cRIMINAL LEGAL SYSTEM:

PRETRIAL JUSTICE

On any given night, Virginia jails hold over 28,000 people, roughly 1 in 200 Virginians between the ages of 15 – 64. Of those, around 13,000 are being held pretrial—so 46% of people in our jails have not been convicted of any crime. And the problem has been getting worse: between 2012 and 2017, the average daily population of Virginians held in jail pretrial increased by 10%. 

We are fighting to minimize the number of people held pretrial in Virginia because pretrial detention and over-surveillance harms individuals, families, and communities. Pretrial detention and over-surveillance can lead to lost jobs, housing instability, missed medication and families being torn apart.  Pretrial justice is also a racial justice issue. Though Black Virginians make up only about 20% of our state’s population, they comprise 43% of Virginia’s jail population described above. For more detailed data, click here. 

Our pretrial justice work primarily takes the form of policy advocacy and organizing through the Pretrial Justice Coalition, a group of policy advocates, organizers, and people impacted by the criminal legal system from across Virginia, which we helped found and continue to help lead. To us, pretrial justice means going deeper than “quick fix” solutions, to ensure that any changes reduce the overall number of people detained pretrial while also eliminating racial and wealth disparities. 

One of our biggest victories in recent years was the repeal of presumptions against bail, the system that required those accused of certain offenses to automatically be jailed pretrial rather than have their cases evaluated individually at bail hearings. There have been some attempts to bring back presumptions against bail, but so far due to the strength of opposition from the Pretrial Justice Coalition and other advocates, those efforts have not been successful. 

Other major pretrial justice issues we have been involved with in recent years include fighting for statewide counsel at first appearance and general bail reform efforts. Here is some information about the injustices in Virginia’s pretrial system : 

• In Virginia, after an arrest, a person is taken before a magistrate (not a judge) to determine bail. These proceedings happen behind closed doors, not in open court. During the initial hearing with the magistrate, the accused person is not provided an attorney. Almost universally, people accused of crimes have no lawyer at their initial bail hearing. 
• After the magistrate appearance, accused people will go before a general district court judge for an “arraignment,” where bail can be modified. In most Virginia jurisdictions, individuals are not assigned a lawyer at arraignment—and languishing in jail for weeks without access to an attorney makes it more likely that the accused person will lose housing, a job, access to medical care, or even their children. 
• Virginia still uses a secured bond or “money bail” for all levels of offenses, including misdemeanors. This is when a person accused of a crime is ordered to pay a certain amount of money to be free before trial. When people cannot afford to pay, they remain incarcerated, essentially being punished long before their case is ever heard.  
• In addition to the secured bond, magistrates and judges in Virginia can decide to hold people without bond for any type of offense, including misdemeanors. This means the person will be kept in jail until their trial—even if there is no evidence that they would flee or pose a threat to public safety, and regardless of whether they could meet conditions that would help them return to court.  

• When people are held pretrial, it creates immense pressure to plead guilty to crimes (regardless of potential defenses or innocence) to minimize or avoid the destabilizing effects of being in jail, which increases mass incarceration.