“Democratic” Commonwealth Attorney Thinks It’s “Silly” for Legislators to Speak Out Against Bias in the Criminal Justice System

by Cindy

Arlington/Falls Church Commonwealth’s Attorney Theo Stamos thinks a letter to her from the entire Arlington and Falls Church legislative delegation, asking her to end the use of cash bail, is “silly.”

It’s undoubtedly “silly” to the young mother, arrested for a petty crime that she may or may not have committed, who will have to sit in jail up to 2-3 months waiting for her trial. I’m sure she’ll agree it’s “silly” that custody of her children is at risk, “silly” that she will lose her job, “silly” that her life will fall apart because she can’t afford the $1,000 bail.

But it’s okay, because the same prosecutor who insisted on a cash bail that this woman couldn’t afford will “generously” offer the woman a plea deal. And the woman, terrified of losing everything important in her life, will probably take that plea deal. Whether she committed the crime or not. Wouldn’t you, if pleading to something you didn’t do and getting probation would keep you from losing your child? And I’m sure this young, struggling mother will have no problem meeting the terms of her probation, right? Except perhaps when she needs to meet with her probation officer in Arlington on a Wednesday afternoon between 1pm and 4 pm, when she’s at her job in Prince William County all day. But maybe it’ll be okay, right? It’s “silly” to think she might end up back in jail for missing a meeting with her probation officer, right?

Stamos thinks the delegation should have called her first to talk about this. What would have been the point? She’d only have told them that “If [they] have a problem with cash bail, they should change the law. It’s perfectly within their power to do so.” But there are two problems with that:

1. It’s faulty logic. While a statewide law would force every jurisdiction to end the use of cash bail (a fine idea), there’s nothing whatsoever in the law to prevent individual jurisdictions from adopting policies of their own that do so. In fact, that’s exactly what Richmond Commonwealth Attorney Michael Herring did.

2. The reason the legislators are asking a Commonwealth Attorney, instead, is that the majority in the General Assembly is still held by Republicans. And while it’s conceivable they might find a Republican legislator or two who realizes the discriminatory application of cash bail and will support ending it, it’s unlikely he or she will be on a criminal justice committee, where the least empathetic Republicans sit. Perhaps if/when Democrats, who are typically more sympathetic to ways in which the criminal justice system is biased against poor people and minority groups, hold the majority, passing such a law will be possible.

I do agree with Ms. Stamos on one thing: it’s silly that Democratic legislators should even *need* to beg a Commonwealth Attorney who ran as a Democrat to address this. You might note that one of the top names on this letter is Senate Minority Leader Dick Saslaw, who has the reputation and voting record of a “tough on crime” Democrat. Being tough on crime does not mean turning a blind eye to bias in the criminal justice system, though, which is why his name is on this letter too. These legislators aren’t being “silly,” they’re doing their job protecting their constituents, even the ones who are poor or who might face arrest some day.

So the most important question is, why is this letter even necessary—why isn’t this Commonwealth’s Attorney, who was voted into office in 2015 by some of the most progressive voters in Virginia, already taking steps to end cash bail in her own?