Prior to the repeal of presumptions against bail in 2021, there were a list of offenses that, would subject a person to pretrial detention. This meant that simply by being charged with one of these offenses, there was a presumption against bail and for pretrial detention. 

This presumption shifted the burden from the Commonwealth’s Attorney needing to show why this person should be held in jail, to the person accused needing to prove why they should be released. This is the opposite of how criminal cases are meant to function in our country, where the burden is always on the prosecutor to prove that a person’s liberty should be taken away. Often people would have to rebut this presumption without the support of an attorney. 

Presumptions against bail were first introduced in Virginia in 1996. At that time, the Virginia General Assembly (GA) passed a new statute inserting a rebuttable presumption on the basis of three specific conditions associated with major drug distribution offenses (for example, the defendant had previously been convicted as a “drug kingpin”). In these cases, the burden of proof was shifted to the defendant to show that the defendant did not pose an unreasonable danger and would appear for subsequent hearings. Over the ensuing 25 years, this relatively narrow set of exceptions was dramatically expanded 10 times to cover more than 40 circumstances. 

In December 2021 the Virginia Criminal Sentencing Commission released data from the Pretrial Data Project’s first cohort from October 2017.  This is the latest data on how Virginia’s pretrial system actually functions 

Ariel BenYishay, Associate Professor of Economics at the College of William & Mary, analyzed this data and produced a report of his findings (released on 1/24/23).  

KEY FINDINGS: 

• More people were subjected to presumptions against bail than many assumed.  At least 9.5% of all those charged and possibly over 30% of all those charged. 
• The data does not support that those facing presumptions against bail were more likely to be involved in criminal activity while awaiting trial.  In fact, those facing presumptions, regardless of how high their risk assessment score is, were no more likely to reoffend than those not facing presumptions.  

• Despite there being no increase in risk, those facing presumptions are much less likely to be released pretrial.  While 83% percent of those charged were released when presumptions were not involved, only 50% of those facing presumptions were released. Even those with the lowest risk assessment score were more likely to be held if facing a presumption 
• The presence of presumptions (prior to 2021) likely cost at least $65 million in additional jail operating costs (with at least $23M of that borne by the Commonwealth budget) and created significant unmeasured burdens on defendants, their families, and communities, without improving public safety.

Presumptions against release on bail result in inequities in our legal system – those who have resources are often able to overcome the presumptions while people who can’t afford an attorney are left detained while they wait for their case to be heard. Black, Latine, Indigenous, and Asian and Pacific Islander Virginians are more likely to not be able to hire their own attorney, though this impacts many working class and poor white Virginians as well. 

• Public safety encompasses far more than arrest numbers. Public safety means members of the community maintain their housing and job security, can be home to care for their children, and uplift and support their community. 
• Detention is deeply destabilizing and traumatizing, and strips people of far more than their individual freedom. Numerous studies show that as little as three days of detention can completely uproot an individual and cause housing instability, loss of employment, and family destabilization. This destabilization and trauma can lead individuals to make poor decisions. Data confirms that jailing individuals pretrial for any length of time is associated with a higher likelihood of a new arrest before trial. 
• People who are not a flight risk and pose no danger to the public or themselves should be able to defend their criminal case from the safety of their homes and with the support of their families, rather than behind bars 

• In the first six months after the repeal of presumptions went into effect, there were 8,482 individuals who were charged with at least one offense that would previously have triggered a presumption against bail. Annually around 17,000 Virginians were presumed to need to be detained pretrial based on charge alone. 
• Virginia estimates that each of those 17,000 people that we detained would’ve been held for 47.54 days. That is 806,469 days of detention each year  not based on anything specific about their case or the accused person. 
• In 2020, estimated total state support for local jails averaged $37.58 per person held, per day.