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Presumptions Against Bail Not Supported by Data

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, analysed this data and produced a report of his findings (released on 1/24/23). 


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.  

Click here to read full report

More about presumptions against bail and why they should not be reinstated

In 2021 Virginia made a huge stride forward when it repealed its presumptions against bail. Now some state law makers are trying to reinstitute them without any empirical evidence to show that they work, There is however ample evidence that they cause harm to the individual and to our greater community.

Under current law, judges and magistrates have the power to make the decision to release or detain a person after arrest. They must make those decisions based on factors outlined in the statute that were developed in consultation with many stakeholders including domestic violence advocates.

What is a presumption against bail?

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 opposite from how criminal cases 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 support of, or representation from, an attorney while being cautioned that “everything you say can and will be used against you.”

What is the history of presumptions against bail?

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.

Why should the repeal of presumptions stand?

In Virginia, the decision to reinstate presumptions is being made due to fear-based reactions rather than evidenced-based decision making, a process that is now understood to be the best way to make criminal reform decisions.

While bills are being advanced to reinstate these presumptions, there has been no statistical analysis of the number of individuals affected or whether presumptions actually increase public safety.

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