Virginia Code Section 19.2-119 defines Bail as the pretrial release from custody upon terms specified by a judicial officer (magistrate or a judge). Locally, when a person is arrested for an offense that could result in jail time, they are taken in front of a magistrate to determine whether bail will be set. If the magistrate denies bail, the person will be taken in front of a judge within a reasonable time (not the same day) to have a “bail hearing” to determine whether to uphold the decision of the magistrate.
If the charges brought begin in General District Court (GDC) or Juvenile Domestic Relations Court (JDR), a judge in that court will make the determination. That decision is appealable to the Circuit Court (CC) by either the defendant or the Commonwealth Attorney. If the Commonwealth Attorney appeals the bail hearing, the Court may “stay” the execution of the bail (the posting of the bond for release) until an expedited hearing may take place. Either appeal will result in another hearing being held within a reasonable time, though again not on the same date.
If the charges brought begin in CC (such as a straight indictment through the Grand Jury), the bail hearing will begin in CC.
Bond is defined as the posting by a person or surety (bondsman) of a written promise to pay an amount of money (bail) ordered by the judicial officer to ensure performance of terms and conditions of bail including their appearance in court.
Virginia Code Section 19.2-120 states that a person pending a trial or hearing, shall be admitted to bail, unless there is reason to believe:
- They will not appear for trial.
- They are an unreasonable danger to himself/ herself.
- They would constitute an unreasonable danger to the public.
When determining whether a person will appear for trial the judicial officer (magistrate or judge) will consider multiple factors, including;
- The length of time the defendant has lived in the community.
- Whether the defendant has ever been charged/ convicted of failing to appear in court
- Any statements made by the defendant about his/her willingness to appear in court
- Family ties to the area
- Seriousness of the charges alleged and whether those charges would require mandatory incarceration if they resulted in conviction.
When determining whether a person is an unreasonable danger to himself/ herself, consideration will be given to;
- Whether the defendant has a history of substance abuse issues
- Whether the defendant has mental health issues
- Whether the defendant is considered a suicide risk
When determining whether a person is an unreasonable danger to the public, the factors to be considered include;
- The nature of the criminal act alleged.
- The criminal history of the defendant.
- Whether the presence of a firearm is alleged.
- The weight of the evidence alleged.
- Risk to obstruct justice (witness tampering)
Once it has been determined that the defendant should receive bail, Virginia Code Section 19.2-121 determines what the terms of that bail should be. It states the bail “shall be reasonable to ensure appearance and to ensure his/her good behavior pending trial”.
In addition to the same list of factors that have already been considered, the judicial officer setting the bail should also consider the defendant’s financial resources to post the bond.
The two types of bail that may be set are;
- Unsecured- the defendant is only required to “promise to appear” and no other bond needs to be posted,
- Secured- this requires a surety (bondsman) or a cash/ property equivalent to secure the defendant’s release and appearance in court.
If the charge alleged is a felony and the defendant has a previous felony conviction or is already “on bond” for a felony charge, the bail set shall be a secured bond unless there is an agreement otherwise between the defendant and the Commonwealth Attorney.
Conditions, in addition to a financial amount, may be set by the judicial officer, as a part of the bail. These include;
- Pre-trial services- this is often referred to as pre-trial probation.
- Drug or alcohol testing
- Travel restrictions- it is common for the Court to impose a ban on travel outside of the Commonwealth during the time a case is pending (this may be appealed under certain circumstances)
- Restrictions on possessing a firearm.
- Use of a GPS monitor- an ankle worn device to ensure the defendant does not leave a certain prescribed area (at the defendant’s expense)
- Use of a SCRAM device- an ankle worn device that ensures the defendant is monitored for any alcohol use (at the defendant’s expense)
- Seek and maintain employment or educational activities.
- No contact with victims, or other witnesses/ co-defendants
Virginia Code Sections 19.2-11.01 details the rights of Crime Victims and Witnesses. It states, in part, that victims and witnesses have a right to be notified of “all critical stages” of the criminal justice process, allowing them an opportunity to be heard. They are also to be given advance notice of judicial proceedings (bail hearings included) and be notified when defendants are released on bail.