit, he agreed to let her out.
“Miraculously that was all done by pushing paper,” Weisberg said. “I didn’t have to leave my office.”
Weisberg said the state previously considered another client a public health threat, something Weisberg noted is especially common in cases involving allegations of violence, but after the coronavirus, the court granted his client bond.
“I really think the virus is changing the way people are thinking about the need for pretrial detention,” he said. “COVID-19 in my experience, changed, sort of the way that courts and the commonwealth seem to be approaching these decisions and I think it’s a good thing.”
Those in jail who have not been transferred to the Department of Corrections can appeal and ask the judge to reconsider their sentence.
“The question is, does it make sense to file that if you were sentenced last week?” Weisberg said. “There becomes another issue on this: Are the courts going to conduct hearing on these requests or not?”
“Judges have a great deal of discretion as it pertains to how they preside in their courts and precisely how they want to handle these requests,” he added.
WYDaily reached out to two public defenders from Virginia Indigent Defense Commission but neither was immediately available for comment.
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